1411171 (Migration)

[2015] AATA 3007

1411171 (Migration) [2015] AATA 3007 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Linh Kim Le

VISA APPLICANTS:  Mr Manh Chi Vong
Mr Dai Phat Lam

CASE NUMBER:  1411171

DIBP REFERENCE(S):  OSF2013/027327

MEMBER:Mary Urquhart

DATE:2 July 2015

PLACE OF DECISION:  Melbourne

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 and

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 02 July 2015 at 4:47pm

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, Mr Manh Chi Vong and Master Dai Phat Lam applied for the visas on 12 September 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 300.216.

3. The delegate refused to grant the visas on 13 May 2014 on the basis that the first named visa applicant (the applicant) did not satisfy cl.300. 216 of Schedule 2 to the Regulations because the delegate was not satisfied that the relationship between the applicant and the sponsor is genuine and continuing.

4. The review applicant, Ms Linh Kim Le appeared before the Tribunal on 2 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Phuong My Le, Mr Bao Phuc Lam, and Mr Tat Cuong Mau and by telephone the visa applicant Mr Manh Chi Vong.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese, Vietnamese and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent.

6. On 23 June 2015 the Tribunal received a submission addressing the delegate’s decision and further documentation including letters of support, translated and untranslated and further photographs.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Tribunal is satisfied that the parties genuinely intend to live together as spouses.

9. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided by the review applicant and the visa applicant at the hearing.

10. Ms Le claims that she has known the visa applicant since childhood. She became reacquainted with him on a visit to Vietnam when he was visiting her older brother who lived with their mother. Ms Le was staying with her family. They remained in contact with each other after the review applicant returned to Australia. The review applicant returned to Vietnam a number of times and the parties were engaged on 26 February 2013. The review applicant returned to Australia on 10 March 2013. The application was lodged in September 2013. She has returned to Vietnam several times since the parties were engaged in 2013. The visa applicant has also visited Ms Le in Australia.

11. Ms Le was previously married but divorced in November 2010. She has no children. She lives with her niece, the daughter of her older brother, who is in Australia on a student visa.

12. Mr Vong has never married. He has an adoptive son, the secondary applicant, Dai Phat Lam. The Tribunal is satisfied a decision of adoption was made and signed on 28 June 2005 at the People’s Court of District 11, Ho Chi Minh City. The Tribunal notes the consent for child to go abroad documentation.

    Does the visa applicant intend to marry an eligible person?

13. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. Ms Le is an Australian citizen by grant made 2 August 1995. Accordingly, the requirements of cl.300.211 are met.

14. Mr Vong provided a letter from an Authorised Marriage Celebrant Mr Trung Doan, which stated that the intended date of the parties’ marriage was 23 March 2014

15. The Tribunal is satisfied on the basis of the evidence before it, including the letter from the Authorised Marriage Celebrant that at the time of application Mr Vong intended to marry Ms Le who is an Australian citizen. Accordingly, the Tribunal finds that the requirements of cl.300.211 are met.

16. The Tribunal records its satisfaction that Ms Le is not prohibited by subclause (2) of cl.300.212 from being a sponsor and is over the age of 18 years. The Tribunal finds that at the time of application Mr Vong was sponsored by Ms Le. There is no dispute and the Tribunal finds that the parties have met and are known to each other personally. Therefore the requirements of cl.300.212, cl.300.213 and cl.300.214 are met.

    Do the parties genuinely intend to live together?

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. 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

19. The Tribunal notes that as the visa applicant is overseas, it is difficult for the parties’ to own joint assets or share daily household expenses at this stage. Accordingly this factor generally has less weight in the consideration of whether the visa applicant intends to live as the spouse of the review applicant. However, the Tribunal notes the evidence that the visa applicant has contributed financially to Ms Le’s two most recent visits to Vietnam and gives some weight to this factor.

    The nature of the household

20. The review applicant resides in Australia and the visa applicant resides in Vietnam.  As the parties’ are currently unable to share a household, this factor generally has less weight in the consideration of whether the visa applicant intends to live as the spouse of the review applicant.

21. The Tribunal accepts that the review applicant resided with the visa applicant in Vietnam during her visits there in 2014 and April 2015. The Tribunal notes the documentation regarding applications for temporary residence for Ms Le to reside with Mr Vong between 18 July 2014 and 14 August 2014 and 7 April 2015 and 28 April 2015. At the hearing the visa applicant and sponsor provided consistent evidence regarding time spent together.

22. The Tribunal found the parties’ evidence regarding their future plans to be consistent.

    The social aspects of the relationship.

23. The Tribunal has had regard to the evidence provided by the witnesses and the sponsor’s niece regarding the genuineness of their relationship. The Tribunal also notes the photographs of the review applicant and visa applicant together, as well as with family and friends taken during the review applicant’s various trips to Vietnam. The Tribunal accepts on the consistent evidence provided by the parties, supported by the photographic evidence, that their respective family members attended their engagement party, in addition to friends.

24. On the evidence before it, the Tribunal accepts that the parties have undertaken joint activities as a couple when they have been together in Vietnam.

25. The Tribunal has taken into account the large number of letters provided in support whilst noting not all were translated.

26. The Tribunal is satisfied that Ms Le and Mr Vong have represented themselves to their family and friends as an engaged couple.

27. The Tribunal has had regard to the delegate’s concerns regarding the sponsor’s relationship with her ex-husband Mr Teheau Kieu. Dates in relation to their divorce were not always consistent nor was the evidence concerning when it was he left the marital home or how it came to be that the sponsor recorded her former husband as her contact when travelling overseas and why he used his former address as a current address for contact again whilst travelling overseas. Ms Le and her Niece Ms Phuong Le both gave accounts as to why this may have happened. The accounts were not entirely consistent.

28. It was argued that Ms Le is not an educated person and has very limited English despite her work in a plastic factory. Further it was submitted that she is not literate in Vietnamese, English or Cantonese. Her disadvantages in this regard were apparent at the hearing and particularly in her inability to articulate reasons why the application had been refused. Ms Le gave evidence that she has always been provided by a booking agent with departure and arrival cards for international travel. The Tribunal is not satisfied that this is an acceptable explanation. Some things in this application remain unexplainable. However, in reaching its determination, the Tribunal places more weight on the evidence that was consistent and the evidence in support given by the witnesses.

    The nature of the persons’ commitment to each other and whether the relationship is genuine and continuing

29. The Tribunal found the parties’ evidence in the hearing regarding the frequency of their communication since their engagement to be generally consistent.

30. The Tribunal accepts on the evidence before it that Ms Le has travelled to Vietnam since the engagement in Vietnam in February 2013. The Tribunal finds the review applicant’s regular visits demonstrate that the parties are committed to one another as prospective spouses. 

31. Based on all the information before the Tribunal, much of which was not available to the delegate, 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. 

32. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.

    Do the parties continue to meet time of application requirements?

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

34. The Tribunal is satisfied that the visa applicant intends to marry 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; and that the parties genuinely intend to live together as spouses. Accordingly, cl.300.221 is met.

35. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.

    DECISION

36. 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 and

    ·cl.300.221 of Schedule 2 to the Regulations

    Mary Urquhart
    Member