Truong (Migration)

Truong (Migration) [2024] AATA 512 (17 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tan Phat Truong
CASE NUMBER:  2215313
HOME AFFAIRS REFERENCE(S):          CLF2013/45912
MEMBER:Rachel Westaway
DATE:17 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 17 January 2024 at 11:49pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship with sponsor had ceased – victim of family violence – applicant and sponsor do not have any joint assets – applicant’s lack of knowledge about their day to day living was limited – applicant and sponsor were not in a genuine and continuing relationship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 801.211, 801.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 April 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 March 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221(2) because did not meet the requirements that they were the spouse or de facto partner of the sponsor as defined under sections 5F and 5CB of the Act, respectively. The delegate found that the applicant did not meet subclause 801.221(2).
The First Tribunal application
The applicant first applied for a Partner (Subclass 820) visa on 1 March 2013 and granted the temporary visa on 5 September 2014. However in assessing the subclass 801, the visa application was refused by the Department on 15 April 2016 on the basis that the applicant did not meet the requirements that they were the spouse or de facto partner of the sponsor as defined under sections 5F and 5CB of the Act, respectively. The delegate found that the applicant did not meet subclause 801.221(2) and therefore found that the applicant did not meet the legislative requirements for the grant of a subclass 801 visa as specified in clause 801.221.
On 2 May 2016 The applicant applied for review of the Department’s decision to refuse to grant him a Partner (Subclass 801).
Invitation to provide further information under s.359(2) of the Act
On 3 March 2017 at 9:20am, the Tribunal wrote to the applicant under s.359(2) of the Act inviting the applicant to provide further information to support his claims that he was in a spouse or de facto relationship with the sponsor.
The letter provided the applicant with 26 days to provide the requested information or request an extension of time to respond. The letter also stated that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information, and that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 3 March 2017 at 9:44am, the Tribunal wrote to the applicant under s.359(2) of the Act inviting the applicant to provide further information to support his claims that he was in a spouse or de facto relationship with the sponsor.
The letter provided the applicant with 14 days to provide the requested information or request an extension of time to respond. The letter also stated that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information, and that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 3 March 2017 the Tribunal wrote to the applicant’s authorised representative. The Tribunal stated, “Due to administrative error please disregard letter sent to you today at 9.20am. Attached is the correct letter.” The Tribunal attached the s359(2) letter which was sent 3 March 2017 at 9:44am.
On 21 March 2017 the applicant’s authorised representative wrote to the Tribunal requesting clarification of the due dates regarding the s359(2) request. They wrote “On the 6 March 2017, the writer received 2 emails from the Tribunal requesting documents in support of the above application. Deadlines for these requests were one of 17 March 2017 and the other for 29 March 2017.”
On 22 March 2017 the Tribunal responded to the applicant’s authorised representative with a copy of the email sent on 3 March 2017, citing administrative error. “Due to administrative error please disregard letter sent to you today at 9.20am. Attached is the correct letter.”
On 22 March 2017, the applicant’s authorised representative requested an Extension of Time to provide a response to the s.359(2) request.
On 24 March 2017 the Tribunal responded to the applicant’s authorised representative rejecting the request for an extra seven days to respond to the s.359(2) request as the request for an extension was not received within the prescribed timeframe, which expired at the end of 17 March 2017.
On 24 March 2017 the applicant’s authorised representative responded to the s.359(2) request via email. They addressed the financial aspects of the relationship, the nature of the household, the social aspects of the relationship; and the nature of the couple’s commitment to each other and provided the following documents:
·     Photographs from the Applicant and the Sponsor’s trip to Vietnam.
·     Photographs of the Applicant and the Sponsor in various other settings.
·     Statements for the Applicant and the Sponsor’s joint bank account.
·     Flight documents relating to the Applicant and the Sponsor’s trip to Vietnam.
They requested that the member make a decision on the papers and waive the right to a hearing.
The first Tribunal (differently constituted) made a decision on 28 August 2017 to affirm the review application on the basis that the Tribunal was not satisfied that, at the time of the decision, the parties were in a spousal relationship. Therefore, the applicant did not meet cl.801.221(2)(c).
