1412639 (Migration)

[2015] AATA 3540

1412639 (Migration) [2015] AATA 3540 (26 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hong Ly

VISA APPLICANT:  Mr Chantha Seng

CASE NUMBER:  1412639

DIBP REFERENCE(S):  OSF2013/089148

MEMBER:Kira Raif

DATE:26 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 26 October 2015 at 3:25pm

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 the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Cambodia, born in January 1976. He applied for the visa on 24 June 2013. The delegate refused to grant the visa on 3 July 2014 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the parties genuinely intend to live together as spouses. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 26 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The review applicant was represented in relation to the review by her registered migration agent.

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

   Relevant law

5. 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). Relevantly to this matter the primary criteria include cl. 300.216.

6. 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.

7. 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. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand 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.

   Do the parties genuinely intend to live together?

8. 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.

9. The parties claim to have met in April 2012 in Vietnam and to have developed feelings for each other within a few days of their initial meeting. The visa applicant proposed in December 2012 and the formal engagement was held in June 2013. The Tribunal accepts that there is a significant amount of evidence regarding the social recognition of the relationship, including ample photographic evidence, in addition to written statements from third parties that had been provided to the delegate and the Tribunal. The Tribunal accepts that about 100 people attended the engagement. The Tribunal accepts that family and friends are aware of the relationship.

10. Despite that, the Tribunal has some concerns about the social aspects of the relationship. The review applicant informed the Tribunal she met the visa applicant’s friends at the engagement but not during any of her four visits to Cambodia. The parties were able to name each other’s friends, even though they had not communicated with them and had little communication with them. Both parties also informed the Tribunal there is very limited contact between the visa applicant and the review applicant’s family in New Zealand. The visa applicant met the sponsor’s parents twice, once during the engagement and once when the review applicant’s mother visited Cambodia to sell the property. They had no other contact, claiming the review applicant’s parents are too busy to speak on the phone. The visa applicant also had very little contact with the review applicant’s siblings. The Tribunal is concerned that the parties had made minimal effort to socialise with family members.

11. The parties met in 2012 during the review applicant’s trip to Vietnam and the review applicant had since made four trips to Cambodia. The Tribunal accepts that during these trips the parties lived together and travelled together. The Tribunal accepts they have established a joint household on these occasions.

12. The Tribunal has considered the financial aspects of the relationship. The evidence before the Tribunal indicates that the visa applicant sent money to the sponsor on four occasions, with the first transfer in July 2014. Both parties said that amount was to assist the review applicant with the visa application. There was some confusion as to what the other funds were used for but the Tribunal accepts that money was sent on four occasions. However, the Tribunal is concerned that such transfers occurred only after the primary application was refused. According to the primary decision record, part of the delegate’s concerns was the absence of financial transfers. The Tribunal is concerned that the decision to transfer money was made in response to such concerns and not because it genuinely reflects the visa applicant’s desire to financially assist the review applicant.

13. The Tribunal also notes that a number of joint receipts were provided with the primary application. One receipt for the purchase of jewellery is in joint names and was issued in Australia in May 2013. The Tribunal is mindful that the visa applicant was never in Australia. He had not yet sent money to the review applicant. There does not appear to be any good reason for the visa applicant’s name to appear on a receipt issued in Australia. Putting his name on that receipt does not show any form of financial commitment. The review applicant explained to the Tribunal that she put the visa applicant’s name on the receipt in order to show evidence to Immigration. The Tribunal is concerned that the parties created or obtained documentary evidence which they thought was required by Immigration specifically for the purpose of the visa application. The Tribunal is not convinced that such evidence genuinely reflects the couple’s circumstances, as opposed to their willingness to produce evidence for visa purposes. The Tribunal does not consider such evidence to be reliable.

14. The Tribunal has considered the parties’ commitment to the relationship and whether they genuinely intend to live together as spouses. The Tribunal has a number of concerns about their evidence with respect to this consideration.

15. Firstly, the Tribunal is concerned by the very short period of time for the breakdown of the review applicant’s previous marriage following the grant of the permanent residence to her. The review applicant’s evidence to the Tribunal is that she was granted the permanent visa in March 2011 and the relationship broke down around August 2011. The review applicant informed the Tribunal the break down of the relationship had nothing to do with the grant of the visa but the timing of it is of concern to the Tribunal.

16. Secondly, the Tribunal has formed the view that the couple’s description of how their relationship developed was somewhat implausible. They claim to have met for the first time during the tour to Vietnam in April 2012. They claim that almost immediately they fell in love, developed feelings for each other and discussed such feelings with each other and according to the review applicant’s oral evidence to the Tribunal, within five days of meeting each other, she decided to introduce the visa applicant to her family as someone she loved. In the Tribunal’s view, the haste with which the relationship developed is inexplicable. The Tribunal does not consider it plausible the partners could have developed such feelings for each other and discussed their feelings for each other less than one week after the first meeting.

