Vo (Migration)

[2022] AATA 3663

Vo (Migration) [2022] AATA 3663 (14 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Son Vu Vo

VISA APPLICANT:  Ms Thi Phuong Lan Tran

REPRESENTATIVE:  Mr Visa Nathan (MARN: 9701028)

CASE NUMBER:  1827612

HOME AFFAIRS REFERENCE(S):          BCC2018/283416

MEMBER:T. Quinn

DATE:14 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

Statement made on 14 September 2022 at 5:52pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry within visa period and live together as spouses – original date of intended marriage now passed – notice of new date filed the day before hearing – significant inconsistencies in evidence – limited financial, household and social aspects and nature of commitment while living in different countries – no documentary evidence of communication or travel provided – timing and circumstances of end of first marriage and start of current relationship – review applicant’s history of domestic violence and dishonesty – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 338(2), 347
Migration Regulations 1994 (Cth), r 1.15A(3), (4), Schedule 2, cls 300.215, 300.216

CASES
Chand v MIEA (unreported, FCA, 7 November 1997)
MIBP v Angkawijaya [2016] FCAFC 5
MIMA v Lay Lat [2006] FCAFC 61
MIMA v Rajalingham (1999) 93 FCR 220
Nejad v MIMA [1999] FCA 1827; [2000] FCA 741
Re MIMA; ex parte Durairajasingham [2000] 168 ALR 407
Sein v MIMA (2001) 114 FCR 370
Selvadurai v MIEA (1994) 34 ALR 347
T v MIMA [2000] FCA 467
Wang v MIMA [2000] FCA 963

statement of decision and reasons

application for review

1. On 17 January 2018, the visa applicant (‘the applicant’ or ‘Ms Lan’) applied for a Prospective Marriage visa[1] (‘the visa’) on the basis of her claimed relationship with the review applicant (her sponsor), Mr Son Vu Vo (‘the review applicant’, ‘the sponsor’ or ‘Mr Vo’).[2]

   [1]Specifically, a Prospective Marriage (Temporary)(Class TO) visa.

   [2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 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.

2. On 31 July 2018, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s visa application, not being satisfied that at the time of application the applicant and Mr Vo (‘the applicants’) o intended to marry within the visa period or that they genuinely intended to live together as spouses (‘the delegate’s decision’).[3]

   [3]As required by clauses 300.215, 300.216 and 300.221 of the Regulations. The definition of ‘spouse’ can be found in section 5F of the Act.

3. On 20 September 2018, the review applicant applied for a review of the delegate’s decision with this Tribunal.[4]

   [4]Pursuant to sections 338(2) and 347 of the Act.

4. On 8 September 2022, the review applicant and the applicant appeared before the Tribunal – the review applicant in person and Ms Lan via telephone.  The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages whenever Ms Lan was present. 

5. The applicants were represented in relation to the review and their representative also attended the hearing on 8 September 2022.

6. It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicants’ case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant(s), in as much detail as necessary to enable the decision maker to properly consider the case that is being put.[5]

   [5]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.

7. I have proceeded to a decision having regard to all the information before me.  For the following reasons, the decision under review is affirmed.  In reaching its decision, I have regarded:

   a.the oral evidence of Mr Vo and Ms Lan given at the hearing;

   b.the submissions made by Mr Nathan, the applicants’ representative, at hearing;

   c.all material filed by or on behalf of the applicants; and

   d.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.

   STATUTORY AND LEGAL FRAMEWORK

8. Clause 300.211 of the Regulations requires that Mr Vo be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. This is not in issue and I am satisfied that Mr Vo is a Vietnamese born Australian citizen.[6]

   [6]         See folio18 of the Department file.

9. Clause 300.215 of the Regulations requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period.

10. Clause 300.216 of the Regulations requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in section 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship and have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, and the couple live together, or not live separately and apart on a permanent basis.[7] In considering an application for a Prospective Marriage visa, the Tribunal may have regard to the considerations set out in rule 1.15A(3) of the Regulations for spousal relationships.[8]  While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of ‘spouse’ in legislation may assist in determining the parties’ aspirations.

