Vu (Migration)

[2019] AATA 4271

Vu (Migration) [2019] AATA 4271 (12 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Hien Nhien Vu
Mr Chi Nhan Vu

CASE NUMBER:  1723221

DIBP REFERENCE(S):  CLF2017/71714 OSF2013/026055

MEMBER:Adrienne Millbank

DATE:12 September 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Migrant) (Class BC) visas.

Statement made on 12 September 2019 at 10:56am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC – Subclass 100 (Spouse) – not genuine and continuing relationship – no joint ownership of assets; joint liabilities, or legal obligations owed to each other – finances managed separately – lack of evidence – contrived evidence – contrived marriage – credibility issues – parties do not have mutual commitment to shared life to exclusion of others – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth) ss 5, 65, 376
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 100.221

CASES
He v MIBP [2017] FCAFC 206

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 Immigration on 20 September 2017 to refuse to grant the visa applicants Partner (Migrant) (Class BC) visas under s.65 of the Migration Act 1958 (the Act).

2. The first-named applicant (the applicant) is a Vietnamese national born in Vietnam in 1963 and aged 55 at the time of decision. She applied for the visa on 21 March 2013 on the basis of her relationship with her sponsor, and first arrived in Australia in November 2014 on a Partner (Provisional) (Subclass 309) visa granted on 1 October 2014. The second-named applicant is her son, born in Vietnam on 8 June 1999 and 20 years old at the time of decision.

3. The sponsor was born in Vietnam in 1959 and is 60 years old at the time of decision. He migrated to Australia in the early 1980s under the offshore refugee resettlement program from a refugee camp in the region and obtained Australian citizenship by grant in 1986.

4. At the time of application, Class BC contained one subclass: Subclass 100 (Partner). 

5. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (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.

6. The Delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221(2)(b) and therefore did not satisfy cl.100.221. The Delegate considered the evidence provided for consideration of the applicant’s Partner (Subclass 100) visa limited and unconvincing as evidence of an ongoing relationship between the applicant and the sponsor.

7. The Delegate noted in the decision record that the Department received the ‘various documents’ that it found limited and unconvincing on 19 April 2016, and that subsequent attempts to contact the applicant in relation to the application were unsuccessful. The Delegate noted that a document request letter was sent to the applicant’s last address provided by the recipient for the purposes of receiving documents on 23 February 2017; that multiple attempts were made via telephone to contact the applicant on 6 June 2017; that another document request letter was sent to the applicant at the last notified address provided by the recipient for the purposes of receiving documents on 6 June 2017; and that multiple attempts were again made via telephone on 31 August 2017 to contact the applicant in relation to the application.

8. The Delegate concluded that the applicant’s relationship with her sponsor was not genuine and continuing as required under s.5F(2)(c) or 5CB(2)(b).

9. The applicants appeared before the Tribunal on 23 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

10. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing. 

11. At the outset of the hearing the Tribunal gave to the applicant a copy of a s.376 certificate. The Tribunal advised the applicant that it considered the certificate valid for the reason that it would not be in the public interest to disclose the documents because they could reveal investigative methods used by the Department. The Tribunal provided the applicant with the gist of the information covered by the certificate. The Tribunal advised the applicant that the information would not, in itself, be the reason or a significant part of the reason for affirming the decision under review because it was not directly relevant to the issue before the Tribunal which was whether she and the sponsor are in a genuine spousal relationship. The Tribunal advised the applicant that it would nevertheless, pursuant to procedural fairness requirements, invite her response.

12. The Tribunal invited the applicant to comment on the validity of the certificate and on the information it covered. The Tribunal advised the applicant that she could seek an adjournment and consult with her representative before responding. The applicant sought and was granted an adjournment, following which she advised the Tribunal that she accepted and had no comment to make on the validity of the certificate; and that she understood and accepted the validity of the information it covered.  She stated that she was advised by her lawyers about the information, the gist of which was that the sponsor has a criminal record, at the time she lodged the visa application. The information about the sponsor’s criminal record was not relevant to the review and the Tribunal consequently did not give it any weight.

