Trieu v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 1153
•22 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trieu v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1153
File number(s): SYG 2575 of 2019 Judgment of: JUDGE CAMERON Date of judgment: 22 July 2025 Catchwords: MIGRATION – Partner visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision – no matter of principle. Legislation: Migration Act 1958 (Cth) s.5F, 474
Migration Regulations 1994 (Cth) reg.1.15A, cl.820.211, cl.820.221
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 59 Date of hearing: 9 May 2024 Place: Perth Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: DNG Lawyers & Migration Counsel for the Respondents: Mr S Murray Solicitor for the Respondents: HWL Ebsworth ORDERS
SYG2575 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DINH SON TRIEU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
22 JULY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant is a citizen of Vietnam who arrived in Australia on 23 June 2012. On 22 December 2014 he lodged an application for a Partner (Temporary) (Class UK) subclass 820 visa and a Partner (Residence) (Class BS) subclass 081 visa with what is now the Department of Home Affairs (Department). On 24 August 2017 the applicant’s application was refused by a delegate (Delegate) of the first respondent (Minister). The applicant then applied to the Administrative Appeals Tribunal (Tribunal) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
At all material times cl.820 of sch.2 to the Migration Regulations 1994 (Cth) (Regulations) provided relevantly as follows:
820.21--Criteria to be satisfied at time of application
820.211
…
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
...
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner …
820.22--Criteria to be satisfied at time of decision
820.221
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause …
At all material times, s.5F of the Act provided:
5F Spouse
(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A of the Regulations relevantly provided:
1.15A Spouse
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
...
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day‑to‑day household expenses; and
(b) the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
BACKGROUND FACTS
In its decision the Tribunal summarised in the following terms the relevant history of the matter and claims made by the applicant in support of his visa application:
6.The applicant … first entered Australia in June 2012 as the holder of a Subclass 573 Student visa.
7.The sponsor … first came to Australia on a Subclass 309 Partner visa in April 2011 and became a permanent resident of Australia in August 2013.
8.In a section of statutory declaration, dated 12 August 2019, titled ‘Clarification of relationship’, the parties claim to have first met in March 2014 in Toongabbie, NSW, through an introduction to each other from the applicant’s elder sister. They claim a friendship developed, which turned into a committed relationship in September 2014, followed by their marriage on 15 November 2014.
9.The applicant provided documents to the Department in support of the application including but not limited to the following:
•Marriage certificate, dated 15 November 2014;
•Relationship statements;
•Joint itinerary for travel from Sydney to Hanoi (return trip via Ho Chi Minh City);
•Two 888 witness support declaration forms;
•Commonwealth Bank (CBA) joint bank account statement dated 18 June 2016 showing transactions from 21 March 2016 to 17 June 2016;
•Copy of the applicant’s driver’s licence showing residential address;
•Copy of the sponsor’s licence showing residential address;
•Two letters to the applicant showing residential address – one from Kinetic Superannuation and one from CBA;
•Evidence that the applicant had declared the sponsor as his superannuation beneficiary;
•Two letters to the sponsor showing her address – one from the Australian Electoral Commission (AEC) and one from CBA;
•Photographs.
10.In the decision record, a copy of which the applicant provided to the Tribunal, the delegate made the following points:
•Despite being specifically requested to provide evidence covering the entire claimed duration of the parties’ relationship the applicant only provided a joint bank account statement covering a three-month period in 2016 to support the financial aspects of the relationship;
•Only limited evidence of cohabitation, covering a restricted period of time, rather than the full duration of the claimed relationship, was provided;
•The joint itinerary for travel from Sydney to Hanoi (return trip via Ho Chi Minh City), which was provided with the visa application encompassed a period, 21 March 2015 to 27 April 2015, in which the applicant’s movement records show he remained onshore in Australia.
11.At and prior to the hearings the applicant provided documents to the Tribunal including, but not limited to:
•CBA joint bank account statements showing transactions for periods from January 2016 to June 2019;
•Residential tenancy agreement for a property at Canley Heights, four-bedroom with a two-bedroom attached unit, covering periods May 2018 to December 2018 and May 2019 to May 2020;
•Rent receipts;
•Copy of the applicant’s 2018 Australian Taxation Office (ATO) taxation return;
•Photographs;
•Two 888 witness support declaration forms both dated 15 July 2019, from Nhung Bartolo and Quoc Huy Truong.
