1414200 (Migration) - [2015] AATA 3470

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1414200 (Migration) [2015] AATA 3470
Case: [2015] AATA 3470
Decision Date: 8 October 2015

CaseChat Overview and Summary

The matter before the Tribunal involved a Vietnamese national, the visa applicant, who sought to enter Australia on a Subclass 300 visa, and the review applicant, an Australian citizen of Vietnamese descent. The dispute centred on whether the applicants had a genuine intention to live together in a spousal relationship as defined in the Act and Regulations. The Tribunal was tasked with determining whether the relationship met the requirements for the issuance of a prospective marriage visa.

The legal issues that the Tribunal had to resolve included whether the applicants had a genuine intention to live together in a spousal relationship, whether they had emotional support and companionship for each other, and if they intended to commit to a shared life together. The Tribunal had to consider the documentary evidence provided by both parties, including identity documents, statements, statutory declarations, and photographs, as well as the oral evidence given during the hearing. The Tribunal also considered the discrepancies in the parties' accounts and the additional information provided after the hearing.

In making its decision, the Tribunal took into account the overall consistency of the parties' accounts, the documentary evidence, and the additional information provided by the review applicant's migration agent. The Tribunal found that while the parties were engaged and had some regular communication, there was insufficient evidence to demonstrate a genuine intention to live together in a spousal relationship. The Tribunal noted that the visa applicant's understanding of the review applicant's life circumstances and future ambitions was superficial. Consequently, the Tribunal concluded that the application should be remitted for reconsideration, with directions that the visa applicant meet specific criteria for a Subclass 300 visa.

The Tribunal remitted the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, directing that the visa applicant meet the criteria outlined in cl.300.211, cl.300.214, cl.300.215, cl.300.216, and cl.300.221 of Schedule 2 to the Regulations. The Tribunal's decision required the Minister to reassess the application in light of the new directions provided.

Orders

Orders of the court

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Background

Background to the litigation

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 Date26 February 2013 27 March 20137 August 2013 20 August 201310 February 2014 5 March 201412 September 2014 19 September 201416 June 2015 6 July 2015 At 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 HEARINGEvidence 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 RegulationsDavid BarkerMember

Ratio Decidendi

Legal Principle Established

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