1414200 (Migration)
[2015] AATA 3470
•8 October 2015
1414200 (Migration) [2015] AATA 3470 (8 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Van Tuan Dam
VISA APPLICANT: Ms Thi Hoai Trang Dang
CASE NUMBER: 1414200
DIBP REFERENCE(S): OSF2014025806
MEMBER:David Barker
DATE:8 October 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 visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
· cl.300.211 of Schedule 2 to the Regulations
· cl.300.214 of Schedule 2 to the Regulations;
· cl.300.215 of Schedule 2 to the Regulations
· cl.300.216 of Schedule 2 to the Regulations; and
· cl.300.221 of Schedule 2 to the Regulations
Statement made on 08 October 2015 at 9:27am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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).
The visa applicant applied for the visa on 20 February 2014. 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 whether the parties intend to marry and live together as spouses, both at the time of application and at the time of decision.
The delegate refused to grant the visa on 22 July 2014 on the basis that the visa applicant did not satisfy cl.300.216, cl.300.214(2) and cl300.221 of Schedule 2 to the Regulations because they were not satisfied that the parties intend to live together as spouses.
The review applicant appeared before the Tribunal on 10 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Hein Nguyen, Ms Chau Duong Huyen and the visa applicant. 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, Mr Vuong Nguyen.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The visa applicant is a Vietnamese national and was born on 12 February 1992. Her parents are divorced and her father has remarried. She has two siblings. The visa applicant reports she has had no previous marriages or de facto relationships.
The review applicant was born on 17 December 1994 in Hong Kong. He is of Vietnamese descent and arrived in Australia, along with his family, in June 1995. The review applicant was granted Australian citizenship on 29 August 1999. He resides in Newtown, NSW. The review applicant has three siblings. Both of his parents are alive but are divorced. All members of his immediate family reside in Australia. He has had no previous marriages or de facto relationships.
The parties’ report that were introduced in January 2013 by a woman, Ms Huyen, who was a mutual friend of their mother’s. They report they had initial contact over the phone, Facebook and other digital mediums, with their first direct contact occurring on 26 February 2013 during a trip the review applicant made to Vietnam.
The review and visa applicants provided documents to the Department in support of the application including but not limited to the following: documents regarding their identities and marital status, a Notice of Intended Marriage dated 8 January 2014, statements by the review and visa applicants, statutory declarations by friends of the parties and photographs.
In the Record of Decision, a copy of which the review applicant provided to the Tribunal, the delegate stated that whilst they were satisfied the parties were engaged, there was no evidence that their relationship was a long term one, in which they drew emotional support and companionship from each other or that they have an intention of committing to a shared life together. The delegate also noted that despite the reported regular communication between the parties, the visa applicant displayed only a superficial knowledge of the review applicant’s life circumstances and a simplistic awareness of her goals and future life ambitions with the review applicant.
Departmental records indicate that the review applicant has departed Australia on the following dates since 2012.
Depart Date Arrival Date
26 February 2013 27 March 2013
7 August 2013 20 August 2013
10 February 2014 5 March 2014
12 September 2014 19 September 2014
16 June 2015 6 July 2015At and prior to the hearing the review applicant provided documents to the Tribunal including, but not limited to; a written submission, phone records and photographs.
TRIBUNAL HEARING
Evidence of Review Applicant
The review applicant told the Tribunal that he lives with his mother, Ms Thi Hein Nguyen and sister, Ms Linda Dam in Newtown. His parents are separated and another sister, Ms Angie Dam, lives with their father elsewhere in Sydney. He has another sister, Ms Thu Trang Nguyen, who lives in Marrickville. The review applicant indicated he is in full-time paid employment in a sales and warehousing role with a wholesale catering business in Botany. He has worked for this employer since November 2014 and has a weekly gross wage of $500. The review applicant advised he contributes $75 per week rent for the family home and also spends approximately $50 per week on food and groceries.
The review applicant said he sends the visa applicant between $50 and $100 per month, most recently two months ago at which time he sent her $100. He said the visa applicant uses this money to pay for English language classes and also buy some things for herself.
The review applicant said he was approached by a friend of his mother, Ms Huyen, who asked if he was interested in being introduced to a nice girl in Vietnam. His understanding is that Ms Huyen knew the parents of this girl and thought that they would be compatible and there would be the possibility of friendship between them. The review applicant said he told Ms Huyen that he would be interested in having contact with the girl, who turned out to be the visa applicant. He said Ms Huyen then gave him the visa applicant’s Facebook contact details.