Judicial review of the Tribunal’s decision
The applicant lodged an application for judicial review of the Tribunal’s decision with the Federal Circuit & Family Court of Australia on 28 September 2017 (Court Reference MLG2096/2017)
On 15 September 2022, the application was remitted back to the Tribunal. The reasoning was “That due to the failure of the Tribunal, in the circumstances of this case, to exercise its discretion to invite further comment from the applicant, was unreasonable and amounted to jurisdictional error. The Tribunal’s adverse decision was purely founded on gaps and lack of clarity in the evidence. There were no adverse findings about the applicant’s evidence. The Tribunal was aware that without a hearing, and without inviting the applicant to provide further information by virtue of s 359, there would be no scope for the applicant to expand upon his evidence or address the Tribunal’s concerns. The Tribunal should have been cognizant of the fact that the applicant had lost his right to a hearing following some confusion which had arisen out of its own administrative error. In those circumstances, acting reasonably, the Tribunal should not have proceeded to decide the matter without considering whether there were other reasonable means available to it which would have afforded the applicant a fair opportunity to put his case, albeit without a hearing.”
That remitted review application forms the application currently under review before the Tribunal.
The current Tribunal matter (Case Number 2215313)
The applicant applied for review of the Department’s decision with the Tribunal on 17 October 2022.
The applicant appeared before the Tribunal on 2 October 2023 at 10:30am to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Mai Huong Nguyen and Mr Thien N Nguyen.
The applicant was not represented in their review application.
Invitation to provide further information under s.359(2) of the Act
On 11 August 2023, the Tribunal wrote to the applicant under s.359(2) of the Act inviting the applicant to provide further information to support his claims that he was in a spouse or de facto relationship with the sponsor.
The letter provided the applicant with 14 days to provide the requested information or request an extension of time to respond. The letter also stated that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information, and that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 25 August 2023 the applicant requested an Extension of Time to respond to the invitation via email. The Tribunal agreed to the applicant’s request and granted an Extension of Time to respond to the invitation by 8 September 2023.
In the same email the applicant also confirmed that his relationship with the sponsor had broken down and provided a Divorce Order from the Family Law Court in his name and the sponsors, dated 7 February 2023. The applicant stated that he would need more time to provide evidence in relation to family violence.
The Tribunal granted the extension of time to 8 September 2023.
On 8 September 2023 the applicant submitted an email requesting another another extension of time. He also submitted an email from psychologist Tim Watson-Munro, where he stated he would need until 15 September 2023 to prepare a detailed report.
The Tribunal granted the extension of time to 15 September 2023.
On 15 September 2023 the applicant submitted an email requesting another extension of time until 25 September 2023. He attached a letter from psychologist Tim Watson-Munro stating that he would need more information and therefore more time to compile a report. The applicant also provided two emails, one from the applicant’s previous lawyers and another from a third party to his previous lawyers.
The Tribunal granted the extension of time to 25 September 2023.
On 25 September 2023 the applicant submitted the following in response to the s.359(2) request:
·Written psychological assessment and opinion from psychologist Tim Watson-Munro along with Curriculum vitae of psychologist Tim Watson-Munro
·Statutory declaration from the applicant detailing relationship and family violence with the sponsor dated 25 September 2023.
·Divorce order between sponsor and applicant dated 7 February 2023.
·Photos of the applicant and sponsor together and with family and friends.
·Statutory declaration for family violence claim, Form 1410 from the applicant dated 25 September 2023.
·Joint bank statements between 2016 - 2023
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the spouse or de facto partner of the sponsor as defined under 5B and 5F of the Act.
Background
The applicant is a 30-year-old Vietnamese national. He has not been previously married nor has any children.
The sponsor, Josephine Ngoc Nguyen, is 28 years old, is an Australian citizen.
They claimed to have first met in Melbourne on 11 November 2011 and committed to a shared life together on 14 January 2013. They were married in Melbourne on 14 January 2013.
Applicant’s Visa History
The applicant was granted a TU-571 student visa on 18 December 2008. The visa was subsequently cancelled on 6 March 2013.
The applicant was granted a UK-820 partner visa on 5 September 2014.
The Department application
As noted above, the original decision of the Department to refuse to grant the applicant a Partner (Subclass 801) visa on 15 April 2016.