13. The applicant stated at the outset of the hearing that she had read and understood the Delegate’s decision. She claimed that she did not receive any of the requests for further information sent by the Department prior to the refusal, but acknowledged that she and the sponsor had changed their addresses and other contact details without informing the Department. She advised that they had also changed their mobile phone numbers.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue before the Tribunal is whether at the time of decision the applicant is in a genuine spousal relationship with the sponsor.

    Whether the parties are in a spouse or de facto relationship

16. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

17. ‘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 parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of the parties’ marriage certificate issued by the Socialist Republic of Vietnam was provided, certifying that they married in Ho Chi Minh City and that their marriage was registered on 25 January 2013. 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). 

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

19. The parties provided to the Tribunal before the hearing a copy of a letter dated 18 June 2019 from a bank confirming that they have a joint account. A copy of transactions from this account for the period 22 March 2019 to 14 June 2019 was provided. The transactions show transfers into and out of the account, and that the applicant’s salary but not the sponsor’s pension was paid into the account over the period shown. The applicant confirmed at hearing that she has worked full-time since arriving in Australia: for the first two years she did farm work, and since then she has been employed as a nail technician. The transactions from the joint bank account show only one household-type purchase over the nearly three-month period, from a supermarket, of $15. They do not indicate that the account has been used for any joint financial commitments.

20. The sponsor confirmed that he has not been in paid employment since 2013, since before the applicant arrived, and that he has maintained his own personal bank account into which his disability support pension is paid. The Tribunal put to the applicant that she had declared in her statutory declaration signed on 15 March 2016 provided to the Department ‘we have shared bank account’.  When asked at hearing when the joint account was opened, she was unable to say. When asked why the joint account was opened, as it appeared from the transactions shown that it was not being used to fund a joint or family household, she responded that she was advised to open a joint account for the purpose of the visa application. She stated that she did not realise before she received this advice that she needed such documentation.

21. The Tribunal asked the sponsor to explain what he meant in his statutory declaration of 15 March 2016 where he declared ‘we have a shared bank account’, and ‘I provide financially for my wife and step-son’. He stated that he contributes cash towards household expenditure. The applicant stated that she did food shopping for the household out of her income. As at 16 August 2019 the parties’ joint bank account held a balance of AUD 115.81. The parties advised that they have no savings in any other account.

22. The parties confirmed also at hearing that they have no joint ownership of any assets; or joint liabilities; or any legal obligation owed to the other party. The sponsor stated that he owns a car that is registered in his name. The second-named applicant claimed that he has not engaged in any sort of paid employment, ever. He claimed that he has remained a student, financially dependent on his mother. He advised that he has three more years of full-time study before qualifying as an electrician. He confirmed that his mother paid his TAFE fees.

23. The Tribunal accepts that the sponsor is on a disability support pension and that the applicant’s work is not highly paid. The applicant has nevertheless been in full-time employment, and both she and the sponsor have had regular incomes for the five years they claim to have lived together in Australia in a spousal relationship. The Tribunal finds that they have managed their finances separately. The Tribunal accepts that each of the parties has contributed financially to the share houses they have lived in, and that they have used cash for many of their transactions. The evidence does not support and the Tribunal does not find, that the parties have pooled their financial resources and that they share day-to-day household expenses as a married couple.

    Nature of the household

24. The parties claim that since the applicant’s arrival in Australia they have rented rooms in shared houses in three Brisbane suburbs: Richlands, Inala and Goodna. A copy of a joint tenancy agreement, signed on 1 November 2017 for the period 20 December 2016 to 18 December 2017, was provided for a house in Inala. The parties explained that after the person who organised the share house moved out, they stayed in the property and paid all the rent until they moved into the applicant’s sister’s house. The Tribunal asked why the agreement was signed when the rental period was nearly over. No explanation was provided other than that they provided the tenancy agreement to show that they lived together and not with other people for one year.

