1404921 (Migration)

[2015] AATA 3362

1404921 (Migration) [2015] AATA 3362 (3 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Johnny Nguyen

VISA APPLICANTS:  Ms Thi Minh Ly Le
Mr Minh Tan Dang
Miss Minh Phuong Dang

CASE NUMBER:  1404921

DIBP REFERENCE(S):  OSF2013/02600

MEMBER:Helena Claringbold

DATE:3 September 2015

PLACE OF DECISION:  Sydney

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

Statement made on 03 September 2015 at 12:41pm

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 to refuse to grant Ms Thi Minh Ly Le , Mr Minh Tan Dang and Miss Minh Phuong Dang , the visa applicants, Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. Ms Le was born on 24 March 1971, Mr Dang was born on 19 June 2000 and Ms Dang was born on 23 January 2002.   They are nationals of Vietnam.  They applied for the visas on 12 March 2013, on the basis of her relationship with Mr Johnny Nguyen (AKA as Ba Trieu Nguyen refer: D1 f51)) who was born on 20 March 1957.  He is an Australian citizen, born in Vietnam (refer: D1 f49). 

3. The delegate refused to grant the visas on 23 January 2014, on the basis that the visa applicants did not satisfy cl.300.216 and cl.300.221 of Schedule 2 to the Migration Regulations 1994 because the delegate was not satisfied that Ms Le and Mr Nguyen genuinely intended to live together as spouses.

4. Mr Nguyen requested review of the delegate’s decision on 12 March 2014 and provided the Tribunal with a copy of the delegate’s decision record.  He appeared before the Tribunal on 11 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Le.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by his registered migration agent.   .

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence in the Departmental case file OSF2013/026000, folios numbered 1-176, and the Tribunal’s case file 1404921, folios numbered 1-308, and the oral evidence given by both parties at the Tribunal’s hearing and the post hearing submission.

7. The issue in the present case is whether at time of application and at time of decision Ms Le and Mr Nguyen genuinely intend to marry within the visa validity period and genuinely intend to live together as spouses.

   What is the background of this case based on all the evidence before the Tribunal?

8. Ms Le is 44 years old.  She currently resides in Vietnam. In 1998 she married Mr Ngoc Tuan Dang.  On 30 October 2012 the marriage ended in divorce.  There are two children from this marriage who are secondary applicants.

9. Mr Dang is 15 years old and Miss Dang is 13 years old.  They are nationals of Vietnam.

10. Mr Nguyen is 58 years old.  He currently resides in Australia.  He has been previously married on two occasions. His first marriage to Ms Phi Thi Thuy Hien began in 1980 and ended in divorce in 1997.  There are 7 children from this marriage.  His second marriage to Ms Thi Thanh Tuyen Tu Yen began on 17 May 2006 and ended in divorce on 28 June 2009.

11. Ms Le and Mr Nguyen make the following claims about the inception and development of their relationship.  On 1 June 2012, Ms Le and Mr Nguyen met in Ho Chi Minh City.  At that time Mr Nguyen was having a haircut at Ms Le’s sister’s hair salon.  Ms Le visited the salon with her children on the same day and the parties met.  The parties spent time together and when Mr Nguyen returned to Australia they remained in contact.  On 19 July 2012, Ms Le visited Australia and was treated as Mr Nguyen’s guest. On 31 July 2012, Mr Nguyen returned to Vietnam with Ms Le.  The parties went to Cau Mau to attend his father’s funeral.  They travelled to Dong Nai, Nha Trang, Do Lat, Hue, and Can Tho.  On 20 October 2012, Mr Nguyen returned to Australia and the parties continued to communicate with each other.  On 30 October 2012, Ms Le divorced her ex-husband.  On 30 December 2012, Mr Nguyen proposed to Ms Le and she accepted his proposal.  On 17 January 2013, Mr Nguyen’s mother travelled to Vietnam.  On 28 January 2013, the parties became engaged.  They provided a notice of intention to marry on 20 October 2013 (refer: D1 f54).