•Copy of a household register for the applicant’s parents in Vietnam;
•Written statement, dated 3 October 2017, from the applicant’s parents;
•Travel itinerary and receipt for flights from Sydney to Ho Chi Minh City on 27 September 2017, returning from Hanoi to Sydney 3 October 2017.
The applicant and sponsor attended a hearing before the Tribunal on 24 July 2019 at which the applicant presented submissions and evidence in support of his visa application. Oral evidence was also given by two witnesses, the applicant’s sister and the sponsor’s brother. In its decision, the Tribunal summarised as follows issues which had arisen regarding the genuineness of the parties’ relationship:
The s.376 certificate
14.In the Departmental file, there are documents covered by a certificate issued under s.376 of the Act. The Tribunal provided a copy of this certificate to the applicant and sought his comment or submissions regarding the validity of this certificate. …
15.The Tribunal took the applicant’s comments into account and indicated it considered the certificate issued under s.376 to be a valid certificate …
…
17.The Tribunal, in accordance with the requirement to provide the applicant with the opportunity to comment on or respond to information that he has not provided which does not support his claims, put particulars of information to him from documents covered by the s.376 certificate, pursuant to s.359AA of the Act, explaining the reasons why that information was relevant and what the implications were if the Tribunal relied on that information. The Tribunal also advised the applicant he could seek time to consider what comment or response he would like to make to the information.
18.The particulars of the information put to the applicant for his comment or response were:
•an allegation that his relationship with the sponsor is not genuine and is rather a contrived relationship for migration purposes;
•an allegation that both he and the sponsor are in relationships with other people;
•an allegation that he paid the sponsor to pretend to be in a genuine relationship with him;
•an allegation that he is not the biological father of the sponsor’s child.
19.The Tribunal told the applicant that this information is relevant as it raises a concern he has not provided truthful evidence about the parties’ relationship, which gives rise to the concern he is an unreliable source of information and that evidence he has provided in support of the visa application cannot be relied upon …
20.The applicant did not seek additional time to respond to the issues raised by the Tribunal. He said that he and the sponsor have known each other for five or six years, which is a long time. He said that he wants to be beside his wife and their child because it is his responsibility to be so and not just because of love. He said that he wants to be with them and to care for them both for the rest of his life.
In relation to the applicant’s claim that he was the biological father of the sponsor’s child, the Tribunal’s decision also recorded that:
Following the hearing and in response to his oral consent to undertake DNA testing to verify his biological connection to the sponsor’s child … the Tribunal wrote to the applicant inviting him to confirm his willingness to undergo DNA testing and to provide him with information regarding this procedure. In response, on 13 August 2019, the Tribunal received a statutory declaration from the applicant and sponsor, dated 12 August 2019, in which they attested to: the genuine nature of the relationship; their parentage of the sponsor’s child; commented on different aspects of the relationship; but indicated they were not willing to undergo the requested DNA testing.
…
THE TRIBUNAL’S DECISION AND REASONS
After discussing the claims made by the applicant and the evidence before it the Tribunal affirmed the Delegate’s decision on 12 September 2019.
Spousal relationship
The Tribunal found that the applicant and the sponsor had been validly married on 15 November 2014, satisfying the requirements of s.5F(2)(a) of the Act.
The financial aspects of the relationship
The Tribunal considered the financial aspects of the parties’ relationship including copies of their bank account statements, financial records and joint property leases. Its conclusion concerning the financial aspects of the parties’ relationship was encapsulated in para.42 of its decision record:
The documentary evidence which has been provided with the visa and review application does not in the view of the Tribunal support a contention that the financial aspects of the parties’ relationship was at the time of application, or at the time of this decision indicative of two people who have a mutual commitment to a shared life together. They have no shared assets, joint liabilities or financial obligations to each other. The bank account statements and other financial records provided to the Department and Tribunal do not demonstrate that the parties pool their finances to any significant extent with respect to either major or minor financial commitments. There is no convincing evidence to support the claim the applicant’s earnings from his job as a truck driver go towards meeting the sponsor and her child’s day-to-day expenses. The evidence as to the basis upon which the parties share day-to-day living expenses is not persuasive. Whilst their names are both on a rental tenancy lease, there is no documentary evidence to support the applicant’s claims as to whether the bond payment, rent and utility costs for this property are a shared expense. The Tribunal finds the financial aspects of the parties’ relationship do not support the contention they are in a genuine and continuing relationship.