The review applicant gave evidence that he initiated contact with the visa applicant through her Facebook page and that this occurred in 2012 when he was in Year 12 at secondary school. He said he liked the look of the visa applicant, from the photos that were on her Facebook page and that they started communicating with each other, primarily through Facebook and Viber.
The review applicant told the Tribunal that his first face-to-face contact with the visa applicant occurred on 26 February 2013, when he and his mother travelled to Vietnam and was met at Hanoi airport by the visa applicant, her mother and his mother’s sister-in-law. He said the visa applicant made a good initial impression on him. He said in the days that followed they hung around with each other, getting to know each other and doing activities such as rollerblading, going to the beach, restaurants and bowling. He said he was pleased that she was as good looking in person as she had seemed in her Facebook photographs. The review applicant said that on a few occasions he and his mother went to dinner at the visa applicant’s family home and that she came to dinner a few times at his grandmother’s home.
The review applicant said he and the visa applicant maintained contact by phone and other electronic means after his return to Australia and then, around June 2013, he asked her if she would like to marry him. The review applicant said the visa applicant said she would have to think about it, as they had not known each other for very long and she would also have to seek her parent’s permission. The review applicant said the visa applicant contacted him a couple of days later and said she would love to marry him.
The review applicant stated that he then travelled to Vietnam in August 2013 and was met at Hanoi airport by the visa applicant, her mother, one of his aunts and a cousin. During this trip he asked the visa applicant’s parents’ permission to marry their daughter, to which they gave their consent.
The review applicant gave evidence that he returned to Vietnam again for an engagement party, which the visa applicant’s parents arranged for 15 February 2014. The engagement party was held at the visa applicant’s family home and was attended by members of her extended family and as well as by his mother, his sisters Linda and Thu Tran, his cousin and a couple of his aunties. He explained that he does not have photos from this occasion, but that the visa applicant does have some in her possession.
The review applicant told the Tribunal that he and the visa applicant have not set a specific date for their wedding. He said they are waiting for her to get permission to come to Australia before they decide where and when the wedding will take place. He anticipates they will invite a few friends and family and that they will have a Buddhist wedding ceremony. He said he wants his wife to have her dream wedding, but has not really discussed what her dream for her wedding would be and will do this after the visa is approved. The review applicant added that his mother was more involved than him in setting the original wedding date and dealing with the marriage celebrant they contacted in January 2014.
The review applicant told the Tribunal that the plan is that he and the visa applicant will live with his mother until such time as she acquires effective English language skills, games work and they save enough money to either move out, buy a house or start a family. He has not discussed the issue of starting a family with the visa applicant yet, as he is nervous about how to bring up this topic. He indicated that the visa applicant has said she is agreeable with the suggestion they live with his mother for now but has made it clear to him that sooner or later she would like them to move out on their own.
With regard to their plans for the future, the review applicant said they have not really discussed this issue at any depth and were waiting until she had permission to come to Australia before exploring their thoughts about their future together. He has talked to the visa applicant about his wish to live close to his mother. The review applicant indicated he has not talked to the visa applicant, at any depth, about her dreams for her future but does think she wishes to get married, own a car and buy a house.
In relation to the photographs provided to the Tribunal, the review applicant drew the attention of the Tribunal photographs taken during different trips he has paid to Vietnam since he and the visa applicant became engaged, in which they can be seen together in different locations and with different members of both their families.
Evidence of Witness - Ms Thi Hein Nguyen
Ms Nguyen told the Tribunal that her son and the visa applicant love one another and have had a relationship as husband and wife. She explained that in the Vietnamese culture the engagement ceremony is of prime significance and that after this segment ceremony they are regarded as married. She noted however that they plan to have a wedding here in Australia, if the visa applicant is given permission to come here. Ms Nguyen stated that no specific date has been set for the wedding as it is not practical to set a date until after the visa applicant has permission to come to Australia. Ms Nguyen said the wedding will be held according to a well-established custom, at a restaurant but beyond that it is up to the two children to plan other aspects of the wedding.
Ms Nguyen explained that Ms Huyen has been a friend of hers since of the review applicant was a baby and that Ms Huyen is also friends with the visa applicant’s family in Vietnam. Ms Nguyen said Ms Huyen let her know that she had a friend in Vietnam who had a good daughter that she wished to introduce to Ms Nguyen’s son, so he and the visa applicant could get to know each other and become friends.
