1421138 (Migration)

[2016] AATA 3094

1421138 (Migration) [2016] AATA 3094 (18 January 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs THI BACH LAN LE

VISA APPLICANTS:  Mr SOKLIM KHEANG
Mr BLEA KHEANG

CASE NUMBER:  1421138

DIBP REFERENCE(S):  OSF2013/089388

MEMBERS:Fiona Meagher (Presiding)

Jane Bishop

DATE:18 January 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 18 January 2016 at 4:17pm

Statement made on 18 January 2016 at 4:10pm

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 are Mr Soklim Kheang (47 years old), and Blea Kheang (14years old), both citizens of Cambodia. Mr Kheang is the primary applicant. Mr Kheang has been previously married and was divorced in August 2012. He has three children from that marriage. He has custody of one of them, the secondary applicant. The review applicant and sponsor is Ms Thi Bach Lan Le (55 years old), born in Vietnam’s and now an Australian citizen. Ms Le was previously married and divorced in 2008. She has two children from that marriage, one of whom lives with her.

3. The visa applicants applied for the visas on 10 December 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 whether the parties genuinely intend to live together as spouses.

4. 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 the parties were unable to provide sufficient evidence of an intention to live together as spouses.

5.    This is an application for review of that decision.  The application was lodged on 23 December 2014.

6.    The review applicant appeared before the Tribunal on 11 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese, Khmer and English languages.

7.    The review applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The Prospective Marriage (Temporary) (TO) visa is a visa for persons seeking to enter Australia to marry, after their first entry to Australia, an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse with a view to remaining permanently. 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).

10.    The relevant criteria to be satisfied at the time of application include that:

(a)the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen: cl.300.211;

(b)the parties have met in person since each of them turned 18 and are known to each other personally: cl.300.214;

(c)the parties genuinely intend to marry and intend that the marriage will take place within the visa period: cl.300.215; and

(d)the parties genuinely intend to live together as spouses: cl.300.216.

11.    Additionally, the parties need to continue to meet these primary criteria at the time of decision: cl.300.221.

Issue 1 – Were the primary criteria satisfied at the time of application on 10 December 2013?

Does Mr Kheang intend to marry an eligible person?

1. Based on the evidence before the Tribunal Mr Kheang intends to marry an eligible person. The Tribunal is satisfied that Ms Le is an Australian citizen pursuant to a grant of citizenship dated 12 February 1998.  The Tribunal has sighted a certified copy of the Certificate of Australian Citizenship.

   Have the parties met in person since turning 18?”

13.    The Tribunal accepts the evidence of the parties that they have met since turning 18.  The Tribunal has sighted certified copies of the parties’ passports which confirm their ages respectively as: Ms Le - 56 years old, and Mr Kheang - 47 years old.  In addition the Tribunal has sighted photographs of the parties together.

Do the parties genuinely intend to marry and intend that the marriage will take place within the visa period?

14.    In material before the Tribunal the parties claim to intend to marry within the visa period.  The review applicant referred to a letter dated 26 September 2013 from Mr Hoa Lam, Civil Marriage Celebrant, foreshadowing a marriage to take place between the parties on 25 May 2014.

Do the parties genuinely intend to live together as spouses?

15.    Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’.

16.    ‘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).

17.    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’ intentions.

Formation and development of the relationship

18.    In the delegate’s decision – a copy of which was provided to the Tribunal – it states that the parties met on 6 June 2012 while travelling on the same bus from Vietnam to Cambodia. The parties exchanged phone numbers and Ms Le returned to Australia on 9 June 2012. In October 2012 Ms Le returned to Cambodia and contacted the Mr Kheang to use his tuk tuk services. Ms Le returned to Australia on 30 October 2012. The parties remained in contact via the phone during the relationship.

19.    During the hearing Ms Le told the Tribunal that she met Mr Kheang in a bus travelling from Vietnam to Cambodia in June 2012. She said that they had a conversation in Khmer consisting of saying hello and asking each other where they were from and where they were going. Ms Le said that Mr Kheang told her he had been to Vietnam to take his mother to the doctor. Ms Le said she had been in Vietnam visiting family and was returning to Cambodia. When asked by the Tribunal why she was in Cambodia Ms Le responded that she had lived there about 20 years ago. She said that the family members she had been visiting in Vietnam were her elder brother and younger brothers. When asked further about the bus journey Ms Lee said that she was accompanied on it by her younger brother and sister-in-law.