Nature of household
The Tribunal’s conclusions concerning the domestic aspects of the parties’ relationship was encapsulated in para.52 of its decision record:
In terms of the evidence regarding the nature of the household arrangements that was provided with the visa application, which included: cohabitation documents, such as rental tenancy leases, rent receipts and other correspondence showing the parties sharing a residential address, the Tribunal is of the view that bank accounts, utility accounts, tenancy agreements, receipts and the like, taken out in joint names, or addressed to the same residential address, do not establish two people are living together in a shared household and that such evidence can be arranged even if the relationship is not genuine. The Tribunal does not consider the evidence of cohabitation which was provided by the applicant to either the Department or the Tribunal to be convincing.
In relation to the latter point, the Tribunal said at para.48:
The Tribunal considers the evidence with regard to the applicant’s responsibility for the care and support of children to be quite equivocal … When considered in its totality, the Tribunal placed only limited weight on the applicant’s claimed connection, care and support responsibilities for the sponsor’s child.
It had also observed that the applicant’s description of the home where he and the sponsor were said to have resided differed from its description in the property’s lease and that convincing evidence of the applicant’s participation in domestic tasks was lacking.
The social aspects of the relationship
The Tribunal’s conclusions concerning the social aspects of the parties’ relationship was encapsulated in para.61 of its decision record:
With the exception of the marriage certificate, birth certificate and the applicant’s taxation return, there is limited documentary evidence which would indicate the social aspects of the parties’ relationship resembles those of two people with a mutual commitment to a shared life together. The Tribunal does accept the parties’ relationship is attested to by members of both of their families, with the applicant’s sister presenting with an instrumental role in putting them in contact and facilitating the marriage. It is of concern the applicant provided misleading information regarding a cancelled honeymoon to Vietnam with the visa application and the Tribunal is not persuaded a subsequent trip to Vietnam in late 2017 was not undertaken to primarily support the review application. There is very limited photographic evidence to demonstrate the parties represent themselves to the community at large as a married couple, or that they undertake many social activities together. The Tribunal acknowledges the applicant’s explanations for the limited photographic evidence … demonstrating the social aspects of the parties’ relationship and reiterates the consequence of this is a lack of evidence from this source to support a contention the parties are in a genuine relationship.
The nature of the parties’ commitment to each other
The Tribunal’s overall assessment of the parties’ relationship was set out in paras.69-71 of its decision record:
The Tribunal is not satisfied the evidence establishes the parties had a mutual commitment to a shared life as husband and wife to the exclusion of others, or that they were, at the time of application in December 2014 in a genuine and continuing relationship and that they did not live separately and apart. The Tribunal is not satisfied the evidence supports the contention that they are in a genuine relationship at the time of this decision.
This is because, when considering the different aspects of the parties’ relationship around the time of application and at the time of this decision, the Tribunal is not satisfied the parties have to any significant degree shared regular expenses, pooled their finances or that they had any shared assets, debts or legal obligations to each other. There is limited evidence the parties have resided together, or that they had established a household together. This is particularly the case, as with other aspects of the relationship, as they pertain to the time of application in December 2014. There is evidence members of the parties’ families support the relationship, but I am not satisfied this is not motivated by their wish to support the visa …
When considered cumulatively and in the face of the numerous concerns raised in this decision, there is insufficient evidence to support the applicant’s claims about the nature of his relationship with the sponsor.
THE PROCEEDING IN THIS COURT
In his amended application, the applicant alleged:
1When determining whether the applicant and his sponsoring spouse were in a genuine and continuing marital relationship, the second respondent (the Tribunal) made critical findings of fact that misconstrued the evidence, were unsupported by the evidence and failed to take account of evidence and submissions provided by the applicant, such that the decision was seriously lacking in foundation, rationality, and logical coherence in a way that was legally unreasonable.
A further pleaded ground was abandoned.
The allegation that remained was supported by detailed particulars based on the four considerations prescribed by the Regulations, namely:
(a)the financial aspects of the relationship;
(b)the nature of the household;
(c)the social aspects of the relationship; and
(d)the nature of the parties' commitment to each other.
