1420020 (Migration)

[2016] AATA 3702

1420020 (Migration) [2016] AATA 3702 (11 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gilbert Paul Chene

VISA APPLICANT:  Ms Thi Lanh Nguyen

CASE NUMBER:  1420020

DIBP REFERENCE(S):  BCC2014/695743

MEMBER:Di Hubble

DATE:11 April 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.300.216 of Schedule 2 to the Regulations.

Statement made on 11 April 2016 at 4:04pm

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 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 11 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).

3. The delegate refused to grant the visa on 24 November 2014 on the basis that the visa applicant did not satisfy cl.300.216 of the Regulations because there was not sufficient evidence and information to demonstrate that the visa applicant and the sponsor genuinely intend to live together as spouses. 

4. The review applicant, who was represented by a registered migration agent, sought review of the delegate’s decision on 8 December 2014.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Do the parties genuinely intend to live together?

5. 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).

6. 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.

7. The parties claim to have met at the Ben Thanh Market when the review applicant was visiting Vietnam in January 2013.  The evidence before the Tribunal indicates that the review applicant has since returned to Vietnam on multiple occasions, most recently in January 2016.  The Tribunal has been provided with copies of various photographs of the parties together during those trips, together with a number of statements from various friends and family of the visa applicant.  The Tribunal notes that the visa applicant has never been to Australia and, therefore, it cannot be expected that she would have met the review applicant’s family and friends.  The Tribunal also has a number of statements from various staff members of the hotels that the review applicant and the visa applicant stay at during the review applicant’s visits from Australia. 

8. The delegate was concerned by the visa applicant’s lack of English language skills and what was said to be her lack of knowledge about various aspects of the review applicant’s life in Australia, both currently and historically.  The Tribunal acknowledges these concerns but considers that such matters may, in part, be attributable to the visa applicant’s relative lack of education and English language skills and her apparent nervousness at the interview.  In light of this, the Tribunal makes some allowance for the abovementioned matters.

9. At the time of her decision in November 2014, the delegate was concerned by the lack of documentary evidence to support the parties’ claim that they genuinely intend to live together in a spousal relationship.  The Tribunal notes that at the time of its decision the parties have maintained a committed long distance relationship for more than 3 years and there is somewhat more evidence before it than that which was available to the delegate.

10. The Tribunal notes that in determining the nature of a relationship at a particular time, evidence of subsequent events may be taken into account if it tends to logically show the existence or non-existence of the relationship at that particular time (Bretag v Immigration Review Tribunal (unreported, 29 November 1991); Jayasinghe v MIMA [2006] FCA 1700).

11. 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.  The Tribunal gives weight to the length of the relationship and the very many visits by the review applicant to Vietnam to see the visa applicant as evidence of their mutual commitment to their relationship.  The Tribunal is satisfied that the parties have social recognition of their relationship from their families and friends.  The Tribunal notes that the parties have not yet merged their households or finances, but accepts that they intend to do so once the visa is granted.  On all the evidence before it, 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.

12. Accordingly, 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

13. 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.300.216 of Schedule 2 to the Regulations.

    Di Hubble
    Member