    [7] Section 5F(2)(aa)-(d).

    [8]           Rule 1.15A(4).

11. Clause 300.221 of the Regulations requires, inter alia, that the applicant continues to satisfy the criteria in clauses 300.215 and 300.216 at the time of decision.

12. The issues in this case are whether the applicants genuinely intend to marry within the visa period and whether they genuinely intend to live together as spouses.

13. I have carefully considered all of the material and evidence before me.  I recognise the Tribunal is an independent statutory body and have reached my own conclusions as to the merits of the applicants’ case, which includes an assessment independent of any conclusions reached by the delegate. 

14. Compliance with prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[9]  In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants and I have not done so.  A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[10]

    [9]         Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

    [10]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

15. If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[11]

    [11]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].

16. It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[12]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [12]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].

    Timeline

17. The review applicant married his first wife in 1999.[13]  The review applicant has three children with his first wife: two daughters born in 1998 and 2000 and one son born in 2009.[14]

    [13]          See divorce order at folio 26 of the Department file.

    [14]          Ibid.

18. The review applied travelled to Vietnam with his first wife and their two children in 2009.[15]  He met the applicant on that trip.[16]

    [15]          See folio 48 of the Department file.

    [16]          See folio 48 of the Department file.

19. The review applicant gave evidence at hearing that he and his first wife separated in 2010 in very acrimonious circumstances.  This was not consistent with the applicant’s evidence or the review applicant’s own statement in the Department file.[17]  This is discussed further below.

    [17]          See folio 48 of the Department file.

20. The review applicant divorced his first wife on 23 July 2016.[18]

    [18]          See divorce order at folio 26 of the Department file.

21. The review applicant gave evidence at hearing that he visited the applicant in Vietnam in 2015.  The review applicant’s statement in the Department file does not refer to a 2015 visit to Vietnam but states he visited the applicant in March 2017 for three weeks.[19]

    [19]          See folio 48 of the Department file.

22. In August 2017 the review applicant returned to Vietnam and proposed to the applicant and held an engagement ceremony later in August 2017.[20]

    [20]          See folio 48 of the Department file.

23. On 17 January 2018, the applicants made the application which is the subject of this review.

24. On 27 July 2018 the Department conducted a telephone interview with the applicant.

25. The review applicant claims to have visited the applicant in Vietnam: in August 2018 for three weeks; in June 2019 for three weeks; in November 2019 for three weeks; in July 2022 for three weeks.[21]  However, no corroborating documentary evidence (apart from 14 photos of the couple together, without dates) has been supplied in this regard (such as flight bookings, airline tickets, bank statements, visas or stamped passports).  I do accept that the applicant has been to Vietnam at least once with his son since making his application for review based on the photos supplied.

    [21]          See legal submissions of 7 September 2022.

    Evidence Generally

26. Although many aspects of the applicants’ evidence were consistent, there were many significant inconsistencies which suggest to me this is not a genuine relationship where the applicants genuinely intend to marry and live together as spouses. 

    Genuine Intention to Marry within the visa period

27. The applicant’s original application was based on a notice of intention to marry on 6 October 2018 which was signed by an authorised marriage celebrant.[22]  I am puzzled then by the fact that the applicants, after nearly four years since their original date for intended marriage, have not married.  This is particularly perplexing given the applicant’s submission on 7 September indicating that he has been to Vietnam to see Ms Lan four times since their application was refused in 2018.[23]

    [22]          See folio 29 of the Department file.

    [23]          See legal submissions of 7 September 2022.

28. The review applicant gave evidence at hearing that he is not on good terms with his ex-wife and that he only sees his daughters once or twice a year.  He gave evidence that he sees his son more often, once or twice a week.  He gave evidence that he does not want his daughters to know too much about his new wife and they would not attend the wedding but that his son would be likely to attend the wedding.  In these circumstances, I am puzzled by the fact that the applicants have not married in the last four years, particularly given they have filed photos with the review applicant and his son together with the applicant in Vietnam.

