1418719 (Migration)

[2016] AATA 3582

1418719 (Migration) [2016] AATA 3582 (22 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Kim Tien Duong

VISA APPLICANT:  Mr Chi Binh Ha

CASE NUMBER:  1418719

DIBP REFERENCE(S):  OSF2014/026452

MEMBER:Ian Garnham

DATE:22 March 2016

PLACE OF DECISION:  Melbourne

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, 300.214, 300.215 and 300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 22 March 2016 at 9:21am

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 on 29 October 2014 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) Subclass 300 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 March 2014. The delegate refused to grant the visa on the basis that the parties did not have a genuine intention to live together as spouses. Therefore the applicant did not meet cl.300.216 of Schedule 2 of the Migration Regulations 1994 (the Regulations)

3.    The review applicant appeared before the Tribunal on 28 October 2015 and 1 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant on both occasions.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4.    At the first hearing the Tribunal also heard from two witnesses; Mrs Thi Anh Duong (the review applicant’s mother) and Ms Thi Bui Lam (the review applicant’s sister in law).

5.    The review applicant was represented in relation to the review by her registered migration agent.   

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Does the visa applicant intend to marry an eligible person?

7.    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 information before the Tribunal confirms that the review applicant is an Australian permanent resident since 15 May 2008. 

8.    The Tribunal is satisfied that at the time of application the visa applicant intended to marry an eligible person, the review applicant.  Accordingly the requirements of cl.300.211 are met.

Have the applicants met in person and are they known to each other?

9.    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.  On the evidence before it, including extensive photographic evidence, I am satisfied that the parties have met and are personally known to each other as they have stated.  Therefore, at the time of application, the requirements of cl.300.214 were met.

Do the parties genuinely intend to marry?

1. Clause 300.215 requires that at the time of application the parties have a genuine intention to marry within the visa period. I am satisfied that, based on translated documents placed on file, photographic evidence and the oral evidence of the parties that they conducted an informal engagement/marriage in Vietnam on 14 February 2013.  In addition, with the application the parties provided a confirmation letter by an Australian Marriage Celebrant dated 25 January 2014 stating the parties intended to marry in Australia on 25 January 2015.  

2. I am satisfied that at the time the application was made the parties had a genuine intention to marry within the visa period.

3. The Tribunal finds that at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a).  I also find that it was intended that the marriage take place within the visa period as required by cl.300.215(b).  Therefore, the requirements of cl.300.215 are met.

Do the parties genuinely intend to live together?

1. The major issue in the present case is whether the parties genuinely intend to live together as spouses.

2. 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 the legislation may assist in determining the parties’ aspirations.

3. 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.

Inception and development of the relationship:

1. The parties have consistently stated that they were introduced by the visa applicant’s aunt who lives in Australia.  The sponsor travelled to Vietnam on 22 March 2013 and returned on 17 June 2013.  The review applicant travelled from Australia with her parents and all three of them travelled together to Ho Chi Minh City and Bac Lieu to visit relatives, they then travelled to Ha Tien and surrounds for 5 days before travelling back to Ho Chi Minh City and Bac Lieu.

2. On 24 April 2013 they (the visa applicant and her parents) claim they travelled to Ha Tien to meet the visa applicant and his family.  At hearing the review applicant explained that it was raining during the original decision maker’s interview with her and some of her recorded responses are incorrect, including the response that the parties spoke first on the telephone before she met him in Vietnam.  She explained that this is incorrect the first time they spoke was face to face on this occasion.  The visa applicant’s evidence was consistent with the review applicant and they both similarly identified other persons present at this meeting.  The review applicant said that they may have met on one other occasion during this 5 day period and both agreed that they continued telephone contact from this point onwards.   

3. After this the review applicant stated that she and her parents remained in and around Ha Tien for about 5 days before travelling back to Bac Lieu.  Both parties agreed they did not see each other again during this time but may have had telephone contact.  About one month before the review applicant and her parents were due to leave China the review applicant fell over and broke her leg.

4. The review applicant required hospitalisation in Ho Chi Minh City for 3 days and then she stayed at her niece’s house in Ho Chi Minh City.  The review applicant’s uncle had died and both her parents were unwell and not able to look after the review applicant at this time.  The review applicant advised the visa applicant of her circumstances and he agreed to come to Ho Chi Minh City to care for her.

5. The parties claim that the visa applicant spent all 3 nights in the hospital with the review applicant and then stayed at the review applicant’s nieces place with her.  The review applicant said that the visa applicant spent a lot of time in her room and they developed a verbal love for one another.  The review applicant’s niece had to care for her small children and her parents were unable to care for her, so all the care was undertaken by the visa applicant.

6. The review applicant explained (partly in response to the delegate’s finding that; …since first meeting the applicant, the parties have spent little time in the company of one another…) that this was an intensive period of their relationship when they were together constantly.  The review applicant stated that verbal love developed between them while he was caring for her.  They were given a send-off party when the review applicant had to return to Australia.

7. The parties claim that after the review applicant returned to Australia they continued to regularly contact each other by telephone and their love grew stronger.  On the 2 October 2014 they agreed to get married and after gaining their respective families approvals set a date for an engagement ceremony in Vietnam on 14 February 2014.  The review applicant again travelled to Vietnam in the period; 28 January 2014 to 26 April 2014.

8. This time the review applicant claims she first visited her family in Bac Lieu and prepared for her engagement.  She claims she then went to Ha Tien and stayed in the same house with the visa applicant.  Firstly she stayed in her sister-in-law’s room and after the engagement she has always shared a room with the visa applicant when in his house in Vietnam.  They claim to have spent about a month touring around the Ha Tien area.  After this the review applicant’s parents suffered severe food poisoning and they required hospitalisation.  The parties returned to the Bac Lieu area together to care for them.  

