1501715 (Migration) - [2016] AATA 3138

1501715 (Migration) [2016] AATA 3138 (25 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Xuong Hung Le
VISA APPLICANT:  Ms Sophany Soun
CASE NUMBER:  1501715
DIBP REFERENCE(S):  OSF2014/051153
MEMBER:Margie Bourke
DATE:25 January 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 25 January 2016 at 1:55pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicant applied for the visa on 2 April 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 cl.300.216.
The delegate refused to grant the visa on 8 January 2015 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant and review applicant were in a genuine and continuing relationship or intended to be in a genuine and continuing relationship, and therefore was not satisfied that they genuinely intended to live together as spouses.
The review applicant appeared before the Tribunal on 25 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s cousin, and the visa applicant gave evidence via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the parties genuinely intended to live together as spouses at the time of application.
Do the parties genuinely intend to live together?
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 3138
Decision Date: 25 January 2016

CaseChat Overview and Summary

This case involves a dispute regarding the grant of a Prospective Marriage (Temporary) (Class TO) visa to a visa applicant, with the review applicant being the primary party. The matter was heard and determined by the Migration Review Tribunal. The central issue before the Tribunal was whether the parties genuinely intended to live together as spouses at the time of the visa application.

The Tribunal was required to determine whether the applicants met the requirement under clause 300.216 of Schedule 2 to the Migration Regulations that, at the time of application, the parties genuinely intended to live together as spouses. This involved assessing the applicants' intentions and commitment to a shared life as husband and wife, in line with the definition of 'spouse' provided in the Act. The Tribunal also had to consider the relevance of the parties' previous relationships and any other factors that might influence their genuine intention to live together.

The Tribunal concluded that there was insufficient evidence to establish that the applicants genuinely intended to live together as spouses at the time of the visa application. While the Tribunal accepted that the applicants had become engaged and had visited each other, it found that they did not live together as husband and wife until after the engagement. Consequently, the Tribunal decided to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa, with a direction that the visa applicant meets the criteria specified in the decision.

In summary, the Tribunal found that the evidence did not support the applicants' claim of genuine intent to live together as spouses at the time of the visa application and therefore remitted the matter for further consideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the parties genuinely intended to live together as spouses at the time of application.Do the parties genuinely intend to live together? 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. 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 visa applicant told the Tribunal that she had been married previously and the marriage had been recognised but not officially registered. The visa applicant stated she had applied for permission to marry but had never formally registered that marriage. The Tribunal has considered the divorce document provided by the visa applicant, which is consistent with the visa applicant’s evidence. The review applicant stated to the Tribunal that he had never seen a marriage certificate. The Tribunal has considered that in the Departments decision record dated 8 January 2015, a copy of which was provided to the Tribunal by the review applicant, the delegate refers to the review applicant stating that he had sighted a marriage certificate. The Tribunal accepts that the review applicant had never seen a registered marriage certificate, but may have seen other documents relevant to the visa applicant’s divorce. The Tribunal is satisfied based on the evidence before it that the visa applicant’s previous marriage and divorce was not registered formally, and the evidence available to the Tribunal does not indicate that the visa applicant cannot validly marry in Australia. Based on the evidence before it the Tribunal is satisfied that the review applicant and visa applicant were introduced to each other through the review applicant’s younger half brother. The Tribunal is satisfied that the review applicant went to Cambodia in October 2012 with the express purpose of meeting the visa applicant and spending time with her. The Tribunal is satisfied that the review applicant went to Cambodia on 16 October 2012 and return to Australia on a December 2012. The Tribunal is satisfied that the review applicant returned to Cambodia on 18 May 2013 and stayed till 5 July 2013. The Tribunal is satisfied that the review applicant returned to Cambodia in January 2014 and the parties became engaged in a ceremony on 9 February 2014. Based on the evidence before it the Tribunal is satisfied that on his visits to Cambodia that the review applicant stayed at the visa applicant’s home, and that they travelled together to Vietnam and Thailand. However the Tribunal accepts that the parties did not live together as husband and wife until after the engagement on 9 February 2014.

Decision

Reasons for decision

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 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.Margie BourkeMember

Ratio Decidendi

Legal Principle Established

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