Ms Nguyen told the Tribunal that she is in support of the proposed marriage. Her understanding of her son and the visa applicant’s plan is that they will stay with her but that at some stage they will have a family and make further plans.
Evidence of Witness - Ms Chau Duong Huyen
Ms Huyen gave evidence that she has known the mother of the review applicant for a very long time and as a consequence knew that he was a fairly good boy. She said that when she went to Vietnam she visited the mother of the visa applicant, who came from the same quarter as she did and with whom she kept up a friendship after her move to Australia. When she visited the visa applicant’s mother she became aware that the visa applicant was a good daughter and she formed the intent to introduce the children of her two friends so they could themselves become friends.
Ms Huyen reported that she asked the review applicant if you would like to be introduced to a girl in Vietnam and when he responded positively to this suggestion she asked the visa applicant if she would like to get to know a boy from a good family in Australia. When the visa applicant gave her consent and Facebook details to Ms Huyen, she in turn gave the Facebook details to the review applicant. After this she would sometimes ask the review applicant if he was still talking to the visa applicant and on these occasions he said that they were still in touch. She then found out from the mother of the visa applicant that the parties were going out with each other. The review applicant’s mother then told her they were becoming engaged but unfortunately she was not able to travel to Vietnam to the engagement party.
Evidence of Visa Applicant
The visa applicant gave evidence that she lives in Hanoi, with her parents. She indicated she is not currently employed but until recently was working as a kindergarten teacher, which is her qualification. She said the review applicant has a job selling kitchen appliances and that he earns around $500 a week.
The visa applicant gave evidence that Ms Huyen asked her if she would like to be introduced to the review applicant and that it was her that made the first contact with him through Facebook. She said this contact through Facebook occurred in December 2012.
The visa applicant told the Tribunal t the first face-to-face contact occurred between her and the review applicant was on 26 February 2013 at the airport in Hanoi. She said Ms Huyen was also present at this initial meeting, but nobody else.
The visa applicant said she first met the mother of the review applicant on 10 February 2014. The visa applicant said the review applicant proposed marriage on 20 June 2013 and that she did not give him an answer immediately rather asking him to give her some time so she could think about it and talk with her parents. She indicated that about a week later she rang and accepted his proposal of marriage.
The visa applicant said that on 7 August 2013 the review applicant returned to Vietnam and she met him at Hanoi airport along with her mother, the review applicant’s aunt and one of his cousins.
The visa applicant told the Tribunal that she and the review applicant will have the wedding in Australia and that they will make specific plans with regard to this event after she gets to Australia. She thinks they will hold the wedding approximately one month after she arrived in Australia.
The visa applicant said it is her understanding that she and the review applicant will always live in the home of his mother. She said the review applicant sends her money, most recently in August when he sent her $50. The visa applicant said she spends this money on English language lessons. She reported that the plan is for her, in the first instance to study and improve her English language skills. She then intends to re-qualify in her area of speciality, kindergarten teaching and seek employment in this vocational sector.
CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant and review applicant have a genuine intention to live together in a spousal relationship as that is defined in the Act and Regulations.
In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files, as well as the oral evidence provided by the review applicant, visa applicant and witnesses at the hearing. The Tribunal has also taken into account the information received after the hearing.
The Tribunal provided the review applicant with the opportunity to provide further documentary evidence with regard to photographs of the parties engagement party in Vietnam, copies of financial transactions and an updated Notice of Intention to Marry document.
The oral evidence provided at the hearing in relation to the history of the parties’ relationship and their respective living circumstances was generally consistent, but there were some discrepancies. These were put to the review applicant after the hearing in accordance with s.359A of the Act. The review applicant was asked to respond by 25 September 2015.
On 23 September 2015 the following additional information was received from the review applicant’s migration agent; a written submission by the agent, an updated Notice of Intention to Marry document, financial records and photographs from the parties engagement ceremony.