20.    Ms Le said that after the initial conversation she and Mr Kheang talked about their families, whether Mr Kheang had a wife and his occupation (which is as a tuk tuk driver). She also said that she asked for his phone number while on the bus because she was thinking of being his friend. She rode in his tuk tuk twice after the bus trip before returning to Australia.

21.    Ms Le told the Tribunal that after she returned to Australia she contacted Mr Kheang regularly, sometimes once per week and sometimes five times per week. She would use $10 phone cards and they discussed whether they had had their daily meals and taken their children to school. Ms Le explained that she returned to Cambodia in September 2012 because she had developed feelings for Mr Kheang over the phone. She said that Mr Kheang and his wife had divorced in January 2012. Ms Le said that the second visit to Mr Kheang lasted about two weeks and she stayed at his house which was in a village like Inala. After that trip, the relationship continued over the phone according to Ms Le.

22.    The Tribunal put to Ms Le some of the contents of her signed undeclared ‘statutory declaration’ of 25 October 2013 on the Department’s file. In that statement she made no mention of any phone contact with Mr Kheang between the June 2012 visit and October 2012 when she called him to pick her and a friend up from the central market. The Tribunal also referred Ms Le to the paragraph regarding her inviting Mr Kheang to eat soup with her friends and family and herself on 25 October 25 2012. The Tribunal put to Ms Le that she had stated Mr Kheang told her he and his wife had divorced in August 2012.The Tribunal explained to Ms Le that her written and oral evidence about how the relationship developed were inconsistent which raised doubts about the reliability of her evidence.

23.    Ms Le became agitated when asked about this ‘statutory declaration’.  She said she had no knowledge of it.  She said she was feeling cold and under a lot of stress, that she felt sick and like a criminal.  The Tribunal adjourned to allow Ms Le to regain her composure, and upon resumption confirmed that she felt able to continue.

24.    When the Tribunal resumed it was again put to Ms Le that her oral evidence at the hearing and her written evidence provided to the Department in October 2012 were inconsistent. Ms Le’s response was that her English is not good and she doesn’t know about a ‘statutory declaration’. Ms Le was also asked why her ‘statutory declaration’ of 25 October 2013 stated that she told her fiance that she did not live in Cambodia in October 2012 but had not mentioned that today in her evidence. Ms Le did not respond to those questions. Instead she stated her last visit to Cambodia was in 2015. She also stated that she and her fiance had talked about weddings in Cambodia and here, joint bank accounts, her fiance going to TAFE to study English and that he will help with the heavy work. If he comes she will send his son to Corinda School. None of these statements explained why the versions put to her were different.

1. Ms Le told the Tribunal twice that Mr Kheang was divorced from his wife in January 2012. She said that Mr Kheang told her that he had been divorced in January 2012 and living separately from his wife during the bus trip in June 2012.   The version contained in Ms Le’s ‘statutory declaration’ dated 25 October 2013 was put to Ms Le.  It states that Mr Kheang told Ms Le of his divorce while they were eating soup together on 25 October 2012 and that “he had recently just received the civil judgement from the court on this August…”. Ms Le’s response was that Mr Kheang told her they were not happy together in January 2012 then in June that they were going to court in August. Therefore there are three versions of how Ms Le became aware of Mr Kheang’s divorce before the Tribunal. 

   The proposal

26.    Ms Le said they first discussed marriage when Mr Kheang proposed to her by phone in June 2013 when she was in Australia. Ms Le was referred to her statutory declaration dated 11 August 2015 - received by the Tribunal on 14 August 2015 - which stated in paragraph 19(c) 9 April 2013 – 7 May 2013: “during this trip, my fiance, Soklim proposed to me; and…”.  The Tribunal explained to Ms Le it has a duty to put to her inconsistencies which have arisen during the evidence and that subject to her responses these inconsistencies could raise doubts as to her credibility in the mind of the Tribunal.  Ms Le was adamant that Mr Kheang had proposed to her over the phone while she was in Australia. She confirmed that the statutory declaration of 11 August 2015 had been read back to her in Vietnamese and suggested that maybe the proposal had got confused in the translation or that she had not heard it correctly. She also confirmed that she understood the importance of not making a false statement in a statutory declaration. 

