1319089 (Migration)

[2015] AATA 3725

1319089 (Migration) [2015] AATA 3725 (25 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Clint Henry Barker

VISA APPLICANTS:  Ms My Kim Phan
Mr Thanh Dat Guyen

CASE NUMBER:  1319089

DIBP REFERENCE(S):  OSF2013/026976

MEMBER:Michael Cooke

DATE:25 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.216 of Schedule 2 to the Regulations

The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the second named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.311 of Schedule 2 to the Regulations

Statement made on 25 November 2015 at 4:21pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 18 March 2013. 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 (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. Relevantly to this matter the primary criteria include cl.300.216 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visas on 31 October 2013 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate’s finding was that the parties did not intend to live together as spouses.

4. The review applicant appeared before the Tribunal on 30 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Ms Phan and a friend of the sponsor Ms Le. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the parties intend to live together as spouses.

   Do the parties genuinely intend to live together?

8. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act; there must be a mutual commitment to a shared life as husband and wife 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 considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). Whilst 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.

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

   Financial aspects of the relationship

10. The applicant was asked in the hearing if he had sent the applicant any money as they lived in different countries. He indicated that he did not have a lot of money to remit to the applicant but informed that it was $AUD500 in total. The Tribunal accepts that he has sent this money to the applicant and as the parties live in different countries it is difficult to engage in financial pooling.

    Nature of household, if any

11. The Tribunal accepts that applicant and sponsor live in different countries so they cannot form a proper household. Nevertheless the Tribunal accepts that their claim to have lived together for some days on the sponsor’s sole trip to Vietnam based on the sponsor’s household registration..

    Social aspects of the relationship

12. The Tribunal observes that the applicant and sponsor do not speak each other's language. The sponsor and applicant have suggested they have communicated through hand gestures and the assistance of friends and dictionaries. The applicant claimed she has attempted to learn English to assist with communication. The sponsor informed in the Tribunal that he and the applicant ‘had a bit of a giggle' trying to communicate. The Tribunal observed little evidence of recent communication and asked the sponsor in the hearing why this happened. He said they do not communicate much at present as they had 'lost hope' with the lengthy processing of the visa and Tribunal review.

13. The Department file indicates that some photos of the parties had been submitted in different settings including with the applicant's family members. The Tribunal is unaware whether the sponsor's children are accepting of the new relationship as they do not live with the sponsor. He has no knowledge of their whereabouts - he informed the Department. For his part he has claimed that the applicant looked after him In Vietnam. He was unused to such care and he got on well with her children. The Tribunal accepts that the parties seemed to have got on well in Vietnam. The sponsor seems not to have a deep knowledge of the applicant's past and a rather simplistic desire to have a wife and family life. Nevertheless they seem to enjoy each other's company despite their linguistic difficulties.

    The parties’ commitment to each other

14. The delegate was concerned with the way in which the sponsor proposed to the applicant without any knowledge of her language or culture. He had been introduced to her through his friendship with the Vietnamese run butchery people who he visits for work. The applicant, for her part, indicated in the hearing she was astounded at his quick proposal. The Tribunal noticed that the parties were introduced through their witness, Ms Le, and the applicant is the niece of the butchery owner. The parties held no traditional Vietnamese engagement ceremony for instance which is a major event in Vietnamese culture indicating family acceptance of a relationship. Nevertheless they did have some formal celebration of the event. In viewing this, the Tribunal is aware that neither the applicant nor the sponsor is a wealthy person and the sponsor has not been able to afford to visit the applicant regularly in Vietnam.

15. The Tribunal is satisfied despite their short time together in Vietnam that the relationship is socially accepted by the applicant's family. The sponsor was plain in answering that he wanted a wife to look after him in middle age and afterwards. He insisted that the applicant treated him well and that was what he wanted in a wife at his age - especially after a broken relationship. From observing the sponsor in the hearing he appeared to have a considered commitment towards the applicant.

16. The Tribunal has listened to both parties and is convinced of the parties' commitment to each other. The applicant, it is true, had not met the applicant in person until 28 July 2012 and then proposed marriage on 30 July 2012. He himself has indicated in the hearing that the relationship has suffered from frustration at the length of time the matter has taken to be resolved. He said that that they only talk to each other every few weeks. This is not made easy by their language difficulties. However, the key issue in the present case is whether the parties intend to live together as spouses.

17. The Tribunal finds that at the time of application the parties did have a genuine intention to live together as spouses and, therefore, cl.300.216 is met.

18. For the reasons above, the Tribunal finds the visa applicant does satisfy the criteria for the grant of the visa.

19. The Tribunal is informed that the secondary applicant is a student according to his official Vietnamese Curriculum Vitae (D1, f.78).

20. The Tribunal is satisfied that he is a member of the family unit of the primary visa applicant and, therefore, meets cl.300.311 of the Regulations.

    DECISION

21. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300.216 of Schedule 2 to the Regulations

22. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the second named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300.311 of Schedule 2 to the Regulations

    Michael Cooke
    Member