9. The review applicant returned for a further trip to Vietnam in the period; 30 March 2015 to 6 May 2015.  The parties claim that during this period, aside from when the review applicant was working, they were together the whole time.  They slept together in a bedroom in his house but stayed in separate rooms when staying in motels.  With the submission a Certificate of Temporary Residence has been provided to confirm the review applicant’s presence at the home of the visa applicant.

Financial aspects of the relationship:

1. The parties have done little to join their financial resources.  They have seen no need to do so.  However they are both familiar with each other’s financial and employment situation and seem to have genuinely turned their minds to their financial future as a couple.

2. The review applicant has never formally worked for wages.  She cares for her parent’s home and sometimes cleans the houses of friends in the community and receives nominal payments for this service.  The review applicant also told the Tribunal that she currently has savings of a few thousand dollars.

3. Evidence of support payments of $200 made by the review applicant to the visa applicant on the following dates; 22/11/14, 03/02/15 and 05/09/15, are contained in the file.  The review applicant advised the Tribunal that she told the visa applicant to stop sending her payments because life is more difficult financially in Vietnam and she continues to get by quite well.  This is why she has more recently made the above payments – to provide him with a little extra.  The visa applicant stressed that he has not asked for these payments made by the review applicant.

4. The visa applicant is a tour guide in Vietnam and currently earns $450 - $480 / month.  He currently has savings of approximately $600.00 AUD.  He stated when he comes to live with the review applicant in Australia he will study English and then get his licence and a job. 

5. The visa applicant and his parents paid for the fees associated with this application.  They claim to have tended to share their joint costs when they have been together in Vietnam.

6. While there has been no formal pooling of financial resources by the parties, they have provided ample evidence of an awareness of each other’s financial circumstances and an understanding of how life will proceed if the visa is granted.  They have provided realistic and tangible evidence which is indicative of parties with a genuine intention to conduct a continuing spousal relationship.

   Nature of the household: 

7. The review applicant continues to, and always has lived with her parents.  When the visa applicant comes to Australia they will continue to live there, she wants to always care for her parents as they age. 

8. The visa applicant said he wants to have 2- 3 children and after he gets employment he hopes to save and purchase a bigger house to accommodate everyone. 

9. Due to the circumstances of the relationship, on its face, the parties have spent very little time together.  In addition the review applicant has argued that the time they have spent together and apart has involved periods of intensive contact.  On the first trip after the review applicant broke her leg the parties were literally together the entire time (about one month).  The review applicant also claims that between her first and second trips extensive and constant phone calls were conducted because they were in love and seeking to progress the relationship.

10. They claim that despite becoming engaged on the second trip the parties did not begin to share a bed but they did spend nearly all of the time following the engagement together as a couple.  The review applicant stated that by her third trip in 2015 they could not wait any longer and began sharing a bed at the visa applicant’s house.   

11. The parties were both credible witnesses and I am satisfied that they have spent some intensive periods of time together as the review applicant claims.  I am also satisfied that they have discussed and planned to conduct a household that includes the review applicant’s parents when the visa is granted and the visa applicant comes to Australia.

Social aspects of the relationship:

1. Before and at the hearing the parties have provided extensive photographic evidence of all of the time spent together including their engagement celebration and also a CD of this event has been provided.  The photographs from the most recent trip mostly depict the review applicant and visa applicant with his family.   

2. Third party declarations are also extensive and previously included; neighbours of the visa applicant and the review applicant’s mother.  The more recent declarations provided for this review have been provided by the visa applicant’s parents and aunt and uncle.

3. In addition to the information that was before the delegate the parties have provided expired phone cards and phone records verifying the regular phone contact between the parties. 

4. At the hearing the parties independently stated that they continued to communicate by telephone 2-3 times per week.  In general the parties demonstrated to the Tribunal a good understanding of each other’s day to day commitments.  This included the visa applicant showing a good understanding of the review applicant’s unusual circumstances with respect to employment and how she spends her time.

5. The review applicant also displayed a good understanding of the visa applicant’s circumstances which is commensurate with the approximate 6 month cumulative, length of time they claim to have spent together during the review applicant’s three trips to Vietnam.

6. Based on the extensive photographic evidence from the time together and the evidence of the third parties, as well as the oral evidence provided at the hearing, I am satisfied that the parties are in an open and exclusive relationship.      

Commitment to the relationship:

1. I am satisfied that as far as is possible when people are living in different countries, the parties have now demonstrated clear intentions to enter into a genuine and committed relationship.

2. The delegate was concerned that the parties had not spent a significant period of time together when they decided to commit to a long term relationship and marry.  In response the applicants responded differently to this concern.  The review applicant said that in her opinion the decision was not a rapid one; after she returned from the trip where she met the visa applicant they spent a significant period (4 months) of regular phone getting to know each other better before they agreed to marry.  Whereas the visa applicant said that while it is true that there were family intentions to introduce the parties, the review applicant breaking her leg provided a window of opportunity for them to spend an intensive period of time together early in the relationship and this caused them to rapidly develop strong bonds.              

3. I am satisfied that at the time of application the parties had a genuine intention to live together as spouses, and therefore cl.300.216 met.

4. 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.  On the evidence before it, the Tribunal is satisfied that the parties continue to meet these clauses.  Accordingly cl.300.221 is met.

5. 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

1. 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.300.211, 300.214, 300.215 and 300.216 of Schedule 2 to the Regulations of Schedule 2 to the Regulations

   · cl.300.221 of Schedule 2 to the Regulations

Ian Garnham
Member