In response to the s.359A letter the review applicant’s migration agent submitted the following;
·At the hearing, the visa applicant was confused and misunderstood the question regarding who was present during her first meeting with the review applicant. Ms Huyen was not present at Hanoi airport on 26 February 2013. Ms Huyen first met the parties on another occasion after 26 February 2013;
·The review applicant’s mother was present at Hanoi airport on 26 February 2013, the visa applicant was confused and misunderstood the question. What the visa applicant had in mind was the occasion, on 10 February 2014, when she met the review applicant's mother before the engagement ceremony on 15 February 2014;
·The review applicant lodged the first Facebook message but the visa applicant overlooked this message and contacted him, which is why she told the Tribunal she initiated the contact between them;
·The visa applicant was influenced by Vietnamese tradition in saying the parties would live in the home of the review applicant’s mother.
In addition, the review applicant’s migration agent submitted with regard to inconsistencies and discrepancies in the parties’ evidence that the visa applicant’s memory is bad and she had no intention to lie. The agent also suggested the dialect between the interpreter and the visa applicant was different. The agent submitted that any inconsistencies and discrepancies in the parties’ evidence were minor and understandable is photographic evidence of the couple together.
The Tribunal is not satisfied that the explanation provided in response to the s.359A letter fully explained the inconsistencies in the oral evidence at the hearing. However the Tribunal has placed some weight to the consistency in the evidence provide by the review applicant and his mother with regard to who was present at the time the parties first met at Hanoi airport on 26 February 2013. The Tribunal also accepts that a degree of nervousness, cultural traditions and language difficulty impacted upon the responses provided by the visa applicant during the hearing. Whilst the Tribunal is not fully satisfied with the explanations provided in response to the s359A letter sent to the review applicant, it has not concluded that the remaining ambiguity in relation to the issues highlighted in the aforementioned letter result in a finding that the review applicant is not a credible witness.
Intention to marry an eligible person
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. The Tribunal has before it evidence of the review applicant’s identity and status. The Tribunal is satisfied that he is an Australian citizen.
The parties have provided consistent evidence of their intention to marry. A copy of a Notice of Intended Marriage dated 8 January 2014 is on the Department file. This document is valid for an 18 month period, which by the time of hearing, had elapsed. The Tribunal was provided with a further Notice of Intended Marriage dated 12 September 2015, upon which 12 December 2015 is identified as a proposed date for the parties’ marriage.
Whilst the parties did not propose a specific date for their wedding during the hearing, they did state they would set a date, should the visa be approved, after she has arrived in Australia. The Tribunal accepts the proposed in the updated Notice of Intended Marriage is not inconsistent with the evidence provided by the parties during the hearing.
The Tribunal accepts, based on all of evidence before it that the parties intend to marry and have their marriage registered in Australia within the relevant visa period.
Accordingly, the Tribunal finds that the visa applicant intends to marry the review applicant, who is an Australian citizen. The Tribunal finds that the requirements of cl.300.211 of Schedule 2 are met.
Have the applicants met in person and are they known to each other personally?
Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally. This requires the parties to have come together in each other’s company or physical presence: MIAC v Yucesan (2008) 169 FCR 202.
The Tribunal finds that upon 26 February 2013, both the review applicant and the visa applicant were over 18 years of age.
The parties’ report they were introduced in January 2013 by a woman, Ms Huyen, who was a mutual friend of their respective mothers. They report they had initial contact over the phone, Facebook and other digital mediums, with their first direct contact occurring on 26 February 2013 during a trip the review applicant made to Vietnam. The parties report they met a number of times during the review applicant’s time in Vietnam between 26 February 2013 and 27 March 2013 and continued to interact after the review applicant’s return to Australia via the phone and digital mediums. The parties report that the review applicant proposed to the visa applicant on 20 June 2013, with her accepting his proposal of marriage a few days later. The review applicant is reported to have travelled to Vietnam again on 7 August 2013 to spend further time with the visa applicant and seek the formal permission of her parents for the marriage.
The parties report the review applicant returned to Vietnam on 10 February 2014, along with his mother and sisters, to formalise an agreement regarding the marriage. They report an engagement ceremony was held on 15 February 2014. The parties report the review applicant has returned to Vietnam to spend time with the visa applicant on two further occasions since they became engaged.
This evidence provided by the parties is consistent with Departmental travel records. The Tribunal accepts that the parties met each other in person in Vietnam in 2013 and that they have developed and maintained a relationship since that time. The Tribunal has considered the large amount of evidence which was provided to the Tribunal by the review applicant. The Tribunal has considered the evidence of friends, family and photographs. The Tribunal is satisfied the parties have met and are known to each other personally.
Therefore, at the time of application, the requirements of cl.300.214 were met.