The applicant provided the following documents in support of his application:
·     Joint Commonwealth bank statement dated 17 January 2015 – 16 January 2016
·     Photos together and with family and friends.
·     Statutory Declaration from the applicant dated 5 March 2015.
·     Statutory Declaration from the sponsor dated 5 March 2015.
·     Statutory Declaration, Form 888 from Roberta Sien dated 24 February 2015.
·     Statutory Declaration, Form 888 from This Kim Lien Vu dated 24 February 2015.
·     Applicant’s Medicare card and Vietnamese passport.
·     Sponsor’s Australian passport.
·     Sponsor’s university card.
·     Joint bank statements dated 17 September 2014 – 16 January 2015.
·     Applicant’s tax return dated 30 June 2014.
·     Applicant’s superannuation account opening letter.
·     University offer letter to sponsor.
·     National Police certificate in applicant’s name dated 4 February 2015.
·     Joint bank statements dated 17 December 2013 – 17 June 2014.
·     Wedding reception menu and confirmation from Gold Leaf restaurant dated 16 February 2013.
·     Joint bank statement dated 17 January 2013 - 1 July 2013.
·     Rental agreement for property at 26 Moore Street, Footscray.
·     Statutory declaration, Form 888 from Kim Chung Vu dated 24 January 2013.
·     Statutory declaration, Form 888 from Cau Muoi Ngo dated 24 January 2013.
·     Statutory declaration, Form 888 from Robert Sien dated 23 January 2013.
·     Statutory declaration, Form 888 from Thuy Phuong Dinh dated 24 January 2013.
·     Statutory declaration, Form 888 from Kim Lien Vu dated 24 January 2013.
·     Certificate of Marriage dated 14 January 2013.
·     Applicant’s translated Vietnamese Justice record.
·     Statutory Declaration from the applicant dated 11 February 2013.
·     Sponsor’s birth certificate.
·     Statutory Declaration from the sponsor dated 13 February 2013.
The Department decision
The delegate of the Department made a decision to refuse to grant the applicant the Partner visas on 15 April 2016, on the basis that they found the applicant was not the spouse or de facto partner of the sponsor as defined under sections 5F and 5B of the Act, respectively.
Whether the parties are in a spouse or de facto relationship
Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a) - (d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Mr Truong and Ms Nguyen were married in Springvale on 14 January 2013. The sponsor was 18 years of age prior to the date of the marriage and a certified copy of their certificate of marriage is on the Department’s file. On the evidence, the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a), noting that they have now divorced.
Hearing Evidence
The applicant stated he first met his sponsor in 2010 in Melbourne at a party organised by his Aunty and who is also a friend of the sponsor’s mum. The Aunty was married to his maternal eldest uncle and whilst she introduced them, he stated that it was a love marriage.
He explained that his wife was studying a master’s in psychology at Monash University and he stated that she seemed to study a lot however stopped studying in 2017 because of the significant workload and stress. The Tribunal asked the applicant what undergraduate degree she undertook and he stated that she had not finished this and he was not sure what she studied prior as his English is limited. He was unable to explain her study pathway. The Tribunal asked the applicant what language he spoke to his wife in and he confirmed they spoke in Vietnamese. He said she had been studying her Masters for two years.
He said that she rarely spoke about her studies as she is a strict person and he explained that she would throw things at him because it caused her stress.
She had no form of income or savings and her family did not assist her.so the applicant explained that it was his responsibility to work in order to pay for the rent and their daily living expenses.
The applicant said that his wife borrowed money from the government. The Tribunal asked the applicant what type of loan she had however he did not know and he said that she did not tell him.
He stated that when she stopped studying, she had a job making coffee five days a week at a café in Highpoint Shopping Centre. He said that she worked 8 hours a day. When asked what the name of the café was, he said that he could not recall but he drove her there. He confirmed she worked there for a year and then moved to another role in a conveyancing office as an accountant and he understood she was still working there. He said that last time he saw her was in December 2022 when he signed the divorce papers.
The Tribunal asked the applicant the name of the conveyancing firm she worked for and he could not recall. The Tribunal asked the applicant what her income was and he stated he was not sure as she had her own bank account.