25. The Tribunal asked the applicant several times whether she and the sponsor had ever established a joint household of their own, where they intended to live together with her son without anyone else.  She responded that they have not; they have always moved into share houses. The Tribunal asked the applicant why she didn’t continue living with her husband and son as a family unit in the Inala house after the principal tenant left, as she was working full time and her sponsor was in receipt of a disability support pension, so they should have been able to afford to continue living in a place of their own. The applicant responded that she moved into her sister’s house in Goodna for the reason of ‘better relationships’. She advised that she gets on well with her sister. She stated that her sister’s household comprises eight people including the applicant’s sister and brother-in-law, their children, the applicant, her son, and the sponsor. She stated that the household eats together and that she or her sister cook for the household, depending on their work commitments. She stated that the sponsor helps.

26. A letter dated 18 June 2019 was provided by the applicant’s sister stating that the applicant, her son and the sponsor have lived in her house since 1 January 2018, and that they pay AUD 150 a week rental. Copies of utility bills in the names of the applicant and sponsor at the applicant’s sister’s address were provided. At hearing, when asked why the bills weren’t addressed to the applicant’s sister as the owner of the house, the applicant stated that her sister agreed to put the accounts in her and the sponsor’s names for the purpose of obtaining documents to support the visa application.

27. Copies of some official mail addressed to each of the parties at the same addresses were provided. The Tribunal is of the view that some of the mail, for example a bank letter dated 18 June 2019 addressed only to the applicant confirming the opening of a joint account in 2017 of which there is no evidence of use until 2019, was contrived for the purpose of the visa application.

28. Rent receipts in joint names were provided for some months for the Inala residence. The Tribunal accepts that the parties remained for a period in a share house after the principal tenant or tenants left, before the parties moved into another share house, the applicant’s sister’s house. The Tribunal notes that the parties claim to have lived in a married relationship for five years, and does not accept that their period of joint rental responsibility in 2017 demonstrates that they ever established their own home as a married couple.

29. The sponsor stated at hearing that he was saving towards the purchase of a car for the second-named applicant, but acknowledged that he could provide no evidence of any actual savings towards this goal. No other claim was made or evidence provided, and the Tribunal does not accept, that the parties have shared responsibility for the care and support of children. Further, while the Tribunal accepts on the evidence provided that the parties have shared the same residential addresses and lived for periods in the same share houses, where each has contributed to expenses and housework, the parties have not, on their own acknowledgement, ever established a joint, marital household of their own. While the Tribunal accepts that the parties are at the time of decision both living in the applicant’s sister’s house, the Tribunal is not satisfied that they are living there as a married couple. The Tribunal considers that the parties have lived in the same share houses and used the same addresses for the purpose of the visa application. The Tribunal considers, for the further reason discussed below, that the applicant’s sister has been complicit in contriving evidence for the visa application.

    Social aspects of the relationship

30. A statutory declaration was provided signed in March 2016 by a friend of the applicant declaring that the applicant ‘love her husband very much because he’s very good husband’, and that she had been invited ‘to their house for dinner, party’. A letter was provided by an ‘Inala Community House’ community service spokesperson stating that the applicant sought assistance from them with the visa application process, and the family lived nearby. A letter dated 18 June 2019 was provided by a friend of the applicant who stated that they introduced the parties; that they often visit them at ‘their house’; that they observed that the sponsor helps the applicant do the cooking and the gardening; and that they hoped the parties can ‘reside permanently in Australia’ and ‘take care of their children’. The Tribunal places little weight on these declarations because they are brief, lack detail and are unconvincing: the parties for example do not have children together.

31. A large number of photos of the parties’ wedding in Vietnam were provided, including of them worshipping at an ancestral altar and at a reception with family members. Photos taken around the time of the marriage show the parties together sightseeing and eating as a couple and with family members and friends.

32. Several photos were provided taken in Vietnam of the parties together on a double bed, in wedding attire, in intimate poses. When asked who took these photos and why, the applicant stated that her sister took them ‘for a joke’, and that the parties were unaware of her taking them. The Tribunal finds this explanation implausible, for the reason that the parties were obviously posing for the photographs, and would have known another person was in the bedroom with them. The Tribunal accepts that the applicant’s sister took the photos, and considers that the applicant’s sister has been complicit in contriving evidence for the visa application.