29. When asked why they had not already married:

    a.The review applicant stated it was because of the COVID19 Pandemic and then said he did not get his vaccination until March 2022 and although he thought of getting married, he did not mention this to the applicant and said he could have done that.  He went on to say that if this option (i.e. the present visa application) was not viable he could marry the applicant and travel between the two countries but that it would be more supportive for him and financially preferable to live together in Australia on two incomes;

    b.The applicant initially gave evidence that they had not already got married because of the COVID19 Pandemic.  I asked why they had not got married before or after the pandemic (i.e. 2019 or 2022) and the applicant said because they plan to have their wedding celebration in Australia.

30. A particularly effective way for applicants to demonstrate that they hold a genuine intention to marry, while awaiting a review hearing following an initial visa refusal, is to take positive steps towards achieving the outcome they had proposed in their original application. That is to say, getting married notwithstanding that their visa application has been refused would be very compelling evidence that they hold a genuine intention to marry.  Even allowing for the COVID19 Pandemic, this does not seem consistent with what one would expect of a couple who have a genuine intention to marry.  Whilst I acknowledge the applicant’s evidence that they wish to have the celebration in Australia, the review applicant’s evidence that he has faced financial difficulties and the new notice of intention to marry filed with the Tribunal dated 7 September 2022 for a ceremony on 14 January 2023 signed by an authorised marriage celebrant, I am concerned about the true nature of the applicants’ intentions.  I am concerned that the new notice of intention to marry, filed the day before the hearing, was obtained in an attempt to produce a positive migration outcome rather than as a reflection of the applicants’ genuine intention to marry.

31. The applicants gave consistent evidence about the plan for their wedding that it would be at a restaurant in Springvale with five tables and a total of approximately 50 guests.

32. Making decisions in these types of cases requires a balancing of the evidence in favour and against the applicants. Based on all of the evidence outlined in this decision, I am not satisfied that the applicants had a genuine intention to marry at the time of application as required by clause 300.215.

    Genuine Intention to live together as spouses

33. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, I make the following findings.

    Financial aspects

34. Financial aspects to be considered include joint ownership of assets; joint liabilities; the extent of pooling of financial resources; any legal obligations owed between applicants; and any sharing of day-to-day household expenses.

35. The applicants filed evidence of a money transfer from the sponsor to the applicant from December 2017 for AUD1,150 with the Department.[24]  The day before hearing, the applicants filed monograms showing payment from the sponsor to the applicant as follows: AUD1,000 on 2 May 2019; AUD100 on 21 November 2019; AUD900 on 13 January 2020; AUD200 on 15 July 2020; AUD300 on 22 March 2021; AUD200 on 15 July 2021; AUD153 on 23 September 2021; AUD550 on 8 November 2021; AUD200 on 20 November 2021.[25]  However, at hearing the review applicant gave evidence that he sent this money to the applicant for her and her siblings to help them get the necessary treatment for the applicant’s father who suffered from cancer and ‘sometimes she needs expenses this and that so where I can I support her’.  However, when asked what the money was for, the applicant gave evidence at hearing that it was for her birthday present, for holiday and anniversary.  When asked who paid for her father’s cancer treatment, she gave evidence that her family paid.  I find this inconsistent evidence troubling.

    [24]          See Department file and delegate’s decision.

    [25]          See submissions of 7 September 2022.

36. The applicants gave consistent evidence at hearing that the review applicant is a concreter.  The review applicant gave evidence that he earns between AUD700-1,200 per week depending on his workload and the season.  The applicant gave evidence that Mr Vo earns AUD600 per week depending on his workload.  The applicants gave consistent evidence that the applicant earns VND8,000,000 per month as a salesperson.

37. The review applicant gave evidence that he is trying to get Ms Lan learn to train as a nail technician and that he has friends who own a store she can work at in the local community which is predominantly Vietnamese.  He gave evidence that she does not speak English and he plans to teach her after she arrives.  The applicant gave evidence that she does not know what her working situation would be in Australia but Mr Vo ‘promised he will help me to find a job’.  The applicants gave consistent evidence that the applicant has not learnt English yet because she is too busy with her work in Vietnam.