He confirmed however that his salary went into their joint account. The Tribunal asked the applicant why it was set up this way and he said that his salary was for bills and daily expenses and hers was savings for when they started a family. The Tribunal asked the applicant how much money was in the savings account ad he said approximately $80,000 in 2020 and it was with the Commonwealth Bank.
The Tribunal asked the applicant how they split their money after the divorce and he said that he did not take any and left it to her. He stated that he is a man and is working and he doesn’t need to take money from a woman.
The applicant discussed his wife’s travel to Vietnam to meet his family and he confirmed that she had met them twice in Vietnam and this was on the basis of two separate trips in 2013 and 2014 however he said that she travelled on her own. Each visit was for a month.

He said that then there was a third visit and the most recent time was when his father passed away in 2018 and she attended the funeral with him which lasted for 3 days. They had a ceremony and worshipped; however, it was not a religious ceremony. He said that there were approximately 100 people who were in attendance and the Tribunal asked if there were photos of the event. He confirmed that he has no photos because they were not in the mood to take pictures.
He stayed for 2 weeks, and he returned however his wife stayed for 4 weeks. He said he was working and had to return earlier, and she wanted to visit her relatives so stayed longer.
They stayed at the applicant’s family house and also went to Ho Chi Minh to visit her relatives. They stayed with her relatives as well such as her mother’s younger sister called Ms Ban who was married and had two children who are 20 and 26 years old. They stayed at the house for 2 nights. They did not register the visit and he explained that he doesn’t need to register in Ho Chi Min only his hometown. The Tribunal asked for a copy of the registration and he said it was in Vietnam and at the moment he does not have it and would need to look for it. He said that he and his wife had separate registration documents and he confirmed that his wife also registered. The Tribunal requested a copy of the documents by Monday 16 October 2023.
The Tribunal asked about the applicant’s relationship with the two witnesses and the applicant explained he knows Ms Nguyen through his sister and she helped him find a migration lawyer and he has known her since 2010. When asked if Ms Nguyen had met his wife he said no however he said that she had been to his house many times and met his wife manty times. When asked to explain the contradiction he said he was nervous and forgot.
He said that Mr Nguyen is also a friend and they worked together at the bakery, and he had also met the sponsor on many occasions and had visited them at their house.
The Tribunal asked the applicant about his support for his family in Vietnam and the sponsor’s support of her family. He said that since his father passed away and covid came he has sent money to help his mother however the sponsor did not want the applicant to send money to his family and would be controlling and not want him to socialise or go out. He said that she would occasionally send money to her own parents. He said that during holiday periods she would give around $500 to each of her parents.
He said that he would send his mother $500 every couple of months and this started in 2018 but is less regular now and more like every 6 months.
He said that when his wife would send her family money it would come from her own salary and his would come from his.
The Tribunal asked the applicant about the claimed family violence, and he said that the sponsor would yell at him and would throw things and she threatened him regarding withdrawing her sponsorship. He said that the witnesses he has brought also witnessed this.
He described two main incidents which occurred in 2021 and caused the end of their relationship in December 2021. He said that the sponsor yelled at him and threw household items at him. He remained quiet at the time. The Tribunal asked for further detail and which witness saw which incident and he said that the first incident was about him going out with Mr Nguyen and his wife did not want him to go. He said there was no explanation provided she simply did not want him going out. She threw a glass and books at him and a pen. He said that Mr Nguyen remained and sat still and then he left. He said they wanted to go out for beer but there was no specific place.
The female witness saw a very similar scenario. He claimed that there was an argument about money spent on the lawyer and she was unhappy about the amount.
He said another time Ms Nguyen was there to talk to the applicant about his migration issue and it made the sponsor stressed and she felt uncomfortable. She shouted and yelled at them because of the costs associated with the migration matter and she wanted to control the money and she did not want to get the paperwork done. He said it was the same issues when he wanted to send money to his mother. She would say that she does not want to sponsor him anymore and threw things at him.
He said that when Ms Nguyen left, she threatened him. However, he said that Ms Nguyen also saw the sponsor throw things at him and she also sat still and then left. She did not do anything.
The Tribunal took oral evidence from Mr Nguyen who confirmed he has known the applicant for 7-8 years. He said that they met through his wife Josephine. He said that he knew his wife as she is his cousin.