17. The Tribunal questioned the review applicant about their plans for the future. The Tribunal found her answers to be vague. She suggested the visa applicant would find employment. She could not state what kind of employment he may be able to engage in. The Tribunal acknowledges that it may not be possible to plan such matters with any precision but in the Tribunal’s view, the vagueness of the plans is not consistent with the couple’s desire to live tother as spouses.

18. Thirdly, there were a number of inconsistencies in the parties’ oral evidence that are of concern to the Tribunal. For example,

    a.The review applicant said they plan for one of the visa applicant’s sisters to attend the wedding in Australia. The visa applicant said his siblings are too busy and only his parents would attend. The review applicant informed the Tribunal that this was only the discussion she had with the visa applicant and they do not know if the family could get the visas. However, the Tribunal has not questioned the parties about the possibilities of getting the visas. The Tribunal’s questions were about their plans.

    b.The review applicant informed the Tribunal that when she introduced the visa applicant to her family after the trip to Vietnam, she told the family that they loved each other and had feelings for each other. The visa applicant said he was introduced as someone she met on a tour and nothing more. He said it was not culturally acceptable to talk about love. The review applicant subsequently explained to the Tribunal that in their culture, she could not mention the love and could not introduce him as the boyfriend but because she brought him to meet her family, it was taken that they were in love. However, the Tribunal’s questions were not about cultural norms and modes of behaviour. The Tribunal’s questions were specifically about how the visa applicant was introduced by the review applicant to her family and she did suggest she introduced him as someone with whom she wanted to have a relationship.

    c.The review applicant informed the Tribunal that after she returned to Australia from Cambodia in April 2012, she and the visa applicant used Viber and VChat to communicate with each other and there was no other means of communication. The visa applicant said they used the telephone and Viber and nothing else. When asked whether they used VChat, the visa applicant said they did use it infrequently. The review applicant later explained that VChat was hard to use to they used predominantly VIber and the phone. In the Tribunal’s view, that contradicts her initial evidence.

    d.The review applicant explained to the Tribunal that the engagement date was chosen because she could take time off work in that period. The Tribunal noted that it is culturally common to pick a ‘suitable’ or a lucky date but she said she picked the date because she could not have leave at another time. The visa applicant said they did pick the lucky date for their engagement and he made no mention of the review applicant’s work commitments. The review applicant subsequently informed the Tribunal that they did pick a lucky date which coincided with the time she could get leave from work. That is not consistent with her earlier evidence that the date was picked when she could get leave from work. The review applicant also informed the Tribunal she did not inform the visa applicant about her leave limits.

    e.The review applicant informed the Tribunal they paid $2000 for the engagement. She said they each paid $1000. The visa applicant said he paid $2000 himself but they shared money on other occasions because the review applicant travelled many times and had expenses. The Tribunal notes that its question was specifically about the engagement expenses and not other expenses. The review applicant then explained that she gave $1000 to the visa applicant for the engagement but she did not know if he used the money for the engagement or for other matters. The Tribunal is concerned that the parties had not discussed their financial arrangements.

19. The Tribunal acknowledges that many of these inconsistencies are insignificant and none of these are determinative. However, the existence of such inconsistences supports the Tribunal’s view that the parties had simply memorised much of the information about each other for the benefit of this visa application. The Tribunal is also concerned that some of the documentary evidence was specifically prepared for the purpose of the visa application. The Tribunal does not consider such evidence reflects the parties’ circumstances but merely their desire for a successful migration outcome.

20. The Tribunal has considered the totality of the evidence before it. The Tribunal accepts that a number of factors point to the parties’ commitment to each other and their desire to live together as spouses. The Tribunal places significant weight on the length of the relationship and the multiple visits the review applicant made to Cambodia and the joint activities undertaken by the parties. Against these considerations, the Tribunal notes its concerns about the very quick development of the relationship, the very limited contact the partners have with family members and the couple’s claim that at least some of their evidence was obtained (and, in the Tribunal’s view, information about each other memorised) for the purpose of this application. Having considered these circumstances as a whole, the Tribunal is not satisfied that the parties are genuinely committed to a relationship. The Tribunal is not satisfied that the parties genuinely intend to live together as spouses. The Tribunal is not satisfied the visa applicant meets cl. 300.216.

    Conclusion

21. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

    Kira Raif
    Senior Member