1416930 (Migration)

[2016] AATA 3330

1416930 (Migration) [2016] AATA 3330 (22 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Ngoc Huong Tran
Mr The Huan Nguyen
Miss Thanh Le Nguyen
Mr Thien Thanh Nguyen

CASE NUMBER:  1416930

DIBP REFERENCE(S):  OSF2014/027537

MEMBER:Rieteke Chenoweth

DATE:22 February 2016

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 22 February 2016 at 9:20am

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 applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 March 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 couple genuinely intend to live together as spouses.

3. The delegate refused to grant the visas on 3 October 2014 on the basis that the first named applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied the couple genuinely intended to live together.

4. The applicants appeared before the Tribunal on 27 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr The Huan Nguyen, the first named visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the couple genuinely intend to live together as spouses.

8. The migration representative requested time to make written submissions after the hearing.  The Tribunal agreed to the request. On 10 February 2016 the Tribunal received  a submission enclosing a statutory declaration from the review applicant.  In this she set out some of the issues raised in the hearing. 

   ·She stated that her fiancé plans to work in Australia.  He did not mention opening a restaurant because that is something she had contemplated on doing.  It is not concrete plan but merely contemplation.

   ·Her fiancé stated at the hearing that he had been in the sewing business for 20 years and that was correct as he has been working in the industry for over 20 years with different employers.  She stated that at the hearing she stated 5 – 6 years because he’d been working at the previous place for 5 – 6 years she had misinterpreted the question of the Tribunal member which led to the misunderstanding.  Her fiancé stated he is responsible for technical issues and productions, which she may have interpreted as repairs and maintains machines to ensure their function properly ensuring that production of goods run smoothly.

   ·She stated the case concerns her relationship with her fiancé and it was irrelevant if he was unable to remember the specific details regarding her daughter’s friends name or hobbies in Australia.  This is trivial to their relationship.  She stated that at the hearing her fiancé said that her daughter likes her cooking, he did not confirm about her hobbies because the interpretation of the question was not concise hence her fiancé’s answer could be confusing.

   ·She stated her fiancé’s statement that he and his ex-wife had argued a lot was correct. At the hearing she stated that his ex-wife didn’t help him take care of their children which was also correct as they argued often concerning her neglecting their children.

   ·She stated that discrepancies regarding her divorce to the previous marriages are due to the number of relationships she has had and that her fiancé had mixed up the details of her past relationships leading to confusion.    

   Do the parties genuinely intend to live together?

9. 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.

10. 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.

11. The review applicant told the Tribunal she came to Australia in 1996 on a spouse visa. She met her first husband when he visited Vietnam and he sponsored her to come to Australia in 1996. She said they separated in 1997 at a time when she did not yet have permanent resident status.  There are no children of the relationship and the couple divorced in 2005 or 2006. She said the marriage was unhappy because her first husband gambled too much.

12. The review applicant said she had later married again in 2009.  Her second husband worked as a tiler and they divorced in 2013.  She said that at few months after the wedding she discovered her husband was not truthful about his migration status and they separated about 9 months after the wedding when she kicked him out. The Tribunal put to her that in her statutory declaration submitted to the Department she stated they divorced in July 2013 and were separated a year prior to this which would mean she separated in 2012. This is not consistent with her evidence given at the hearing. The review applicant said she could not recall what she had said in her statutory declaration. The Tribunal places no weight on this discrepancy.

13. The review applicant said that the visa applicant’s marriage had not been successful because his ex-wife had not looked after him or the children properly.

14. The Tribunal put to the review applicant that she has previously had two unsuccessful marriages and that she committed to the relationship with the visa applicant after having spent limited time together and after a telephone relationship of only 3 months.  She said that she was now more mature and that she trusted the visa applicant. She was not able to say what caused her to develop this feeling of trust after such a short time.

15. The Tribunal put to the visa applicant that he has had a previous marriage which was not successful. The Tribunal asked the visa applicant why he considered this relationship would work while his previous long term marriage from which he has a 23 year old son and a 19 year old daughter was not successful. He said that he considered they were now more mature and therefore the relationship would work. The Tribunal considers the applicant’s evidence about their relationship in this respect was not convincing. It would expect that where a party has had a previous unsuccessful relationship, and in the case of the review applicant two unsuccessful relationships, and where the couple claim that one of the things they have in common is their divorces and being single parents there would be more than an assumption of maturity and trust to bring them together.

16. In his evidence to the Tribunal the visa applicant said the review applicant had only had one marriage previously and that she had separated from her ex-husband in 2001.  The Tribunal put to him that the review applicant had actually had 2 previous marriages.  He said she had only had one previous marriage and that he was her second husband. He did not know why her marriage had not been successful but assumed that they had not got along and therefore had separated. He said his own marriage had failed because there was conflict between himself and his wife and they had separated.