He stated that he believes the marriage was genuine as he had visited them on several occasions and saw them together and they were happy. He said that he would see them at their home in Moore St Footscray when he visited. He confirmed that he saw their arguments. He said it was around COVID and they started to argue about little things and then finance.
They raised their voices and argued, and she would slam her hand on the table and use strong words. He said he knew she had issues and wanted to control the finances.
He stated that he never witnessed him arguing with her over going out and he did not witness her throwing things at the applicant. He said that on some occasions he saw she was a bit controlling. He said that this was their business, and he doesn’t want to discuss it. He then confirmed he knew she did not like him going out and recalled that she would slam the door. He concluded that this is based on his best recollection.
The Tribunal then interviewed Ms Nguyen. She stated that she knew the applicant through her brother as they were best friends since 2012. They were introduced in August 2013 and would run into each other in Footscray. She said that the applicant’s English is not good so he rings her for help and to speak at times. She helped him since they separated and acted as an interpreter when he met with lawyers and when receiving documents from the AAT.
She stated that she met the sponsor at a wedding, and she is not officially in contact with her but did call her a few weeks ago regarding the release of documents from the previous lawyer. She claimed that she has never been to her home and only met her once at the wedding.
She has assisted the applicant because she knew he was upset about the relationship and had told her that he felt depressed and anxious. She encouraged him to be strong and deal with issues one at a time and heard from his mother that they were always arguing. She said they knew each other as her father was fixing the house of his uncle.
She believes it was a genuine relationship however the sponsor was controlling.
She said that her mother and father have told her about the relationship and the reasons why it broke down. The witness had no further details to add.
The Tribunal then put conflicting information to the applicant under s359AA of the Migration Act. The Tribunal explained that the witness statements provided were different to what the applicant had told the Tribunal regarding how he met them and the fact that he claimed that both witnessed the claimed family violence and yet their recollections were different. Mr Nguyen stated the argument he saw was over money and he never saw the sponsor throw things. Ms Nguyen stated she never saw any fights and she had only met the applicant and sponsor together at a wedding once and dealt with the applicant only.
The Tribunal explained that the inconsistencies do not support the applicant’s claims and causes the Tribunal to doubt the applicant’s truthfulness, and this would be the reason or part of the reason for affirming the decision under review. The applicant confirmed his understanding and was given until the close of business on 16 October 2023 to provide a response
On 16 October 2023 the Tribunal received two statutory declarations. One from Tat Phat Truong the applicant and another from Thi Mai Huong Nguyen a witness at the hearing.
Mr Truong stated that Ms Nguyen had forgotten the events as it was a long time ago and she has her own personal divorce problems to deal with and could only remember one happy event that she met the sponsor at and had blocked out the argument she allegedly witnessed. He stated she is suffering from depression and is forgetful. He said that she definitely attended the house and met his sponsor as she was needed there to explain to the sponsor the fees associated with the lawyer as the sponsor did not believe the applicant.
The applicant also stated in his statutory declaration that Mr Nguyen is more a friend to the applicant than his sponsor’s cousin which is why he did not mention it. He stated that Mr Nguyen only worked on weekends at the bakery and this is why he did not mention this. Further, the applicant stated that Mr Nguyen did mention the base line issue that the sponsor banged her fists on the table and but did not elaborate as it was many years ago.
The applicant also stated he was unable to obtain a copy of the temporary resident stay authorisation for his visit with his wife in January 2019 to Vietnam as he was unaware he needed to and cannot obtain one now.
He reiterated that his relationship was plagued with family violence by his sponsor who was aggressive towards him on many occasions.
Ms Nguyen’s statutory declaration stated she is going through a divorce and is stressed and forgot she had been to their house in Footscray. She stated she went to provide details of the lawyer’s fees and witnessed them argue.
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.