12. 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 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.300.211, cl.300.213, cl. 300.214, cl.300.215 and cl.300.216.

    Is the applicant the prospective partner of an eligible person? Clause 300.211         

13. The Tribunal accepts that Ms Le intended to marry Mr Nguyen, who is an Australian citizen (refer: D1 f49). Accordingly, the requirements of cl.300.211 are met at time of application.

    Is the applicant sponsored? Clause 300.213

14. The Tribunal accepts that Ms Le is sponsored by Mr Nguyen and she has turned 18 (refer: D1 f23).  The Tribunal is satisfied that Mr Nguyen was born on 20 March 1957 (refer:  D1 f52). Therefore, cl.300.213 is satisfied.

    Have the applicants met in person and are they known to each other personally? Clause 300.214

15. On the basis of the oral and documentary evidence, including photographs and other documents, the Tribunal is satisfied that Mr Nguyen and Ms Le have met and are known to each other and have been together when Mr Nguyen returned to Vietnam.   Accordingly, the Tribunal finds that the requirements of cl.300.214 were met at time of application and continue to be met at time of decision.

    Do the parties genuinely intend to marry? Clause 300.215 (a) and (b)

16. As a result of the oral and documentary evidence, including a Notice of Intended Marriage dated to take place on 20 October 2013 (refer: D1 f54), the Tribunal is satisfied at the time of application, the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a). The Tribunal is also satisfied that the parties’ marriage would have and will take place within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met at time of application and continue to be met at time of decision.

    Do the parties genuinely intend to live together? Clause 300.216

17. 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.

18. The Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. On these aspects the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows.

19. The parties provided inconsistent evidence about financial matters.  Mr Nguyen’s lack of knowledge about Ms Le’s employment and her financial situation and about the purpose and use of the money that he sent to Ms Le led the Tribunal to question the parties sharing of everyday matters with each other.   

20. The parties claim to have become engaged on 28 January 2013 in Cai Mau.  They have provided photographic evidence of them at various locations and evidence that they have communicated with each other since their meeting in June 2012. 

21. The parties gave evidence that they have lived together in hotels and at Ms Le’s brother’s home.  The Tribunal accepts that the parties have spent time in each other’s company.

22. The parties found it difficult to articulate their plans for the future to the Tribunal.  Mr Nguyen felt that the parties would support each other and stated that he needed Ms Le’s assistance to care for his mother, who is 104 years old.  He said their long term plan is to have a happy life.  Ms Le’s agreed that she would live with and assist Mr Nguyen but as she was younger than him would like to work in an area similar to that of her current work.  The parties have not satisfied the Tribunal that they have discussed and planned for their future together.

23. Ms Le and Mr Nguyen provided inconsistent evidence to the Tribunal about their financial circumstances and about Ms Le’s employment.  The Tribunal put this evidence to Mr Nguyen and advised him that the information may be reason or part of the reason for affirming the decision.  Mr Nguyen was invited to comment on or respond to the information and advised that he could seek additional time to do so.  Mr Nguyen sought and was granted additional time to respond.

24. With respect to Ms Le’s evidence that she owned the following financial assets; a house valued at $50,000; farming land not yet registered by the Vietnamese government valued at 500 Million Vietnamese Dong; land and 6 telecom stations contracted at $75,000 each, this evidence was put to Mr Nguyen as it was inconsistent with Mr Nguyen’s evidence that Ms Le owned a house valued at 200,000-300,000 Vietnamese Dong; land purchase and a signed contract to build a column valued at 600,000-700,000 Vietnamese Dong.  The Tribunal has considered the post Tribunal response.  The parties have not satisfied the Tribunal that they have knowledge of their affairs commensurate with a couple in a relationship since 2012. On 18 August 2015, Mr Nguyen’s migration agent provided an email, translated into English, clarifying the land ownership and the number of agreements and states that the financial situation involving the ownership and use of land is complex and as such the sponsor could not be expected to have an intimate and detailed knowledge.  The parties have not satisfied the Tribunal that they have knowledge of their day to day matters.