17. The review applicant told the Tribunal that she works in a charcoal chicken shop as a kitchen hand. She has worked there for about 3 years.  She said that before this she had worked on a casual basis for the Sunbeam factory. She had also worked for another electrical spare parts trader but then returned to the Sunbeam factory. In 2003 she became pregnant with her daughter and stopped work.  She returned to work on a part time basis when her daughter was 5 years old.  At that time she had worked packing clothes.

18. The Tribunal asked the visa applicant what sort of work the review applicant did and he said she worked in a chicken shop.  He did not know of any other sort of work she had done as he said they had not talked about this.

19. The review applicant said that she thought the visa applicant’s job was in a business that sewed clothes and his job was to repair and maintain the machines. She said that he recently changed jobs about 2 months ago but before that he had been working there for about 5 years. For a time before he started the job in the clothes sewing business he had not worked for a while and had stayed home. Since his divorce he has been the sole breadwinner for the family. She did not know if his wife had worked before the separation. She said the couple divorced in 2013 but she did not know when they had separated.

20. The visa applicant said he has always worked in a clothes sewing business.  He said his job was to set up the sewing machines ready for the machining of the garments. He does not do the repairing of the machines. He said he had been working in the clothes sewing business for 20 years. At the end of the hearing the Tribunal put to the review applicant under the provisions of s.359AA that their evidence concerning the visa applicant’s employment differed both as to what the visa applicant did in his job and also the length of time he had been working in the clothes sewing business. The review applicant asked for time to make a written submission. The Tribunal agreed to give her time to do so. In her statutory declaration submitted after the hearing the she stated that her fiancé stated he had been working in the sewing business for 20 years and that it was correct that he’d been working in the industry for over 20 years with different employers are she stated “I stated 5 – 6 years because he has been working at the previous workplace for 5 – 6 years, I have misinterpreted the question of the Tribunal member which led to the misunderstanding”.  The Tribunal does not find this to be credible.  It notes that in her evidence at the hearing the review applicant had talked about the visa applicant not working for a period and staying at home.

21. The Tribunal asked the review applicant how she had met the visa applicant.  She said she had visited Vietnam in 2013 and while sitting in a coffee shop they had started talking.  The shop was crowded and they were at the same table. They exchanged telephone numbers. The visa applicant gave a similar account.  He said he had telephoned her 2 days later and they had had a meal together at the same shop. After that they had gone out together on several occasions and found they were attracted to each other and had interests in common.

22. The Tribunal asked the review applicant what interests she considered they had in common.  She said they both liked bright colours. She then said her favourite colours were black and white. The Tribunal asked what other things they had in common.  She said that they were both separated and were single parents and they shared their concerns about this.  The Tribunal put to the review applicant that although she had stated she talked to the visa applicant regularly and they both had in common that they were single parents she did not know when the visa applicant had separated from his ex-wife. It put to her under the provisions of s.359AA that he gave evidence that she had separated from her husband in 2001 whereas she said she had separated from her first husband in 1997 and from her second husband in either 2009 or 2012. This could indicate that they knew little about each other’s situations or previous relationships. She said that they did not talk about their past relationships. The Tribunal does not find this evidence to be credible. The review applicant gave evidence that the fact they were both single parents was something they had in common and it would expect them to have more knowledge about how long they had each  been single parents.           

23. In respect of the financial aspect of the relationship, in the decision record, the delegate noted the visa applicant had provided 3 money transfer receipts which showed money had been transferred to the visa applicant.  Before the hearing the migration agent submitted a copy of a number of money transfers which show there were 4 transfers to the visa applicant up to the time of the delegate’s decision. These were for amounts of $300, $250, $250 and $500. There were also 2 remittances of $200 and one of $250 in 2015 after the delegate’s decision. The Tribunal puts little weight on the financial remittances made after the delegate’s decision as it considers these were made in the light of the comments made in the decision record about the financial aspects of the relationship. The Tribunal considers there is limited evidence of any pooling of financial resources.  However, it notes the visa applicant is employed in Vietnam and has been supporting his children.  The review applicant is a part time worker, employed as a kitchen hand and is supporting her 11 year old daughter. The Tribunal accepts that where the members of a couple live in separate countries and are each employed it is not unusual that there is little pooling of financial resources. It puts limited weight on this aspect of the relationship.

24. In the decision record the delegate noted the couple have only spent short periods in the same country.  In respect of the aspect of the nature of the household, the Tribunal accepts that as the couple live in separate countries and have not established a household together there is little evidence on this aspect of the relationship.

25. On the Department file there are photos of the couple’s engagement and other photos of them together on different occasions. They each provided oral evidence that the review applicant had been to the visa applicant’s home town and has met members of his family.  The Tribunal consider there is limited evidence of the social aspects of the relationship.  However, it notes that the couple are not married at present and they live in separate countries and that the visa is considered on the basis of their future intentions.  It places little weight in this aspect of the relationship.

26. In considering the nature of the person’s commitment to the relationship the Tribunal considered the evidence presented as set out above.  It notes that although the couple claimed that they were attracted to each other because they shared the fact that they were separated and were single parents they actually had little knowledge about each other’s previous relationships.  This included the fact that the visa applicant only knew of one of the review applicant’s previous marriages. The review applicant said that they did not talk about their previous relationships when they talked on the phone.