1. Ms Le’s representative made a submission regarding the nature of the proposal. He submitted that proposals are different in Eastern cultures, from how they are in Western cultures.  His submission was that the proposal was “ongoing” – “it was on the phone initially, and confirmed during the trip”.  It was at the representative’s behest that the Tribunal asked Ms Le again about the proposal. Therefore the Tribunal revisited this issue again, and Ms Le reiterated that her fiance had proposed to her in June 2013. When asked whether there had been any earlier discussions regarding marriage she replied that there had been but that she could not remember when they were.

   Financial aspects of the relationship

28.    In Mr Kheang’s signed statement dated 3 August 2015 he states that the parties continued to save money separately “for our future life in Australia”. He stated that the parties intended to open a joint Australian bank account and pool their finances. He stated that the parties intended to purchase a home. He stated that he did not understand government assistance schemes in Australia and that Ms Le was currently on Centrelink benefits. In Ms Le’s statutory declaration declared on 11 August 2015 she stated that the parties’ long term intention is to save a deposit for a home. However when Mr Kheang and his son first come to Australia the intention is to live with Ms Le and her son in their current home.

1. The delegate found that there was insufficient evidence of the parties currently having any joint assets or liabilities nor that they pooled their finances in any way, nor did they demonstrate a future intention to do so.  The Tribunal notes that two money transfers were provided among supporting documents provided by the Representative on 13 August 2015.  Those transfers are Western Union transfers from Ms Le to Mr Kheang dated 20 August 2014 and 19 January 2015 for AU$1735.00 and AU$2045.21 respectively.

30.    Despite Mr Kheang’s assertion that the parties are saving money separately for their future, there was no objective evidence of their individual saving provided to the Tribunal. However the Tribunal accepts that there is some evidence of Mr Kheang being reliant upon Ms Le for some financial assistance. The parties’ stated intention is that in the short term Mr Kheang and his son will live with Ms Le while he learns English and finds employment. The parties stated intention is that they will open a joint Australian bank account and save for a deposit on a home.

The nature of the household

31.    Ms Le claims in her statutory declaration made on 11 August 2015 to have travelled to Cambodia five times since meeting Mr Kheang.  She claims “during my many lengthy visits to Cambodia I had lived with him and shared every aspect of his life.  We spent every waking minute together and I was able to see what a life with Soklim would be like.”  However Ms Le also concedes that she and Mr Kheang do not speak a great deal of the same language.  When the Tribunal asked Ms Le to describe the home she shared with Mr Kheang she was only able to give a sketchy description of the house where she says she stayed with Mr Kheang. However the parties stated intention is that they will live together in Ms Le’s current home and the long term intention is to live together in a house of their own.

The social aspects of the relationship

32.    There were 34 photographs provided to the Tribunal. Of those photographs 14 were taken at the engagement ceremony and the Tribunal accepts that an engagement ceremony attended by about thirty people, (mostly family members of the parties) took place in a restaurant in Cambodia on 20 October 2013. The other 24 photographs were of Ms Le and Mr Kheang on some outings together and with the secondary visa applicant.  The only photographs showing people other than Ms Le and Mr Kheang are the engagement photographs. 

33.    The Tribunal was provided with two statutory declarations (Form 888). The Form 888 completed by Mr Van Minh Nguyen and declared on 10 August 2015 states that he has known Ms Le for ten years and that he sees her on a regular basis. He states that he is aware of Mr Kheang but has not spoken to him or met him. He believes the relationship is genuine and continuing because Ms Le is in love with Mr Kheang, she talks about their future plans and she has travelled to be with him six times. The second Form 888 completed by Ms Thi Chuong Nguyen (Mr Nguyen’s wife) and declared on 10 August 2015 states that she has known Ms Lee for ten years and that she sees her on a regular basis. She is aware of Mr Kheang but has not spoken to him or met him. She believes the relationship is ongoing and genuine because Ms Le talks about him and their future plans and she has travelled to Cambodia six times to spend time with him. The Tribunal accepts that Ms Le and Mr Kheang had an engagement ceremony attended by family members, and that Ms Le has told at least two of her friends about the relationship. The Tribunal is of the view that there is some evidence of Mr Kheang and Ms Le presenting themselves socially as a couple and their stated intention is that they will do so in the future.