CONSIDERATION
Financial aspects of the relationship
The Tribunal’s concerns regarding the financial aspects of the parties’ relationship centred on their joint CBA bank account (account 4663). It:
… noted with concern that when asked to comment on transactions in the CBA joint account the applicant displayed uncertainty and confusion as to issues such as the purpose of transactions and regarding some of the accounts from which, or to which, funds were transferred from or to the joint account.
In particular, the Tribunal identified what it called “a recurrent pattern in transactions, where amounts were transferred into the joint account and the same or similar amounts were withdrawn on the same or successive days”. It referred in that regard to the applicant’s explanations of what the Tribunal described as:
(a)a transfer of $800 from account 4663 to an account variously described as belonging to the applicant’s wife or alternatively another joint account (account 9168), on the same day that $985 [sic] in family payments from Centrelink had been deposited into account 4663;
(b)$450 deposited into account 4663 by Thi Nguyen on 4 June 2019 and transferred on the same date to account 9168;
(c)$330 deposited into account 4663 from another account of his (account 8080) and transferred to account 9168 on the same date;
(d)$2,950 deposited into account 4663 by Thi Nguyen on 4 June 2019 and transferred to account 9168 on the same date [sic].
The Tribunal recorded that it had asked the applicant to explain those transactions and to comment on the proposition that their pattern might reflect an account set up to appear as if being used by a couple but which was not genuinely used for that purpose. It went on to record that the applicant’s comment and explanations did not rise above statements that his wife attended to payment of their expenses and he was unsure who Thi Nguyen was. In other respects his answers, as recorded by the Tribunal, were essentially unresponsive to the questions that it had posed him.
The applicant alleged in relation to the Tribunal’s finding concerning the financial aspects of the couple’s relationship that:
… the bank records that have been provided with the visa and review applications ... do not clearly demonstrate the account is operated by both the applicant and sponsor, or that it is used to meet shared financial commitments or day-to-day household expenses …
that it had:
… misconstrued evidence and failed to consider, make findings on, or take account of the evidence ...
That allegation was supported by a number of particulars.
No evidence of $985 payments into the parties’ joint account
The first particular of the allegation concerned the Tribunal’s failure to be persuaded by evidence given by the applicant as follows:
In relation to a recurrent pattern in transactions, where amounts were transferred into the joint account and the same or similar amounts were withdrawn on the same or successive days, the Tribunal asked the applicant to explain some of these transactions. In relation to specific transactions the applicant made the following comments:
•$985 family payments from Centrelink deposited into the account on 3 April 2019 and $800 transferred to an account operated by the sponsor on the same date: the applicant said that he and the sponsor have to pay all of their expenses and that their life is not that easy. The Tribunal was not persuaded that this comment explained why the bulk of these Centrelink payments were transferred out of the joint account into another account operated by the sponsor. … (emphasis added)
The applicant submitted that it was unreasonable to expect him to provide responsive answers to questions about $985 payments into the parties’ joint account of which there was no evidence.
It is correct that there was no $985 Centrelink payment on 3 April 2019 but what there was was three separate government payments, $509.24, $293.35 and $91.28, totalling $893.87. The point that the Tribunal was making was that a material sum of money had been paid by the government into the couple’s joint account only to be largely and quickly transferred to the sponsor. The precise total of those amounts was not the material issue; the prompt removal into the sponsor’s account of most of the government deposits of 3 April 2019 was. The applicant gave unilluminating evidence on the subject and the Tribunal’s attitude towards it was not unreasonable in the circumstances. The argument in relation to this particular identifies no error on the Tribunal’s part.