27. The Tribunal considers the couple know little about each other.  It notes that the review applicant had told the Tribunal that her daughter played basket ball and went swimming with her friends.  The daughter has a number of close friends she has spent time with over the holidays. The visa applicant was asked what interests the review applicant’s daughter has and he said she liked cooking and then added that she only liked her mother’s cooking.  When asked if the daughter played any sports he said ‘no’. He did not know whether she had friends or anything about them. The Tribunal notes the subsequent evidence the review applicant submitted in her statutory declaration.  It does not consider the visa applicant’s lack of knowledge about the review applicant’s daughter is irrelevant. The Tribunal considers that where a couple are planning to live together and share a house with their respective children and they claim to be in regular contact with each other, it would be expected that they would have considerable knowledge about each other’s children. It considers the absence of this knowledge indicates a limited commitment to the relationship.

28. The Tribunal asked the review applicant about the comments in the decision record that Departmental records showed that she and her daughter and another man had travelled to Vietnam together between 2006 and 2014 and that they had showed the same residential address in Australia during the period 2006 to 2013. When the visa applicant was asked about this at the interview with the delegate he said he did not know about the man and stated that the review applicant lives only with her daughter and brother. He did not know that the review applicant and the man have been travelling together in the past and declaring the same address in Australia and could give no explanation why she did not disclose the information about the man to him.

29. The review applicant told the Tribunal that the man was a friend who shared the house until 2013 and that at the time of the delegate’s interview with the visa applicant he was no longer living there. She said the man was married to her younger sister for several years.  She denied that she was romantically involved with this man. She said they had travelled together on holidays to Vietnam. In 2013 when they travelled together to Vietnam the visa applicant had met her at the airport but she had not thought to introduce him to the man.  She said they had each gone their separate ways. The visa applicant told the Tribunal he now knew about the man and considered he was just a friend.  He considered the review applicant was free to travel with a friend and it was not surprising she had not told him about the man.

30. The Tribunal does not find this evidence credible. While the visa applicant may now know about the man there is no indication that he knew about the other relationship at the time he was interviewed by the delegate or at the time of the delegate’s decision. The Tribunal considers this evidence was made in the light of comments made by the delegate in the decision record.  It considers that as the review applicant and the man had shared a house over a period of years and travelled together between 2006 and 2014 it would be expected that the review applicant would have shared this information.  Her own evidence was that they were friends and that they travelled together to Vietnam on holidays. This indicates that the relationship was a relatively close one. Where parties claim to be in regular communication and are planning to marry it would be expected that they shared information about close friendships. It does not accept that when the review applicant arrived in Vietnam in 2013 travelling with the other man she did not think it necessary to introduce him to the visa applicant or indeed tell the visa applicant about him on the basis that they were going their separate ways. The Tribunal does not consider either of the applicants evidence on this to be credible.

1. The Tribunal asked the review applicant what type of work the visa applicant would look for in Australia.  She said that they had discussed going into a business together.  She was initially vague about what sort of business but then said possibly some sort of trading business.  She also said that as she has some experience in the restaurant business they may go into that type of business and that the visa applicant has agreed to that. 

2. The Tribunal asked the visa applicant what type of work he planned to do in Australia.  He said he would first learn English but then, as he has always worked in a business which sewed clothes he would look for work in that area.  He was not aware the review applicant considered they may set up a trading business or a restaurant. He said that when he and the review applicant talked to each other they discussed their love for each other and had not made any plans for his work prospects.  

3. Under the provisions of s.359AA the Tribunal put to the review applicant that her evidence of what type of work the visa applicant would do in Australia was different from what the visa applicant had stated. The review applicant asked for time to make a written submission. The Tribunal agreed to give her time to do so. In her subsequent evidence in her statutory declaration after the hearing she stated that he did not mention opening a restaurant because that was something she had contemplated doing and that it was not a concrete plan but merely contemplation. The Tribunal does not accept this.  It notes that at the hearing the review applicant said that this had been discussed between them. The Tribunal further considers that where parties are planning to set up a family household and support children together it would be expected that they would make plans for their financial future and this would include plans for what type of work the visa applicant would undertake.   

4. The Tribunal considers that there is little evidence that the applicants have discussed their plans for their future together. The Tribunal considers that where one party is moving to another country where he will have to financially support his family it would be expected that the visa applicant’s employment plans would be an important subject of discussion between them.

5. On the basis of the evidence submitted as set out above the Tribunal is not satisfied that the review applicant and the visa applicant are credible witnesses.  It is not satisfied that they have detailed knowledge about each other or have made joint plans for their and their children’s life together in Australia.

6. At the time of application the parties did not have a genuine intention to live together as spouses, and therefore cl.300.216 is not met.

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

   DECISION

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

   Rieteke Chenoweth
   Member