25. With respect to Ms Le’s evidence that Mr Nguyen had sent her separate money transactions to a value of $10,000 and that the money is there for whatever Mr Nguyen wants; that he sends the money because she is his wife and that she keeps the money for him and when he needs it she will send it to him.  This evidence was put to Mr Nguyen as it was inconsistent with Mr Nguyen’s evidence that he has sent between $8,000 to $9,000 which he has provided from his $800 per fortnight pension, as payment in Vietnam is very slow and Mr Le sometimes has to wait between 6 to 8 months to be paid and the money also assists the children’s education.  On 18 August 2015, Mr Nguyen’s migration agent responded that the fact that the sponsor assumed that the funds forwarded to the applicant “were not being used for the support of her children, their education needs is not an issue of substance, as the sponsor was saving these funds in order for them to be of assistance at a future date”.   The Tribunal is not satisfied that this response clarifies the contrary evidence provided by Ms Le and Mr Nguyen.

26. With respect to Ms Le’s evidence that she has worked for the same company for twenty years, working 8 hours a day staring at 7.30am until 11.30am and 1.30pm until 4.30pm.  Initially she was a customer liaison officer however later became involved in the technical aspect of the company and her salary is contract based and is between 40 to 50 Million Vietnamese Dong.  This evidence was put to Mr Nguyen as it is inconsistent with Mr Nguyen’s evidence that Ms Le has worked with the company for 4 to 5 years that she works Monday to Friday but not any specific time and attends work when she has time.  That she earns between 20-25 million Vietnamese Dong per month over 4 stations.  On 18 August 2015, Mr Nguyen’s migration agent provided an email, translated into English, clarifying her changing roles in the telecommunications indicating her need to attend her workplace on occasions at odd hours.   The parties have not satisfied the Tribunal that they have knowledge of their day to day matters.

27. Also on 18 August 2015, Mr Nguyen’s migration agent responded that the issue relating to the variation of information is not critical in determining whether there is an ongoing relationship. The parties have not satisfied the Tribunal that they have agreed knowledge of their affairs commensurate with a couple in a relationship since 2012.

28. Additionally, the Tribunal asked Mr Nguyen about evidence in the delegate’s decision record that the parties met on 1 June 2012, however Ms Le paid her agent on 29 May 2012 for a Tourist visa applicant for Australia and that the application was lodged on 5 June 2012.  That she was sponsored by Mr Tan Phat Nguyen, who she claimed is her niece’s partner and stated that she would be staying with him in Sydney.  Conversely, when she arrived in Australia, she flew directly to Brisbane and spent her time with Mr Nguyen, the sponsor at his home.  Mr Nguyen told the Tribunal that he had not met Mr Tan Phat Nguyen and that Ms Le’s trip was organised outside of the parties relationship, however when the parties met, Ms Le decided that she wanted to see Mr Nguyen to ensure he was single and on her arrival they  decided they would live together.  Mr Nguyen has not satisfied the Tribunal that these circumstances are plausible.

29. The Tribunal has considered the evidence both individually and as a whole.  The parties have not satisfied the Tribunal that the parties knowledge of their personal circumstances is commensurate with that of a couple who have known each other for over 3 years and have communicated with each other over that time and have been in each other’s company on many occasions and claim to have committed to a future life and to have a genuine intention to live together as spouses.

30. The parties have not satisfied the Tribunal that at the time of application the parties did have a genuine intention to live together as spouses, and therefore cl.300.216 is not met.

    Do the parties continue to meet time of application requirements?

31. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, cl.300.213, cl.300.214, cl.300.215 and cl.300.216 and therefore cl.300.221 is met. 

32. The Tribunal is satisfied that Ms Le intends to marry Mr Nguyen, who is an Australian citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period.

33. The Tribunal is not satisfied that the parties genuinely intend to live together as spouses.  Therefore cl.300.216 is not met.  Accordingly, cl.300.221 is not met at time of decision.

34. For the reasons above, the Tribunal finds the visa applicants do not satisfy the criteria for the grant of the visas.

    DECISION

35. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    Helena Claringbold
    Member