Incorrect finding that the applicant had given incorrect evidence concerning a person and a bank account
The second particular contended that the Tribunal had wrongly found the applicant to have given incorrect evidence concerning a person and a bank account as follows:
In relation to a recurrent pattern in transactions, where amounts were transferred into the joint account and the same or similar amounts were withdrawn on the same or successive days, the Tribunal asked the applicant to explain some of these transactions. In relation to specific transactions the applicant made the following comments:
…
•$450 deposited into the account by Thi Nguyen on 4 June 2019 and transferred to account xx9168 on the same date: the applicant said this was a transaction between the sponsor and her friend, but elsewhere in the hearing said he was uncertain who Thi Nguyen was and that many Vietnamese women have this name. He said xx9168 is an account that is operated by the sponsor and that he trusts her, but elsewhere in the hearing claimed this was another joint account. (emphasis added)
Although the applicant submitted, in substance, that his vagueness concerning one of the sponsor’s friends said nothing about his relationship with the sponsor, this particular was not concerned with that issue. It contended factual errors on the part of the Tribunal. The transcript of the Tribunal hearing records that the applicant’s evidence on the subject had been:
(a)account 9168 “is a joint account for both of us” (T11.19-20);
(b)“I don’t know” who operated that account (T11.36-37);
(c)it was “very hard to – to work it out who was it” (T13.44) when asked whether he knew a Thi Nguyen; and
(d)Thi Nguyen was his wife’s “friend”. (T14.34)
It can be seen that what the Tribunal noted was not factually incorrect, with the result that this particular is not made out on the evidence.
Incorrect characterisation of a $330 payment that passed between the applicant and the sponsor
The third particular contended that in the following finding the Tribunal had mis-characterised a $330 payment that had passed between the applicant and the sponsor:
In relation to a recurrent pattern in transactions, where amounts were transferred into the joint account and the same or similar amounts were withdrawn on the same or successive days, the Tribunal asked the applicant to explain some of these transactions. In relation to specific transactions the applicant made the following comments:
…
•$330 deposited from account xx8080 on 31 May 2019 and transferred to account xx9168 on the same date: the applicant said this was money he transferred from an account in his name to the joint account so that the sponsor could pay rent and other expenses. He had no credible explanation as to why this amount was then transferred to another account operated by the sponsor, before being put to the purpose he claimed. In response to a question as to why the transfer from his account had the descriptor ‘allowance’, as this raised concern it was a payment made to the sponsor, rather than for regular household expenses, the applicant said his language is not that great and that he just pushes the button on his phone to make the transaction. The Tribunal did not consider this was a convincing explanation for why the transaction had this specific descriptor. (emphasis added)
The Tribunal identified concerns it had as to the genuineness of the transaction but the applicant submitted that there had been nothing unbelievable about his evidence on this topic. The Tribunal’s concern related to the true purpose of the joint account but the applicant’s evidence regarding this particular transaction:
(a)shed no light on why the funds he had deposited into the joint account were transferred to another account; and
(b)provided no persuasive explanation for the “allowance” descriptor that served to displace its concern that the money was a payment to the spouse for her own use rather than for the payment of joint expenses.
It was well open to the Tribunal in the circumstances to be unimpressed by the evidence the applicant gave in response to its questions on those topics.
Failure to consider all the evidence when deciding not to accept couple’s explanation of a $2,950 deposit into their joint account
The fourth particular contended that the Tribunal’s failure to be persuaded by the applicant’s explanation of a $2,950 deposit into the parties' joint account by Thi Nguyen was affected by it not having taken into account:
… the whole of the applicant's explanation as to why he was unsure of the transaction …
The relevant finding was:
In relation to a recurrent pattern in transactions, where amounts were transferred into the joint account and the same or similar amounts were withdrawn on the same or successive days, the Tribunal asked the applicant to explain some of these transactions. In relation to specific transactions the applicant made the following comments:
…
•$2,950 deposited into the account by Thi Nguyen on 4 June 2019 and transferred to account xx9168 on the same date: the applicant initially said he was unsure of who operated the xx9168 account, as there were so many digits in the account number and then he said it was the sponsor’s account, into which funds are transferred to pay rent, electricity bills, food for their child and food for the family. Given the applicant had previously indicated Thi Nguyen was either a friend of the sponsor, or a Vietnamese woman he could not identify, the Tribunal was unconvinced by the applicant’s explanation for this transaction, which raised concern, as it involved a significant amount of money, occurred only recently, was for a purpose for which he did not provide a credible explanation and provided no explanation as to why, if the funds were for regular household expenses, a third party was contributing to these expenses, or why the funds needed to be, on the same day transferred to another account operated by the sponsor. (emphasis added)
The transcript of the Tribunal’s hearing records the relevant exchange in the following terms:
MEMBER: On 2 April 2019 an amount of $2,950 was transferred from Thi Nguyen, and on the same day the same amount was transferred out of the joint account to 9168. It’s the same pattern of transaction I’m concerned about. It doesn’t seem to provide any evidence of that money getting – how is that money giving you – what purpose the transaction is, why it’s going in and out the same day. What do you – what do you want to say about that?