The applicant demonstrated a limited awareness of his and his former sponsor’s financial situation. For example, he was unable to explain the type of government loan or the amount of loan the sponsor had which was existing even when the subclass 820 was granted. He confirmed that he was unable to provide detail about her salary when she left her studies and worked in the café in 2017. He also stated at hearing that she had her own account for her salary and this was for savings for the future and children. If such a savings plan was made between the couple, then the Tribunal would expect the applicant to know what the sponsor was earning and what their savings goal was. The Tribunal acknowledges that the applicant stated that there was approximately $80,000 in the sponsor’s account when they separated, and he did not claim a percentage of this because he felt it was hers and he did not need it and he was a man, however there is no evidence before the Tribunal prior to the separation of this account. The Tribunal finds that this explanation lacks the requisite detail that would be expected of a couple sharing their finances and saving for the future. At the very least the Tribunal would expect that the applicant could tell the Tribunal what his then wife was earning and what type of loan she had and how much this loan was for. The Tribunal’s concerns are also supported by the fact that the applicant could not name the conveyancing firm the sponsor worked for.
The Tribunal acknowledges that the applicant provided the Department and Tribunal with copies of joint bank statements between 2013 – 2023. However, the statements provided still have the sponsor and applicant’s names on them in 2023 when the applicant confirmed that he was no longer living with the sponsor since December 2021. As such the Tribunal would expect that the applicant and sponsor were no longer sharing a joint account after their separation in December 2021 however the account remained opened and used. In reviewing the joint accounts provided, there appears no significant difference in the activity in the statement from the joint accounts provided over the entire period. There is no clarity regarding who was depositing money and who was spending money. For example, the statement for August to September 2016 shows a balance of approximately $108 with one withdrawal and no deposit. September 2017 shows a small deposit from the ATO and withdrawals which do not demonstrate who was withdrawing money and has a balance of $726.31. Cash deposits can be seen but are not explained as to where they came from or who made them.
The bank statement dated 17 August to 16 September 2021 has five salary payments from Turosi for $1077.31. Turosi is a food provider however the applicant stated that his sponsor worked for a conveyancing company and he was working for his Uncle’s bakery. As such there is no clarity regarding whose salary this was. Further salary payments appear in future statements. There are some significant deposits of up to $3500 from identified people but these are not the sponsor or the applicant. The bank accounts whilst showing withdrawals of small amounts for groceries and day to day living do not demonstrate payments for utilities or rent which the applicant claims he was responsible for and nor do he withdrawals indicate that this account was being accessed and used by both parties.
The Tribunal has considered the joint account for the applicant and sponsor and finds that the statements provide no clear indication of a joint account that was used for daily expenses from 2016 onwards to indicate shared financial resources.
The applicant and sponsor do not have any joint assets which they have identified.
There is limited documentary evidence to show a pooling of financial resources. Of concern is the fact that the applicant can not demonstrate an understanding of the sponsor’s salary when she started her employment in the café and he was unable to provide any detail about her loan.
Further, the Tribunal notes the applicant provided the Department with a copy of his superannuation fund form and the sponsor was not nominated as a beneficiary. The Tribunal therefore gives this evidence no weight.
Based on the limited evidence the Tribunal finds that the applicant and sponsor did not pool their financial resources to the degree expected of a couple in a genuine spousal relationship.
Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
The applicant provided mail such as bank statements and an ATO assessment and a super fund letter addressed to their claimed joint address. Earlier statutory declarations provided with the initial application confirm the relationship from witnesses but provide no current detail about the applicant and the sponsor’s living arrangements up until the time they separated. Whilst the Tribunal accepts that mail addressed to both the applicant and sponsor were going to the same address, this does not necessarily mean that they were living together as husband and wife in a genuine relationship.
Whilst the Tribunal heard from two witnesses at hearing regarding the applicant and sponsor being in a genuine relationship which they claim was abusive, their inconsistent accounts about how they met the couple were not credible because of the inconsistencies outlined above. Furthermore, Ms Nguyen claimed she had only ever met the sponsor once and did not ever see her at the claimed shared house but met at a wedding and never saw the couple argue. Whilst she later explained this as a memory lapse because she was stressed and depressed about her own situation, there was no medical evidence to support her claimed anxiety, depression and memory lapse and the Tribunal notes that she had accepted the applicant’s request to be a witness and attended the Tribunal and her evidence she did provide was sufficiently clear. Further she was in attendance to provide details that would support the nature of the relationship. Whilst explanations were provided as to the inconsistencies, the Tribunal does not accept these are sufficient to explain why one witness was unable to confirm at hearing she had ever seen the sponsor at the applicant’s home. Following the hearing an explanation was provided which outlined that one witness was stressed due to her own personal problems and that the passage of time has also caused them to forget. Not withstanding these explanations, the applicant put forward these two witnesses who provided unconvincing accounts of their knowledge of the relationship and household due to the inconsistencies highlighted earlier and neither provided any convincing explanation as to how they could forget what they saw. As such the Tribunal gives no weight to their accounts of the claimed shared household and family violence claims.