33. The Tribunal accepts that family members and friends of the parties recognise that they married, and support the visa application.

34. A number of photos, mostly undated and many with captions in Vietnamese, were provided, showing the parties together and with other people in Australia, including at a formal function. At hearing the applicant explained that she and the sponsor together attended the wedding of a friend, a work colleague of hers. The photos show few other occasions where the parties are socialising as a couple. The applicant stated at hearing that she and the sponsor did not go out much. The Tribunal accepts that the parties have attended some social occasions together, but is not satisfied on the evidence provided that they have planned and undertaken social activities as a married couple.

35. The Tribunal asked the applicant how often she and the sponsor have socialised with the sponsor’s two brothers and sister who live in Australia. The applicant responded that they have visited the sponsor’s siblings in Sydney once every year. She was however unable to say what suburb or suburbs of Sydney they live in. The sponsor subsequently stated that his siblings live in Bankstown, and that the visits occur when his siblings travel to Brisbane, once a year.

1. The Tribunal asked the second-named applicant about his step-father’s brothers and sister, whether they were married and had children. The second-named applicant’s response was vague and hesitant. He claimed he met the sponsor’s brothers when they visited, but couldn’t say whether or not they were married and had children. He stated that he stayed in his room when they visited and didn’t talk to them. The Tribunal found the parties’ claims regarding these family visits weak and unconvincing, and does not accept that the parties have socialised as a married couple with the sponsor’s relatives in Australia.

2. The applicant confirmed at hearing that she has only one relative in Australia, her sister with whom she lives. The Tribunal accepts that the parties have represented themselves to relatives in Vietnam and to people in Australia as being married to each other, but considers that this has been for the purpose of the visa applications. As noted above, the Tribunal considers the applicant’s sister has been complicit in contriving evidence for the visa applications.

   Nature of persons' commitment to each other

3. As noted, a statutory declaration signed on 15 March 2016 was provided by the sponsor whereby he declared ‘we have shared bank account’ and ‘I provide financially for my wife and step-son’. He also declared that he and the applicant were ‘committed to a long and happy life together’. In her statutory declaration of 15 March 2016 the applicant, besides stating ‘we have a shared bank account’ and ‘my husband supports me financially’, also declared ‘I love living in Australia with my husband and my son’. In their joint written statement titled ‘Our Lasting Relationship’ signed on 18 June 2019 the parties describe how their relationship developed from 2012, growing from talking over the phone to meeting in person to getting married in Vietnam. They state that they live together in the applicant’s sister’s house ‘to save rent’.

4. At hearing the applicant advised that she has an income of AUD 400 a week and the sponsor has an income of AUD 570.30 a fortnight. As noted, when asked at hearing why she moved into a share house with the applicant’s sister, the applicant stated that this was for ‘better relationships’ and that she got on well with her sister. Given this admission, and because the parties have both been in receipt of incomes for the duration of the claimed relationship in Australia, the Tribunal does not accept that financial stress is the only reason why the parties are not living in a household of their own. The Tribunal considers they have lived in the same share houses, or used the same share house addresses, for the purpose of the visa application.

5. As noted above, the Tribunal did not find the photos provided convincing evidence of a committed spousal relationship. Besides the photos of the applicant and the sponsor on a bed together, an undated photo was provided of the applicant standing by the sponsor in bed, captioned in English ‘caring for husband while he is sick’. This photo also had the appearance of being contrived for the purpose of the visa application.

6. The Tribunal asked the applicant, following an adjournment during which she consulted with her representative, as noted above, what she knew about the sponsor’s criminal convictions, details of which were covered by the s.376 certificate. The applicant stated ‘there was something about fighting and drug dealing’; that the offences occurred about the time of the Partner (Provisional) (Subclass 309) visa application; and that she was informed about them by ‘her lawyers’. The Tribunal asked the applicant what discussions she had had with the sponsor about his crimes and convictions. She responded that she has never talked to the sponsor about them. The Tribunal finds this statement inconsistent with her claim to have been in a genuine relationship with the sponsor for over six years. The Tribunal considers the sponsor’s criminal record would have been an issue of concern to the applicant, and that she would have sought reassurance about his criminal activities if she was in a genuine relationship with him, particularly considering her son’s young age of 13 years at the time of the visa application. 