APPLICANT: There are two issues here, Member. That – it – first one is, you know, because of the – the account is quite long, so, I can't remember all the – the details of that account, except that – the – those last four digits. But, I can work it out, it’s 916, it’s belong to my wife’s account. And she – the – the money going to her account so she can use that money to pay for the – the rent, electricity, the utility bills and to buy, you know, food for – for the kid, and stuff for the kids as well, so – and food for the family, for my – for myself.
In his written submissions, the applicant pointed out that the deposit in question had been made on 2 April 2019, not 4 June 2019 as the Tribunal stated. Again, the applicant complains that the Tribunal made a factual mistake of no materiality to its relevant finding, in this case the date of the $2,950 deposit. The relevant issue was not when the payment was made but why it was made and why it was removed from the joint account to another account. The Tribunal made that clear in its questions of the applicant at its hearing.
As to the reason for the payment and its transfer, the applicant’s evidence was that the ultimate receiving account was his wife’s and that the funds were used to pay domestic expenses. The first element of the answer was unresponsive and irrelevant and the second provided no explanation of why those expenses were paid from account 9168, rather than from the joint account which had been submitted as evidence of the reality of their relationship.
It is plain that the Tribunal did take that evidence into account but found it wanting.
Failure to consider all the evidence when concluding that the parties' joint account did not appear to have been used to pay household expenses such as for rent and domestic services as the applicant claimed
The fifth particular contended that when concluding that:
… the parties' joint account did not appear "to be used to pay the sort of household expenses, such as rent or utility bills, which were referred to by the applicant" ...
the Tribunal
… failed to consider, or to make findings on, evidence from the bank statement (CB 356-381) that the parties' joint account was regularly used for the payment of household expenses, including rent or utility bills [and other expenses] …
The applicant submitted that the Tribunal’s findings in relation to the use of the joint account did not take account of many domestic expenses having been paid from it, as recorded in the joint account’s bank statements. However, the matters identified by the applicant in submissions as having been domestic expenses were not shared domestic expenses but were instead largely personal expenses, and scores of them. As to rent payments, the bank statements for the periods 1 January 2016 to 31 December 2017, 29 October 2017 to 27 June 2018 and 1 December 2018 to 5 June 2019 record rent payments from the joint account on 8 March 2018, 31 May 2018 and 7, 12, 17 and 28 December 2018 only. Those same bank statements record electricity payments on 20 February 2018, 5 April 2018, 4 May 2018 and 11 January 2019 and no other payments for services. The evidence bears out the Tribunal’s concern that the joint account was not the account from which such expenses were paid. Occasional departures from that practice do not invalidate the conclusion.
Failure to consider all the evidence when concluding that the parties had not pooled their funds to meet day-to-day household expenses such as for rent and domestic services
In relation to the sixth and seventh particulars, the applicant pointed to the Tribunal’s findings at paras.39 and 40 of its reasons that the documentary evidence did not demonstrate who paid the parties’ rent and for the property’s services and submitted that in fact there had been such evidence. What the Tribunal relevantly said was that:
The rent receipts indicate that rent payments are paid in cash. There is a lack of convincing evidence as to who contributes to the rent payments and the Tribunal is not satisfied that it can place weight on the rent receipts as an indicator as to whether the applicant and sponsor share day-to-day household expenses …
and
There is also a copy of a utility bill from Sydney Water for the Canley Heights property, covering the January to March 2019 period, which shows this account is held in the name of [the landlords] and not the name of either the applicant or sponsor. It is not apparent in the provided bank records this expense was paid from the joint account. There is no credible evidence as to who paid this and associated utility expenses …
The applicant’s submissions failed to identify evidence that corroborated his contention that the “joint account was regularly used for the payment of rent and … services”, unless “regularly” is taken to mean “occasionally” rather than “frequently” or “at regular times or intervals” as the Macquarie Dictionary relevantly defines it, in which case the reasons expressed earlier at [39] above are relevant.
