Vu v Minister for Immigration and Multicultural and Indigenous Affairs

Background 5 The applicant entered Australia on a visitor's visa on 22 September 1999. 6 The applicant married Truong Nga Thi on 27 October 1999. On 13 December 1999 the applicant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) visa (Class BS). He included in the application his son who was then resident in Australia on a student visa. I will adopt the nomenclature of the Tribunal by referring to the applicant as the 'visa applicant' and his wife as the 'review applicant'. In the application the visa applicant said that his previous marriage had ended in divorce on 24 November 1995. 7 In a declaration in support of the visa application the visa applicant stated that he had first met the review applicant on 9 January 1995 at Saigon airport. His daughter had travelled on the same aeroplane from Australia as the review applicant and his daughter introduced the review applicant to him at the airport. At that time the review applicant was an Australian citizen and was visiting Vietnam. The visa applicant and the review applicant subsequently socialised during the review applicant's stay in Vietnam. Thereafter, the visa applicant and review applicant saw each other on several occasions when the review applicant returned to Vietnam for visits in 1998 and 1999. The visa applicant said that since his arrival in Australia he had resided with the review applicant. He said that he fell in love with the review applicant and they were married on 27 October 1999. 8 The review applicant confirmed the events described in the visa applicant's declaration in support of the visa application. 9 On 12 June 2002 two officers from the bona fides unit office of the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') in Brisbane attended at 1/73 Koala Street, Moorooka - the address which the visa applicant had given as being the residence of the visa and review applicants. One of the officers made a note of the events that transpired. The following account is recorded in the note. 10 The purpose of the visit by the departmental officers was to speak to the visa and review applicants to assess whether they were residing together as spouses. On arrival at the unit at Koala Street the departmental officers were greeted by the visa applicant's son. Also present in the unit was the visa applicant. The visa applicant's son spoke quite good English whilst the visa applicant spoke almost no English. The visa applicant's son said that only the two of them were present in the unit. The son said that the home was owned by his brother, Tr. The son said that the review applicant had moved two or three weeks ago to her daughter's house but comes back to Koala Street 'one or two days a week to cook'. The son said that the name of the daughter with whom the review applicant was staying was Do Nga Huynh. The son asked the visa applicant for the address and the visa applicant wrote it down as '22 Logan, Ganes' [sic]. An officer ascertained this to be 22 Logan Road, Gailes. The son said that he and his father were the people who actually lived at 1/73 Koala Street, Moorooka. The officers inspected the unit. The unit comprised two bedrooms one a little bigger than the other, the small bedroom contained fluffy toys and trinkets on the desk. The son said that the trinkets and fluffy toys belonged to his sister who was staying there on a student visa. The sister had gone back to Vietnam at the time of the visit. There were also men's clothes in the room. These clothes were identified as belonging to the father, the visa applicant. The clothing in the hanging space was female clothing of a type a younger woman would be expected to wear. The son said that these clothes belonged to his sister. The son pointed to some female clothing that was folded and stored on the floor of the wardrobe, perhaps a dozen items. The son said that these belonged to his stepmother, the review applicant. 11 The other bedroom was large and contained a double bed made up with one pillow and a single bed mattress unmade lying on the floor. There was a computer and study material. The only clothes in this room were male clothes. The son said that these were his and some of his fathers. There were no items of female clothing or other female items in this room. 12 The son was again asked where his stepmother, the review applicant, was living. He said that she was staying with her daughter, Do, at Logan Road because the daughter's child was sick. He said that she would come back to live at Koala Street when the child was better. One of the departmental officers obtained the telephone number of the daughter, Do, from the son. When the officer telephoned that number, the person on the telephone confirmed that she was in fact the daughter, Do Nga Huynh. The officer asked her where her mother, Mrs Troung Nga Thi, lived. She said that 'she lives with me now'. When asked when the mother moved in with her, she said 'a few months ago'. The daughter then said 'I don't talk to my stepfather and my stepbrother'. 13 Later the daughter retracted what she had first said and said instead that her mother and stepfather were previously living with her but they moved to Koala Street a few months ago. She said that they had moved before Christmas. She said that she had been away and last saw her mother last week. The daughter said that she did not have a sick child at the moment. The daughter said that the officer should call her mother at their home in Koala Street. The officer said that he was calling from that address and her mother was not there. The daughter then said that her mother could be with one of her many other children. The daughter then asked if she could speak to her 'stepbrother'. The officer gave the telephone to the son. After a few minutes speaking in Vietnamese, the daughter said that there had been a mistake. The mother was staying at another daughter's house looking after a sick child. The officer asked the daughter for the name of the other daughter and it was given as Phan Dung. 14 The officer then rang the other daughter who said she was Phan Dung. He asked if her mother, Mrs Truong Nga Thi was living with her or if she was there then. Phan Dung corrected the officer saying that Mrs Truong was her 'mother in law' not her mother. She then said that her mother in law lives at '22 Logan Road, Gailes with her daughter'. The officer then asked for the name of the daughter with whom her mother in law lived. She said: 'Do Huynh'. The officer asked how long Mrs Truong had been living at the Logan Road address and she said 'several months'. The officer asked the daughter in law if her mother in law lived at Moorooka. The daughter in law said 'No'. 