1418546 (Migration)

[2015] AATA 3086

1418546 (Migration) [2015] AATA 3086 (13 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Phat Phan

VISA APPLICANTS:  Mrs Sean Dan
Miss Sophary Neak
Mr Sophearith Neak
Miss Socheata Neak

CASE NUMBER:  1418546

DIBP REFERENCE(S):  OSF2013/089363

MEMBER:Suzanne Carlton

DATE:13 July 2015

PLACE OF DECISION:  Adelaide

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; and

that the second-named through fourth-named visa applicants each meet the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.311 of Schedule 2 to the Regulations.

Statement made on 13 July 2015 at 4:51pm

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 applied for the visas on 21 November 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 cl.300.216 and cl.300.221.

3. The delegate refused to grant the visas on 11 September 2014 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because he was not satisfied that at the time of the application, the parties genuinely intended to live together as spouses.

4. The review applicant appeared before the Tribunal on 13 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the first-named visa applicant, the second-named visa applicant, and the review applicant’s sister.  The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent. His representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The review applicant/sponsor is a 59-year old Australian man of Cambodian descent.  His previous marriage ended in 2010 and he has three adult children from that relationship.

8. The first-named visa applicant (the visa applicant) is a 35-year-old Cambodian woman.  Her previous marriage ended in 2013 and she has three children from that marriage, all of whom are in school.  She lives with her children and has a small home business as a money lender.  Her three children are the second-named through fourth-named visa applicants (the secondary applicants).

9. The parties claim to have met on March 2013 along the riverbank in Phnom Penh.  At that time, the visa applicant was separated from her husband, but they were not yet divorced.

10. Upon the sponsor’s return to Australia, the two telephoned each other frequently.  The sponsor has transferred money to the applicant on a number of occasions. 

11. He returned to Cambodia next in late 2013 with plans to celebrate his engagement with the visa applicant.  Whilst there, the two bought a new home.  The engagement party was held at the new home and included the sponsor’s sister, Phy Phan, the visa applicant’s children and friends. 

12. After the engagement, the two began living in the new home, the sponsor having previously stayed in a hotel in Phnom Penh. 

13. The sponsor has travelled to Cambodia on subsequent occasions to visit the visa applicant, including for two months in 2014 and for four months in 2015. 

14. The issue in the present case is whether the parties, at both the time of application and the time of decision, genuinely intend to live together as spouses.

    Do the parties genuinely intend to live together?

15. 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).

16. 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.

17. 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.

18. The Tribunal notes that the sponsor has sent financial assistance to the visa applicant during the relationship and the two have bought a home together.  The parties say that this money is to help offset the visa applicant’s expenses, including assistance for the children’s school fees.

19. The Tribunal notes that additional evidence of travel has been sighted indicating the time the couple have spent together, with her children in Cambodia, Vietnam and Thailand. 

20. The Tribunal accepts that the engagement was celebrated openly amongst family and friends.  The Tribunal accepts the explanation that the sponsor’s brothers and other sister were unable to attend.  The Tribunal also accepts the explanation of why the sponsor has not yet informed his adult children of the relationship.

21. The parties each appear to derive a degree of companionship and emotional support from the other and have evidenced their intentions to marry and live together as spouses, setting up a joint household together in the new home. The two have remained in regular contact during periods when each are in different countries, and evidence of this has been provided.

22. Based on the above conclusions, the Tribunal is satisfied 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.

    Do the parties continue to meet time of application requirements?

23. 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.

24. As set out above, the Tribunal was provided with evidence as to these factors and is therefore satisfied that cl.300.221 is met.

    Findings as to the secondary applicants

25. Based on the evidence before me, I am satisfied that the second-named through fourth-named applicants are the dependent children of the visa applicant, who has applied for a subclass 300 visa.  They are covered by the sponsorship. They therefore meet cl.300.311.

26. 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

27. 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; and

    that the second-named through fourth-named visa applicants each meet the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300.311 of Schedule 2 to the Regulations.

    Suzanne Carlton
    Member