The nature of the household
The Tribunal was not impressed by evidence advanced in support of the applicant’s claims to have been the father of the sponsor’s son, to have performed handyman tasks around their home and to have been familiar with the home in which he was said to have resided with the applicant and her mother and siblings. The applicant pleaded and particularised a number of matters in relation to this issue but in his written submissions abandoned all of those particulars apart from the amended application’s para.1(b)(iv) where the allegation that the Tribunal’s findings concerning the nature of the applicant and sponsor’s household:
… misconstrued evidence and failed to consider, make findings on, or take account of … evidence …
was particularised as follows:
(iv) The Tribunal, at [50], considered that there had been a “significant inconsistency" between the applicant's evidence in the hearing as to the number of available bedrooms at the property he shared with his sponsoring spouse, and the evidence as to bedrooms in the Residential Tenancy Agreement regarding the property. Properly construed, that evidence was not materially inconsistent.
The applicant submitted in that regard:
27. The Tribunal, at [50], considered that there had been a “significant inconsistency” between the applicant’s evidence in the hearing that the Canley Heights property “is a three-bedroom home, with none of the bedrooms currently used as a store room”, and the Residential Tenancy Agreement which stated that the property was a “4 Bedrooms house & 2 bedrooms sleep out with garage” (CB 395). In his evidence the applicant actually agreed with the Tribunal’s question, “noticed from the tenancy agreement it’s a four bedroom house, is that correct?”, adding that one of the four bedrooms had been converted to storage (19:35-41). There was no material inconsistency here.
That submission misrepresents what the Tribunal relevantly said which was:
The applicant told the Tribunal that the Clarence Street property is a three-bedroom home, with one of the bedrooms currently used as a store room. The Tribunal notes that the Residential Tenancy Agreement pertaining to this property, which was provided with the review application, identifies it as a ‘4 bedroom property & 2 bedroom sleep out with garage’. The inconsistency between the applicant’s evidence as to the number of available bedrooms at the Clarence Street property, either used as bedrooms or for other purposes, and that evident on the Residential Tenancy Agreement is significant and diminishes the weight the Tribunal has given to the applicant’s claims regarding the living arrangements of the parties.
While one might debate whether a discrepancy is or is not significant, the Tribunal’s assessment was within both its competency and the bounds of reasonableness and so is not affected by error. It was open to the Tribunal to find that the discrepancy was material to its assessment of the credibility of the applicant’s claims because it cast doubt on his familiarity with the place he sometime called home.
The social aspects of the relationship
With the exception of NSW Births, Deaths and Marriage registrations, the Tribunal noted a lack of official documentation supporting the applicant’s claim that the couple was recognised by government agencies as such, and a lack of photographic evidence of their relationship with each other and as members of a family unit that included the sponsor’s son. It also observed that the applicant’s claim that the sponsor and her son were beneficiaries of his superannuation was unsupported by contemporary evidence.
In relation to the recognition of the alleged relationship by Centrelink the applicant submitted:
… in relation to the Centrelink payments it claimed that it was not evident from the Centrelink payments into Account 4663 what had been declared to that agency. This did not consider that Account 4663 was a joint account in both of the parties’ names; it can be inferred from this that Centrelink was aware that they were a couple.
That submission assumes a number of matters that have not been proved with the consequence that the inference propounded is not available. But in any event, the contested finding was that there was a lack of official documentation recognising the relationship, not that Centrelink was ignorant of or cared who the accountholders of the joint account were.
The Tribunal’s finding on the question of superannuation was expressed as follows:
… The applicant claimed the sponsor and her child are identified as beneficiaries of his superannuation, but has not supported this claim with any contemporaneous documentary evidence and as a consequence the Tribunal has placed only limited weight upon this claim. …
The applicant argued that when discounting the weight to be placed on his claim that his sponsor and her child were beneficiaries of his superannuation, the Tribunal failed to have regard to a letter dated 9 October 2015 from Kinetic Superannuation identifying the sponsor as a beneficiary of the applicant’s superannuation. That submission is not correct. Earlier in its reasons the Tribunal had made specific reference to that letter, observing:
… Included with the visa application was a letter to the applicant from Kinetic Superannuation, dated 9 October 2015. There is no current indication of any balance on this account and any current information about who may be a beneficiary of any such account. Given the ease with which beneficiary details can be changed, the Tribunal is not satisfied the letter from Kinetic Superannuation reflects any current identification of the sponsor as a beneficiary of a superannuation policy held by the applicant.
It was further submitted that the Tribunal erroneously stated that it lacked contemporaneous documentary evidence of the superannuation situation but in 2019 a letter dated 2015 could hardly be considered contemporaneous.