The applicant stated that he would drive the sponsor to her job at the café however he was unable to recall the name of the cafe. The Tribunal finds it unusual that a husband could not recall what café his wife worked at. Whilst the applicant explained it was a long time ago and in a shopping complex, this lack of detail along with limited recollection of other key issues such as her loan causes the Tribunal concern regarding the true nature of their household.
Mail addressed to the applicant and sponsor at the same address has been provided however the Tribunal gives this minimal weight as this does not necessarily mean that they were residing at the same address, nor does it give insight into the nature of their household.
The Tribunal acknowledges that the applicant submitted an undated private rental agreement with their department application, however this was not signed by the couple and only the landlord and no further updates were provided.

100. Photographs on file demonstrate that the couple are known to each other and have socialised together and with family and friends however these in themselves do not necessarily reflect a joint household shared between a couple in a genuine relati8onship.
101. The Tribunal also notes that whilst the applicant and sponsor state in earlier statutory declarations to the Department that they share household responsibilities and also eat with the sponsor’s mother at her house, this again does not demonstrate to the Tribunal with any clarity that they share a household together to the degree expected of a couple in a spousal relationship.
102. Whilst the applicant discussed at hearing that they lived together and he would drive the applicant to work when she worked at the café, as stated above, he was unable to provide the name of the café which cause the Tribunal to doubt this claim.
103. The Tribunal acknowledges a statutory declaration from the applicant detailing their relationship and the claimed family violence with the sponsor dated 25 September 2023 and the psychologist’s report which discuss the shared household however the detail is self reported by he applicant and given the other discrepancies and limited knowledge of key issues, the Tribunal affords these limited weight.
104. The Tribunal is not satisfied that the parties shared a household together to the degree expected of a couple in a genuine relationship as the applicant’s lack of knowledge about their day to day living was limited and the witness evidence was not convincing given the inconsistencies outline above.
Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.
105. The Tribunal has considered the social aspects of the relationship, including whether the applicant and sponsor represent themselves to other people as being married to each other.
106. The statutory declaration made on 5 March 2015 provided to the Department states that the couple have been living together since their marriage and that they present to everyone as husband and wife, that they spend time as a family on weekends and have dinner with the sponsor’s family on weekends and that they undertake errands together such going to the market and grocery shopping.

107. Further the applicant has stated that they have travelled together to Vietnam and that the sponsor was in regular contact with his family in Vietnam and that when they did travel together in Vietnam they stayed together and presented as a couple. However, the applicant was unable to provide evidence of registration with the authorities when he claimed he and the applicant stayed at their family home in Vietnam as a couple.
108. The Tribunal acknowledges that the applicant provided photographs of them together and socialising however these photographs are not recent and do not represent the couple up to the time the applicant claims the family violence occurred which was at the beginning of 2020. The Tribunal acknowledges that family violence may creep gradually into a relationship and an exact date may not be possible to identify, however there is no indication based on the applicant’s claims or in the psychologist’s report to suggest this was occurring when the subclass 820 was granted yet the evidence before the Tribunal shows no progression of the relationship and minimal social activities post 2015.
109. Similarly, there are several witness statements dated 2013 and 2015 at the commencement of the visa application. However, no recent witness statements were provided and the two witnesses that attended the hearing provided evidence which lacked detail and were not consistent with the applicant’s claims and as such the Tribunal affords them no weight.
110. On the basis of the evidence before the Tribunal, it accept that the applicant and sponsor are known to each other and have socialised together in the company of family and friends and have travelled together however this evidence is either not dated or lacks the details to support the applicant’s claims that they presented as a couple in a spousal relationship since the application and grant of the subclass 820. Further, the photos that were provided were not dated and provide little insight into the development of the relationship since the grant of the subclass 820 partner visa. The Tribunal accepts that the applicant and sponsor travelled together, however it is not satisfied given the limited evidence that they presented themselves as a married couple to family and friends in Australia or when in Vietnam.
Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
111. The Tribunal acknowledges the submissions on file from the applicant and sponsor from their initial application for the visa outlining why they love each other and how they want to share their lives. The applicant said to the Tribunal that he and the sponsor planned to have a family and the sponsor was saving towards this. He claims she saved $80,000 in her own personal account. However, there is no evidence that such savings were made, and no evidence provided to outline their future plans or timeframes.
112. The applicant was unable to satisfy the Tribunal that he was aware of the sponsor’s government loan and demonstrated limited knowledge of her studies such as whether she had completed an undergraduate degree and what this was in. Whilst the Tribunal acknowledges that the applicant has limited English which he used as an explanation, he also confirmed that he spoke in Vietnamese to the sponsor and as such the Tribunal does not see his English language barrier as a reason for not knowing about his wife’s education.
113. Further, he was unable to tell the Tribunal the name of the café whom she was employed by when she left her studies. The Tribunal would expect that a couple who were committed to each other would share this information.
114. There is limited information before the Tribunal to support the claim that the couple were committed to each other and planned a future together when assessing their relationship post the grant of the subclass 820 visa.
Any other circumstances of the relationship.
115. The applicant provided a copy of a report from Tim Watson-Munro a psychologist who assessed the applicant on 13 September 2023 relating to his claimed family violence.
116. In summary the report states that it is “apparent from my history taking and assessment that Mr Truong was exposed to family violence, commensurate with the criteria referable to Section 4AB of the Family Law Act 1975”. He stated that the applicant (self reported) that the problems in their marriage commenced in about early 2020. The report does not outline the time of the incidents or specific incidents. He further states that “He describes a complex clinical and developmental history, the details of which I have described in the body of my report. Of significance, subsequent to his marriage in January 2013, Mr Truong was increasingly exposed to family violence, leading ultimately to the parties separating”.
117. The applicant provide a statutory declaration dated 25 September 2023 in which he states “ Unfortunately, early 2020, our marriage started to having argument between us until 1 December 2021, we were separate due to family violence because our relationship has ended and Josephine has threaten me many time during our marriage relationship and even when we ended this relationship that she still will report me to the department and deport me to Vietnam, if I don’t listen to her demanded in our marriage relationship”.
118. The applicant also provided a form 1410 statutory declaration regarding family violence in which he outlines the three incidents in which he identifies family violence in February, March and September 2020.
119. The psychologist’s report does not outline the specific incidents of family violence and when they occurred. Whilst the psychologist has assessed the applicant pertaining to family violence, this relates to one session he has had with the applicant, and he is not assessing the genuineness of the relationship pertaining to the requirements for the purposes of the Act as required by s.5F(2)(a).
120. Based on the evidence before the Tribunal, it is not satisfied that the applicant and sponsor were in a genuine and continuing relationship; and live together and not separately and apart on a permanent basis or that they had a mutual commitment to shared life to the exclusion of others following the initial application in 2013 and subsequent grant of the subclass 820 visa. There is insufficient evidence to support the applicant’s claims when considering the requirements under s.5F(2)(a) of the Act that they were in a genuine relationship which ended due to family violence. Whilst the applicant has provided submissions stating the family violence occurred in early 2020, there is insufficient evidence from the time the subclass 801 was being assessed in 2016 and at he time of this decision to indicate that the applicant meets the requirements under s.5F(2)(a) of the Act before the family violence provisions can be considered. The Tribunal finds that if family violence was perpetrated against the applicant by the sponsor, they were not in a genuine relationship at the time.

Given these findings the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision and that the relationship ceased because of family violence. Therefore, the applicant does not meet cl 801.221(2)(c).
Family Violence Provisions

122. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence. Given the Tribunal has found that applicant did not meet the requirements of s 5F(2) it has not turned its mind to the family violence provisions.
123. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
124. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Rachel Westaway
Senior Member

ATTACHMENT - Extract from Migration Regulations 1994
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:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(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).

[2024] AATA 512

17 January 2024

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