38. The applicants gave consistent evidence that the applicant will live with the review applicant upon her arrival in Australia.  However, the applicant did not know which suburb the review applicant lived in and gave vastly different details in relation to the size of his residence compared to the review applicant’s evidence at hearing (set in more detail under ‘nature of the household’).  The review applicant gave evidence that it will help him considerably financially to have two incomes when the applicant is living with him.

39. I accept that it is difficult to maintain joint finances while not living in the same country and I acknowledge the review applicant’s payments to Ms Lan and that he has offered financial support to her, although their evidence about what this was for was inconsistent. 

40. I have placed some weight in favour of the applicants in relation to the financial evidence.

    Nature of the Household

41. Household aspects to be considered include: responsibility for the care and support of children; living arrangements; and responsibility for housework.

42. The review applicant gave evidence that he ‘always want Lan at home but during free time she can work at grocery store’.  He went on to say for the first five years he will support running the household and help her settle in but then said, ‘I’m bad at cooking, she will cook, I don’t clean up as well, she will do it all.’  He gave evidence that when he visited her in Vietnam, she helped with his clothes and ‘she provides everything’.  

43. The applicant gave evidence that they will ‘share the household work together, cooking, cleaning and take care of children’.  She gave evidence that Mr Vo has not cooked for her before, but she has cooked for him.

44. The review applicant gave evidence that Ms Lan has only met the review applicant’s son and not his daughters.  When asked if Ms Lan wants children, Mr Vo gave evidence that ‘at the moment she is happy with my son but being her age and uncertain situation, wait and see outcome, if she can come here then we plan to have children, if not successful then we could there (have children in Vietnam)’.  He went on to say that at the moment they were only talking about having one child and they are talking about the financial situation as he has no financial foundation.  The applicant gave much more direct evidence that ‘yes’ she wanted children and ‘we plan to have two children but oncer I arrive we discuss further’.  I asked if he wanted more children and she gave evidence ‘no, because he already has three therefore, he only wants one or two’.  I asked if this could be a problem for the couple and she said no.

1. The review applicant gave evidence that he sees his son twice a week, picking him up and taking him to school and sometimes after school ‘if required’, but that he does not stay overnight with the review applicant.  He gave evidence that he sees his daughters twice a year, that they have ‘mental issues’ because of domestic violence circumstances they were present for in his first marriage.  The review applicant gave evidence that he had not told Ms Lan about his domestic violence history saying, ‘it is not a good history, so I don’t mention much’.  The applicant gave evidence that ‘he (Mr Vo) only visit his son very often but not much the daughters’. When asked how often he sees his son, the applicant gave evidence ‘on the weekend and also whenever he has time’.  When asked how they spend their time together, the applicant gave evidence that they ‘go around together and have a meal’.  This inconsistent evidence troubles me.  These are day to day activities one would anticipate have been discussed by a couple with a genuine intention to live together as spouses.

2. The review applicant gave evidence that due to his marriage issues, domestic violence circumstances (including an intervention order which taken out against him) and consequent loneliness he was drinking (alcohol) every day and ‘Lan has helped soothe that loneliness, with her being here we will be good’.  When asked if he is still drinking alcohol every day the review applicant gave evidence that he is drinking every day at the moment and Ms Lan knew about this and has been supportive.  The applicant gave evidence that Mr Vo drinks once a week.  I am troubled by this evidence.

3. The review applicant gave evidence that he recently moved suburbs to be closer to the Vietnamese community and closer to his new work.  He gave evidence that his residence is one bedroom.  The applicant gave evidence that Mr Vo lives in an area where the Vietnamese community is, has lived there for 25 years and it has four bedrooms.  I am troubled by this evidence.  Moving to a new house is a significant life event that I consider would be shared by individuals who genuinely intend to live together as spouses.  Similarly, the size of any future residence a couple intends to live in together is also something one would reasonably expect to be discussed.

4. I accept that the applicants have not lived together for more than a few weeks at a time which means they have had limited opportunities to share their living arrangements and have not been able to establish a permanent joint household.  However, I am very concerned by the inconsistencies in the evidence in relation to the future household arrangements which are significant factors for any couple planning to live together as spouses in the future.