Do the parties genuinely intend to live together?
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.
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.
Development of relationship
The parties provided consistent evidence that they made initial contact with each other by Facebook after being sounded out by a mutual friend of their respective mother’s. They gave consistent evidence they subsequently interacted over the internet and by telephone before an initial face to face meeting at Hanoi Airport on 26 February 2013. The review applicant told the Tribunal that he was reassured by the visa applicant’s good looks and her pleasing personality when he met her in person.
The parties contend that they have maintained regular contact over the telephone and the internet since their initial contact in early 2013 and the Tribunal has reviewed telephone records that are consistent with this contention. The Tribunal considers that these records support the oral evidence that the parties have communicated regularly by phone and electronic means since late 2012.
Nature of the household
The Tribunal notes that the parties do not reside in the same country. The review applicant lives in Australia and the visa applicant lives in Vietnam. The Tribunal accepts the review applicant’s evidence that he and the visa applicant did not co-habit whilst he was visiting her in Vietnam, prior to their engagement, but had done so during visits since the engagement. The Tribunal is satisfied this reflects cultural norms in Vietnam.
Financial aspects
The parties provided consistent evidence that the review applicant sends her some money, from which she funds English language lessons and also buys some things for herself. The Tribunal was provided with copies of financial transactions which show the review applicant sent the visa applicant money amounting to $550 in the period from December 2014 to June 2015. The Tribunal has noted the review applicant earns a modest income by Australian standards and the amount he has been sending the visa applicant over the past six months are reasonable given his current level of weekly earnings.
The Tribunal finds there has been financial support from the review applicant to the visa applicant that is consistent with that which occurs between people with an intention to maintain a genuine spousal relationship.
Social aspects
The Tribunal has sighted a number of photographs of the parties at the engagement ceremony in February 2014 and in various social settings during the review applicant’s trips to Vietnam to spend time with the visa applicant. This includes photographs with members of each other’s families. The Tribunal finds these photographs provide credible evidence that they present to others as being in a genuine relationship.
For these reasons, the Tribunal is satisfied that parties have represented themselves to their families as being in a genuine relationship.
Nature of the commitment
The Tribunal found the review applicant to be a credible witness and that he displayed attitudes and understanding of the visa applicant that, whilst limited in some respects, was not atypical for a man of his relatively young age.
The Tribunal finds that documentary evidence supports the parties’ claims that they have been in a relationship with each other since June 2013 when the review applicant proposed marriage. The parties had an engagement ceremony in Vietnam on 15 February 2014, which was attended by members of both parties’ families. The review applicant has travelled to Vietnam on five occasions, in which he has spent time with the visa applicant and has spent over three months with her since they committed to a relationship with each other.
The Tribunal found Ms Nguyen to be a credible witness and significant weight is given to her evidence that she supports the relationship between the parties and she considers the visa applicant to be her son’s partner.
The Tribunal finds that the parties have discussed details of their future life in Australia and that their plans include living in the home of the review applicant’s mother until such time as they have the financial capacity to move into a more independent living situation.
Having had regard to the considerations set out in r.1.15A(3) for spousal relationships, the Tribunal finds that at the time of application the parties did have genuine intention to live together as spouses, and therefore cl.300.216 is met.
Do the parties continue to meet time of application requirements?
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.
Having considered the totality of the evidence, the Tribunal is satisfied that the visa applicant continues to intend to marry the review applicant who is an Australian citizen and the parties continue to know each other personally, therefore the visa applicant continues to meet clauses 300.211 and 200.214. The Tribunal finds that the visa applicant continues to satisfy clause 300.215. On the basis of all of the evidence, the Tribunal is satisfied that the visa applicant and review applicant genuinely intend to live together as spouses at the time of decision, in that they intend to be validly married, with a mutual commitment to a shared life as husband and wife, that they intend to form a relationship which is genuine and continuing. Therefore the visa applicant continues to satisfy clause 300.216.
Having considered the available evidence, the Tribunal is satisfied that the applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. Accordingly, the Tribunal finds that cl.300.221 is met.
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
The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
· cl.300.211 of Schedule 2 to the Regulations
· cl.300.214 of Schedule 2 to the Regulations;
· cl.300.215 of Schedule 2 to the Regulations
· cl.300.216 of Schedule 2 to the Regulations; and
· cl.300.221 of Schedule 2 to the Regulations
David Barker
Member
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