15 The officer concluded that he was not satisfied that the review applicant lived at 1/73 Koala Street, Moorooka. The officer said: '… The few items of clothing are neatly folded and stored at the bottom floor of the wardrobe, while the only other female clothes, belonging to the applicant's daughter, occupy the hanging space, even though this daughter is overseas. There were no other items in the house to suggest that the sponsor lives there or has been living there at any stage. The inconsistent advice given by the [son], the sponsor's daughter, Do and the sponsor's daughter in law, Phan indicate to me that the sponsor is actually living with Do at 22 Logan Road, Gailes on an indefinite basis, and has been living there for several months at least.' 16 The officer invited the visa applicant to attend an interview the next day, 13 June 2002. The visa applicant attended that interview. There was an interpreter present at that interview. Statutory background 17 The relevant criteria for the Subclass 820 visa is found in par 820.211(2) of Schedule 2 of the Migration Regulations 1994 (Cth) ('the Regulations') which reads: '(2) An applicant meets the requirements of this subclause if: (a) the applicant is the spouse of a person who: (i) is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen'; and (ii) …' 18 The provisions regarding the definition of spouse are found in reg 1.15A of the Regulations which as relevant state: '(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are: (a) in a married relationship, as described in subregulation (1A); or (b) … (1A) Persons are in a married relationship if: (a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and (b) the Minister is satisfied that: (i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them is genuine and continuing; and (iii) they: (A) live together; or (B) do not live separately and apart on a permanent basis. (2) … (3) In forming an opinion whether 2 persons are in a married relationship…in relation to an application for: (ab) a Special Eligibility (Residence) (Class AO) visa; or (ad) a Partner (Migrant) (Class BC) visa; or (ae) a Partner (Provisional) (Class UF) visa; or (af) a Partner (Residence) (Class BS) visa; or (ag) a Partner (Temporary) (Class UK) visa; the Minister must have regard to all of the circumstances of the relationship, including in particular: (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 party to the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day‑to‑day household expenses; (b) the nature of the household, including: (i) any joint responsibility for care and support of children, if any; and (ii) the parties' living arrangements; and (iii) any sharing of responsibility for housework; (c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other; (ii) the opinion of the person's friends and acquaintances about the nature of the relationship; and (iii) any basis on which the persons plan and undertake joint social activities; (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) … (5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.' The delegate's decision 19 On 13 June 2002, the delegate refused the grant of a Partner (Temporary) (Class UK) Subclass 820 visa and a Partner (Residence) (Class BS) Subclass 801 visa to the visa applicant and the visa applicant's son. The delegate produced a record of decision. 20 In the record of decision the delegate stated that the visa applicant arrived in Australia on a Subclass 676 visa on 22 September 1999. In his visa application the visa applicant indicated he was still married in Vietnam and that his purpose in visiting Australia was to attend the graduation in Australia of his daughter Vu Thi Thu Huyen, who was in Australia on a student visa. The delegate found that this information was misleading and that he had strong doubts as to the integrity of the statement the visa applicant made in his visitor's application. 21 The delegate found that as a result of the departmental officers' home visit, the review applicant lived with her daughter in Gailes and had done so for at least several months. He also said that the comments made by the visa applicant's son and the review applicant's daughter during the home visit indicated to him a propensity to provide false and misleading information and present a façade of living together in order to achieve their desired outcome in the residence application and a collusion between the visa applicant, the review applicant and at least one of the review applicant's children to achieve that outcome. 22 The delegate concluded that on the basis of the evidence before him he found that the visa and review applicants did not live together as spouses nor did they share the attributes of a spouse relationship as specified in reg 1.15A of the Regulations. 23 The delegate found that the visa applicant did not meet the criteria for a grant of a Partner (Temporary) (Class UK) Subclass 820 visa and as such, failed also to meet the criteria for the grant of a Partner (Residence) visa (Class BS) Subclass 801 visa. Proceedings before the Tribunal 24 On 19 June 2002, the visa applicant lodged a review of the delegate's decision. In a letter to the Tribunal he said that his wife, the review applicant, had three daughters living in Queensland at the time of the departmental officers' visit to the unit at Koala Street. These were: Do Tri, Do Nga Bach and Do Nga Huynh. During that visit one of the officers had spoken to Do Nga Huynh, but his wife was then staying with another daughter, Do Nga Bach whose nephew was sick, and his wife had gone there to help 'during night time'. The visa applicant said that he did not know that his wife was staying at her second daughter's house because she had not told him. 25 On 30 April 2003, the Tribunal wrote to the visa applicant inviting him to provide the following additional information: 'Evidence that you are in a genuine and continuing relationship with your wife, including evidence as required by reg 1.15A in relation to the financial aspects, social aspects, nature of the relationship, genuine commitment to the relationship and nature of the household. … Further evidence in regard to the delegate's suggestion in the decision record that you and your wife are not in a genuine relationship as a result of inconsistent and misleading information provided to the Department.'

At a glance

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Judgment (8 paragraphs)

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