5. On balance, I consider the household evidence weighs against the applicants.

   Social Aspects

6. Social aspects include: whether the applicants represent themselves to other people as being married to each other; the opinion of the applicants’ friends and acquaintances about the nature of the relationship; and the planning and undertaking of joint social activities.

7. The review applicant claims to have visited the applicant in Vietnam: in August 2018 for three weeks; in June 2019 for three weeks; in November 2019 for three weeks; in July 2022 for three weeks.[26]  However, no corroborating documentary evidence (apart from 14 photos of the couple together, without dates) has been supplied in this regard (such as flight bookings, airline tickets, bank statements, visas or stamped passports).  I do accept that the applicant has been to Vietnam at least once with his son since making his application for review based on the photos supplied. 

   [26]          See legal submissions of 7 September 2022.

8. Most of the photos supplied show only the applicants together, not in a group setting.

9. The applicants filed with the Department statutory declarations from a colleague of Mr Vo dated 20 December 2017 and a family friend dated 21 December 2017 which are relatively generic in nature and now very dated, I place minimal weight on these documents.

10. The applicants both gave evidence at hearing that Mr Vo proposed to Ms Lan in front of one of her friends.  When asked if they exchanged rings after he proposed, the review applicant said no because he wanted to keep things simple but ‘I borrow money and I did give her a ring, she gave me rings but at that time I didn’t wear it because it was the gift, I said to her parents need money for your dad’s treatment so don’t need to buy this for me’.  He gave evidence that Ms Lan wears her ring.  Ms Lan gave more direct evidence that ‘yes’ they exchanged rings and ‘yes’ she wears her ring and ‘yes’ he wears his ring. 

11. I am mindful that the parties are separated by distance and have had only limited opportunities to meet. 

12. Taking the evidence as a whole, I place little weight on the social aspects of this case.

    Nature of the applicants’ commitment to each other

13. Commitment aspects include: the duration of the relationship; the length of time (if any) applicants have lived together; the degree of companionship and emotional support that the applicants draw from each other and whether the applicants see the relationship as long term.

14. There were critical differences in the evidence given at hearing in relation to the early years of the applicants’ relationship and the communication they have had since that time which deeply trouble me. 

15. The review applicant gave evidence about domestic violence history with his first wife resulting in her hospitalisation and an intervention order being taken out against him in 2010.  He disclosed he had not told Ms Lan about this because it was not a good history.  He gave evidence that he and his first wife separated in 2010 and divorced in 2016.  However, in his statement filed with the Department, he stated ‘[b]etween 2009-2016 my ex-wife was suspicious between me and Lan, so we been fighting for numerous time over this matter… to the stage where we slowly drifted apart…. I kept denying it as I didn’t want to break or hurt my family in any way but soon gave up… my ex-wife and I file for divorce in 2016’.[27] 

    [27]          See folio 48 of the Department file.

16. The review applicant gave evidence at hearing that he did not stay in touch with Ms Lan until 2015 when he travelled back to Vietnam.  He gave evidence that they then were just friends in 2017 it became something mor than friends.  This also seems inconsistent with the aforementioned statement made to the Department.

17. The applicant gave evidence at hearing that she has been in a relationship with Mr Vo since 2009 when they first met even though he was still married.  She gave evidence that she saw the relationship as long term in 2017.  The applicant’s statement in the Department file is consistent with her evidence at hearing and also states that once Mr Vo returned to Australia in 2009, he sent her text messages.[28]  However, there is no evidence of any text messages or phone calls between the parties in the Department or Tribunal files.  I am puzzled by this.

    [28]          See folio 47 of the Department file.

18. The applicants gave relatively consistent evidence about the communication they have over the phone: the review applicant gave evidence at hearing that he speaks to Ms Lan two or three times per week for half an hour and they talk about work and what she is trying to plan; the applicant gave evidence that they speak three or four times per week for one hour and talk about job, life,  health and meals.  They both gave evidence that they speak in the night time for Mr Vo which is afternoon for Ms Lan.  When asked why he has not supplied phone records of these conversations Mr Vo stated he has moved from place to place and could not get his phone records.  I do not find this explanation persuasive.  When asked why they had not provided phone records, the applicant stated that they had filed that evidence.  I note phone records have not been filed.