The applicant also argued that the Tribunal had made no finding as to the relevance and significance of accepted photographic evidence of him and his sponsor with various of their relatives and other accepted evidence that the parties' relationship was attested to by members of both their families. That submission is incorrect and ignores what the Tribunal said in para.61 of its reasons, quoted above at [16].
The Tribunal placed limited weight on statutory declarations provided in support of the visa application by the sponsor’s mother and the applicant’s sister, saying that the similarity of their content and structure cast doubt on whether they reflected the declarants’ individual views. The applicant complained that the statutory declarations:
… were not at all similar in content and structure …
and that other evidence given by those deponents, and the applicants’ parents, was not similar to what had been said in those statutory declarations and that the Tribunal had erred in saying that they were. Having read the statutory declarations I conclude that, even if a different decision maker might have drawn a different conclusion, there was an evidentiary basis for the Tribunal’s finding in relation to them. As a result, that finding was not affected by error. The remaining matters raised by the applicant, as presented, were irrelevant to that question.
The applicant also alleged that when considering the social aspects of his relationship with the sponsor, the Tribunal:
(a)without any evidentiary foundation discounted the weight to be placed on the evidence of the applicant's sister and other relatives on the basis that they had a strong motivation to support the visa application; and
(b)failed to consider, individually, witnesses’ evidence in relation to the social aspects of the parties’ relationship because it had wrongly discounted evidence they had given concerning whether the applicant was the biological father of the child.
These arguments are in substance invitations to review the Tribunal’s findings of fact. They do not identify reviewable error.
The Tribunal referred to a travel itinerary that the Delegate had described and considered in the following way:
You have also provided a joint itinerary for travel from Sydney to Hanoi (return trip via Ho Chi Minh City). The period of travel for this trip was 21 March 2015 to 27 April 2015. I note that movement records show you have not departed Australia since 12 March 2014. It is therefore clear that you did not undertake this travel and hence the itinerary provided is not evidence of you and your sponsor engaging in joint travel. I therefore do not consider this evidence in support of the social aspects of your relationship with your sponsor and have given it no weight.
The Tribunal found that the applicant had sought to mislead by submitting that itinerary over a year after the dates on the itinerary. The applicant correctly submitted that that statement was incorrect as the itinerary had been provided to the Department with the visa application more than two months before the trip had been due to take place. However, he did not identify how that error of fact caused the Tribunal’s ultimate finding to be affected by jurisdictional error. I find it to have been an error in fact finding of no substantive materiality to the outcome of the Tribunal’s review.
The Tribunal also placed “limited weight” on evidence that the parties had visited Vietnam in October 2017, and had had contact with relatives, because the trip:
… took place after the delegate’s decision to refuse the visa and I am not persuaded the trip was not primarily undertaken to support the review application.
The applicant submitted that the Tribunal’s approach was irrational because it negated the significance of developments in a relationship occurring after the primary decision. While that point has some rhetorical merit, the Tribunal’s comment should be read in the context of the applicant’s application more generally and the weaknesses in it that the Tribunal identified. Given that context, it was not unreasonable of the Tribunal to place little weight on this evidence as corroboration of the applicant’s broader claims.
The nature of the parties' commitment to each other
In substance, the Tribunal concluded that, based on the matters it had considered under the criteria specified in reg.1.15A(3)(a)-(c) of the Regulations, the applicant and the sponsor lacked the sort of commitment to each other that was consistent with a genuine spousal relationship. It said:
When considered cumulatively and in the face of the numerous concerns raised in this decision, there is insufficient evidence to support the applicant’s claims about the nature of his relationship with the sponsor.
The applicant submitted in relation to that:
The findings by the Tribunal under this heading are simply derivative of its flawed findings in relation to the other considerations. At [64] it “placed no significant weight” on the near five-year duration of the marital relationship because “the cumulative evidence does not in my view demonstrate that the applicant and sponsor are in a genuine and continuing relationship”. At [65] it did not place weight on evidence that the parties had taken out rental tenancy leases together in the period since 2016, because of “…a lack of overall credible evidence demonstrating the parties have at any stage established a shared household together”.
Because no additional contention was raised in connection with this particularisation of the allegation, it invites no additional consideration.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 22 July 2025
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