Vo (Migration)

[2023] AATA 3824

Vo (Migration) [2023] AATA 3824 (19 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ngoc Han Vo

REPRESENTATIVE:  Mr Andrew Au (MARN: 1686684)

CASE NUMBER:  2004691

HOME AFFAIRS REFERENCE(S):          BCC2016/3708685

MEMBER:Stephen Conwell

DATE:  19 October 2023  

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 19 October 2023 at 5:56pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – purchased wedding rings 18 months after claimed wedding – financial aspects – joint bank account – nature of the household – social aspects – nature of the commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 820.211

CASES
He v MIBP [2017] FCAFC 206
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 4 November 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant was the spouse of the sponsor at the time of application.

4. The applicant was represented in relation to the review by her registered migration agent (representative).

5. At the request of the parties the Tribunal agreed to hold the hearing by video.

6. The sponsor participated in the hearing by video on 17 October 2023 to give evidence and present arguments. The Tribunal received oral evidence from the applicant, Ms Thi Trinh Nguyen by video. There were no other T witnesses.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative and the interpreter both attended the Tribunal hearing by video.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant and the sponsor are in a genuine and continuing spousal relationship.

   Whether the parties are in a spouse or de facto relationship

9. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

10. ‘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).

11. 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 parties’ 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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has sighted a certificate for a marriage that took place on 21 October 2016 in Sunshine, Victoria.. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

13. According to the transcripts of the simultaneous telephone interviews the Department conducted with both parties on 12 December 2019, the parties first claimed to have married in Vietnam on 21 October 2016.  The applicant makes the same claim in her relationship statement (with English translation) which seems to have been written in August 2019, where she states:  “On 21/10/2016, we officially became a married couple. We held a solemn wedding celebration at Minh Hai Restaurant in Ca Mau City with the witnessing of both sides of our family in Vietnam.”  In his corresponding relationship statement of around the same time, the sponsor claims: “…Han and I held the engagement celebration in Melbourne and then we travelled to Vietnam to hold our traditional wedding there.”

14. When the Department later questioned this claim, noting that both parties were in fact in Australia on that date, the representative explained in a written submission dated 3 January 2020, that the parties meant to say that they exchanged rings at the Gold Leaf restaurant on 21 October 2016 and a traditional wedding was held in Vietnam on 13 November 2016.  The Tribunal has considered the evidence, including the parties’ testimony at hearing. It is prepared to accept the parties’ explanations on this particular discrepancy, as conveyed by the previous representative.

15. The Tribunal also invited the parties to comment on the delegate’s concern that the parties purchased wedding rings some on 25 May 2018, some 18 months after the claimed wedding on 13 November 2016. The sponsor had no meaningful explanation to this query; the applicant told the Tribunal that they like giving each other gifts from time to time. The Tribunal is not satisfied by this reply. The exchange of gold wedding rings some 18 months after the claimed wedding date is not simply an exchange of gifts or other jewellery between a loving couple. The Tribunal places some adverse weight on the parties’ responses to this question.

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

16. The Tribunal has taken into account the evidence provided as to the financial aspects of the relationship including any joint ownership  of major assets, any joint liabilities, the extent of pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and any sharing of day-to-day household expenses.

17. There is no evidence that the parties jointly own any assets or owe any legal obligations to one another The Tribunal notes that the parties have had a joint Commonwealth bank account (account number xx5187) since December 2016 for daily expenses such as food, clothes, rent and their wages being deposited into the joint bank account. As noted in the decision record a number of transactions indicate that shortly after the salary or cash deposits, a similar amount of money is then soon transferred to other bank account or withdrawn cash, resulting in a small balance most of the time.  The Tribunal raised this concern regarding the genuine nature and use of the joint bank account. The parties answered (when interviewed separately by the Tribunal) that they each transfer monies to and from their respective personal bank accounts and their joint CBA account. The Tribunal accepts this explanation.

18. The delegate raised many concerns arising from the inconsistencies in the parties responses during their simultaneous telephone interviews.  The parties’ then representative provided two written submissions dated 3 January 2020 and 8 January 2020 responding to these concerns. In summary, the inconsistencies relating to the parties’ financial arrangements is explained by claiming that the sponsor “does not care much about the money, or bank account that is under his wife’s controls and he never asks; so he does not remember and is uncertain about that. In other instances, it is claimed that the sponsor is an honest man of limited education, with a bad (or short) memory.