The nature of the persons’ commitment to each other.

34.    The Tribunal has been furnished with phone records for the period 1 January 2015 to 30 June 2015 showing  international calls to the number Mr Kheang stated was his in his statement. Having examined those phone records the Tribunal finds that Ms Le made about 78 phone calls to Mr Kheang (including one on 31 December 2014) on 43 different dates. Of those 78 phone calls, 29 were over five minutes and most ranged between 10 and 20 minutes. However there was one call that lasted over an hour.

35.    In the delegate’s decision it states that Mr Kheang said that he does not speak Vietnamese or English and that Ms Le speaks basic Khmer. However when the Department contacted Ms Le she was unable to understand more than the most basic Khmer and requested a Vietnamese interpreter. In her statutory declaration declared on 11 August 2015 she ‘admits’ that there is a language barrier between the parties and her Khmer skills are quite basic. She states that the parties are able to communicate the essential things.

36.    Ms Le gave evidence that she spoke to Mr Kheang by phone regularly and the six months of phone records from 2015 give some weight to her claims. During the hearing she said that she used $10 phone cards in the beginning of the relationship. She said they discussed matters like what they did during the day, had they been to the market, and she asked about Mr Kheang’s son Bhea (the secondary applicant), and Mr Kheang asked about her children.  However earlier in the hearing Ms Le gave evidence that she had never asked Mr Kheang whether he sees his two daughters. 

37.    Ms Le provided certified copies of some of the pages of her passport valid from 18 March 2009 to 18 March 2019. During the hearing she said she has been to Cambodia many times since meeting Mr Kheang to spend time with him. The statutory declarations from Mr and Mrs Nguyen indicated that it had been six times and the pages of her passport supported those claims. However the passport pages indicated that Ms Le would often travel to Vietnam when she visited Cambodia and her passport indicated that she visited Vietnam in 2009, 2010 and 2011. Not all of Mr Le’s passport pages were included and – in the absence of those pages - it is unclear if she also travelled to Cambodia on those or other occasions. Based on the evidence before it the Tribunal is not satisfied that Ms Le pattern of travel has changed since meeting Mr Kheang.

1. The fact that Ms Le claims to intend to live with Mr Kheang in a spousal relationship does not establish that intention. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case have to be supplied by the applicant herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her, and the Tribunal is not required to accept uncritically any and all the claims made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

2. The Tribunal notes (in the context of a protection case) that Rangiah J held in the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, at [21]:

   As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

3. There was no objective evidence of the parties saving for the future and the phone records provided did not indicate that the parties communicated with each other as often as Ms Le had claimed. There was no objective evidence to support Ms Le’s claims of regular phone contact prior to 2015. The Tribunal accepts Ms Le’s evidence that there is a language barrier and that she can communicate with Mr Kheang regarding essential things. Ms Le was vague when attempting to describe the house she claimed to live in with Mr Kheang and – based on the evidence before it – the Tribunal was not satisfied that Ms Le’s pattern of travel had changed since meeting Mr Kheang. Ms Le’s inconsistent evidence regarding key matters surrounding her prospective marriage to Mr Kheang, particularly in relation to the development of the relationship and the proposal raised doubts as to whether her evidence was reliable. On her own evidence she could not remember the statement purportedly provided to the Department and she acknowledged that the statutory declaration provided to the Tribunal contained incorrect information.  Based on the evidence before it, the Tribunal is not prepared to accept Ms Le’s evidence at face value that she genuinely intends to live with Mr Kheang in a spousal relationship.

4. The Tribunal finds that - 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.

   Do the parties continue to meet time of application requirements?

42.    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.  For the reasons set out in the preceding paragraphs the Tribunal is not satisfied that the parties genuinely intend to live together in a spousal relationship.  Accordingly, cl.300.221 is not met.

43.    For the second named visa applicant, Mr Blea Kheang to be entitled to a visa under clause 300.216, he must be a member of the family unit of, and have made a combined application with a person who satisfies the primary criteria.  As the Tribunal found Mr Kheang unable to meet the criteria, the second named visa applicant does not meet the requirements of the visa.

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

DECISION

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

Fiona Meagher
Member

Jane Bishop
Member