19. The review applicant gave evidence at hearing that he is not good at text messages, he is better at talking and just ‘ring and listen and talk’.  He gave evidence that writing Vietnamese is hard for him and he finds reading it hard to understand.  When asked if they text message each other, the applicant stated ‘yes’.  When asked what Mr Vo’s Vietnamese was like, Ms Lan said ‘very good’.  I am troubled by the fact that the applicants have not filed any evidence of any text message communication.

20. The review applicant was aware of the applicant’s father’s cancer, although he gave evidence at hearing that it was stomach cancer whereas the applicant gave evidence that it was lung cancer.  The applicant gave evidence that her father passed away in May 2022 from lung cancer.

21. The review applicant gave evidence that due to his marriage issues, domestic violence circumstances and loneliness he was drinking (alcohol) every day and ‘Lan has helped soothe that loneliness, with her being here we will be good’.  When asked if he is still drinking alcohol every day the review applicant gave evidence that he is drinking every day at the moment and Ms Lan knew about this and has been supportive.  The applicant gave evidence that Mr Vo drinks once a week.  I am troubled by this evidence.

22. The review applicant gave evidence at hearing that he draws companionship and emotional support from the applicant and that he feels a need for this in person.  He gave evidence in various ways indicating that her presence in Australia would help him emotionally, financially and practically.  However, the applicant did not seem to be aware of many of the issues the review applicant has been dealing with and the review applicant was forthright in saying he had not disclosed his domestic violence or criminal history to Ms Lan.  This raises some concerns.

23. The applicants gave consistent evidence at hearing that their future plan was for the applicant to move to Australia, and Mr Vo would help her secure work and they would live together and support each other.

24. I find the evidence against the applicants in relation to the commitment and companionship factors outweighs the evidence in their favour.

    Other Concerns

25. The review applicant has a criminal history of perjury and obtaining property by deception.  This was put to him at hearing, and he was given the opportunity respond to the statement that it could suggest he is a person with a propensity to be dishonest.  The review applicant said he did not attend his court dates and gave evidence about not being paid for work done as a concreter and his difficult marriage and financial pressures.  It was confusing evidence and very difficult to follow his explanation in relation to these offences.  Ultimately, given the lack of clarity around these offences I place no weight against the applicant in relation to this history.

26. The applicants’ representative acknowledged that there had been inconsistencies in the evidence given but they were not fatal inconsistencies and may have been the result of lack of proper communication.  I do not agree with this submission and find many of the inconsistencies in the evidence given deeply troubling and suggestive that these applicants do not genuinely intend to live together as spouses.

27. The Tribunal Guidelines in relation to assessing credibility dictate that evidence is to be assessed in its entirety, not just in isolated parts.[29]  The guidelines also state that Members should focus on what is objectively or reasonably believable in the circumstances.  The Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.[30]  Where evidence is incoherent, vague or lacking the detail or knowledge where greater detail or knowledge might be expected of a person in the applicant’s claimed position, the weight placed on the applicant’s evidence may be limited and the applicant’s credibility may be questioned.[31]

    [29]Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997); Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J, with whom North J agreed, at [50]; Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370

    [30]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at 348.

    [31]Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827 per Tamberlin J at [9], upheld on appeal, Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963 per Goldberg J at [20] to [23]; “T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [27]-[47]

    CONCLUSIONS

28. There are many pages of documents before me.  I have read and carefully considered each of these, although they may not all be referred to in the written decision herein.  I have assessed the evidence before me and all of the written and oral submissions of the applicants’ representative. 

29. I accept that the applicants have known each other since 2009.  However, I am very concerned about the nature of the applicants’ motivations and much of the inconsistent evidence given by the applicants as set out above.

30. Having regard to the evidence as a whole and the considerations for a spousal relationship (to the degree these factors may be applied to determine future intention), I am not satisfied that at the time of application or at the time of decision the applicants genuinely intend to live together as spouses. Therefore, clause 300.216 of the Regulations is not met.

31. For the reasons above, the applicants do not satisfy the criteria for the grant of the visa.

    decision

32. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

    T. Quinn
    Member