19. The Tribunal has considered this explanation but it is minded to agree with the delegate that it is  reasonable to expect that a couple in a genuine marital relationship would have a basic knowledge of their shared and personal finances to better assist them to plan for a shared future together.

20. The Tribunal acknowledges the evidence referred  to in the delegate’s decision which includes the parties’ respective tax returns, motor vehicle insurance, Medicare/Centrelink/VicRoads letters  and Wills amongst other documents dating from 2018 – 2019 which nominate each other as respective spouses. However it also notes that in the more than three years that have lapsed since the delegate’s decision of 28 February 2020, there has been no more current evidence submitted in support of the parties’ application. Consequently the Tribunal places limited positive weight on the financial aspects of the relationship.

    Nature of the household

21. The Tribunal takes into account the evidence as to the nature of the household including the parties’ living arrangements and any sharing of the responsibility for housework.

22. On the evidence presented includes statements by each of the parties, regarding the nature of the household. There are also supporting documents such as supporting Form 888 statutory declarations, joint utilities and insurance bills and receipts. The Tribunal gives some weight to this evidence that the parties shared a household.

23. The Tribunal finds that the evidence submitted, in particular the parties’ written statements, supports the claims that the parties have shared a household across several rental addresses as well as living with the sponsor’s sister and brother-in-law, which has been their accommodation since September of last year.  

24. Therefore, the Tribunal accepts that the parties share a residence and the responsibilities of a household and places positive weight on this consideration.

    Social aspects of the relationship

25. The Tribunal has considered the evidence provided as to whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

26. The parties have provided numerous documents, including their personal statements, Form 888 statutory declarations from friends, as well as photographs with each other, at their wedding and in several social setting settings.  While the photographs indicate that joint social activities have been undertaken by the parties and that the parties married, they are not, in the context of other conflicting evidence, persuasive evidence of a committed spousal relationship. The Tribunal gives little weight to the two Form 888 statutory declarations both executed  in 2016 – the comments made in both are brief and appear to lack sincerity. Given the passage of time since then, the Tribunal would have expected to see more evidence from other family members, work colleagues and so on to support this facet of the relationship.

27. The Tribunal accepts there is some evidence in favour of the social aspects of the relationship, however it agrees with the delegate that both parties still have significant ties to Vietnamese (indeed the sponsor stated that most of his siblings still live there – it is only he and his sister who live in Australia) and therefore both have sufficient family and cultural reasons to travel to Vietnam, including in November 2016, which they claim was primarily for the wedding celebration. Having regard to the several responses by their then representative, the Tribunal finds that the sponsor's lack of knowledge of the occasion during the simultaneous interviews conducted, suggests that this joint travel was not made for a genuine wedding ceremony.

28. Accordingly, the Tribunal places little weight on the social aspects of the relationship.

    Nature of the persons’ commitment to each other

29. The Tribunal has considered the evidence provided in relation to the nature of the persons’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long term.

30. The Tribunal adopts the finding of the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, in observing that a decision-maker is not required to make the applicant's case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Whilst it has regard to the written submissions, including the two responses to the Department’s ‘natural justice’ letter, the Tribunal was not persuaded as to the parties’ credibility during the course of the hearing. Overall their separate testimony did not convey to the Tribunal the degree of credibility and genuineness that it would expect to see from parties who have been together since September 2016. The Tribunal finds that the parties have not provided sufficient evidence that they have combined their affairs in any meaningful way, nor is there credible evidence that either party sees the relationship as long-term. On balance the evidence and testimony at hearing lead the Tribunal to conclude that relationship is non-genuine and the parties lack a genuine long-term commitment to each other as spouses.

31. On the basis of the above, the Tribunal does not consider that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others, are in a genuine and continuing relationship, and live together or not separately and apart on a permanent basis.

32. The Tribunal is not satisfied that the requirements of s.5F are met at the time the visa application was made and the time of this decision.

33. Therefore, the applicant does not meet cl.820.211(2)(a) and cl.820.221.

34. There is no claim or evidence before the Tribunal that the applicant meets any of the alternate criteria as contained in clauses 820.221 (2); 820.221 (3)(a) and (b)(i); or 820.221(3)(B)(ii).

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Stephen Conwell
    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).