7. In a submission received by the Tribunal on 25 June 2019 the parties’ representative claimed that ‘their relationship has rooted since 2012’. The representative acknowledged at hearing however that there ‘is not much current evidence’ of the relationship. The Tribunal accepts that the parties do not speak fluent English and that they have not received large incomes. The Tribunal notes nevertheless that the sponsor has lived in Australia for over 30 years, and the applicant has worked and lived in this country for five years. The parties have both been in receipt of regular incomes and have operated bank accounts. The Tribunal considers that if the parties had been in a genuine spousal relationship for over six years, as claimed, more substantial evidence would exist than has been provided.

8. Evidence was provided in the form of a Medibank letter dated 8 June 2018 that the applicant purchased, on 8 June 2018, private medical insurance for ‘extras’ cover for a family unit comprising herself, the sponsor and her son. The Tribunal considers that this document was relatively easily obtainable and, given the time of purchase of the insurance, was obtained for the purpose of the review.

9. The Tribunal asked the sponsor about his plans for the future. He stated that he is aged and in need of the continuing care of the applicant. He subsequently stated that he plans to obtain employment in the future, so as to better provide for his family. The Tribunal notes that the sponsor has not been in employment since before the applicant’s arrival in Australia. The Tribunal did not find the sponsor a credible witness.

10. The Tribunal asked the second-named applicant about his plans for the future. He stated that he would like his mother to obtain permanent residence so he can finish his studies and get a job. He stated that he plans to remain living in his aunt’s house for the next three years until he qualifies as an electrician, when he will move out.

11. The Tribunal accepts that the parties were married in January 2013; that they have lived in Australia in the same share houses; and that during these times they would have provided each other with a degree of companionship and emotional support. Having considered the evidence and the circumstances of the parties, the Tribunal is of the view that this has been within a contrived marriage-type relationship, rather than a genuine spousal relationship as defined in s.5F of the Act. The Tribunal is not satisfied that the parties see the relationship as long-term.

    Any other circumstances of the relationship

12. The Tribunal asked the applicant at hearing about her plans for the future. She stated that she would like to purchase a restaurant. When questioned further, she stated that this was ‘just a dream’. She then stated that regardless of the review outcome, she has appreciated her time living and working in Australia. She stated that she has appreciated that women are treated with respect and have opportunities open to them in this country.

13. The Tribunal observed the applicant to be sincere in making this statement, but did not find her credible when claiming, in her written evidence and at hearing, to be in a genuine and ongoing spousal relationship with the sponsor. Nor, as noted, did the Tribunal find the sponsor a credible witness. In their undated jointly signed written statement received by the Tribunal on 21 June 2019 the parties stated:

    ‘Daily, my husband and I go to work. When getting home we share all domestic works together, pool money into joint bank account to cover our expenses… We confirm our relationship is continuing happily. We need to be together until one of us passing away from this earth’.

    As noted, the parties acknowledged at hearing that the sponsor has not been in paid employment since the applicant arrived in Australia; they have lived in share houses apart from a period in 2017 when the other tenant or tenants vacated; and they have not and do not ‘pool money into joint bank account to cover our expenses’. The Tribunal is not satisfied that, even if the parties have lived in the same share houses, that they have done so and would continue to do so as a genuine spousal couple.

14. The Tribunal finds, against s.5F(2)(b)-(d), that the parties do not have a mutual commitment to shared life to the exclusion of others; that they are not in a genuine and continuing relationship; and that they do not live together or not separately and apart on a permanent basis.

15. Given these findings the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision

16. Therefore the applicant does not meet cl.100.221(2)(b).

17. No claim was made or information provided that the applicant meets the alternative criteria in cl.100.221(3) and (4) relating to death, family violence, and child exceptions.

18. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

19. As the applicant has not been granted a Subclass 100 visa, the secondary applicant cannot meet cl.100.321(a).

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Partner (Migrant) (Class BC) visas.

    Adrienne Millbank
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).