1503207 (Migration)

[2016] AATA 3511

1503207 (Migration) [2016] AATA 3511 (8 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr VAN UT TRAN

VISA APPLICANTS:  Ms THI HA NGUYEN
Mr VAN VINH NGUYEN
Mr VAN VUONG NGUYEN

CASE NUMBER:  1503207

DIBP REFERENCE(S):  OSF2014/027580

MEMBER:Kira Raif

DATE:8 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2016 at 2:44pm

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 first named visa applicant (‘the visa applicant’) is a national of Vietnam, born in May 1978. She applied for the visa on 7 May 2014. The application includes her two children. The delegate refused to grant the visas on 6 January 2015 on the basis that the visa applicant did not satisfy cl.300.216 because the delegate was not satisfied the visa applicant and the sponsor genuinely intended to live together as spouses. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 8 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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.

5. Clause 300.215 requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period. 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.

   Do the parties genuinely intend to live together?

6. 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.

7. The Tribunal has considered the parties’ description of their meeting and the relationship development and the Tribunal considers such description implausible. The parties claim they met when the sponsor read the applicant’s advertisement in the newspaper searching for a “pen-pal”. It is unclear to the Tribunal why the applicant would be searching for a pen-pal in Australia and why she would place an advertisement in an Australian newspaper, and go to the expense of doing so, to find a pen-pal in Australia. It is unclear to the Tribunal why the applicant only wished to correspond to someone from overseas.

8. In his oral evidence to the Tribunal the review applicant stated that the visa applicant was searching for a friend but not for a partner. The Tribunal considers that evidence implausible, given the content of the ad, a copy of which the review applicant provided to the Tribunal. According to the ad, the visa applicant was searching for a male, of a certain age and with certain interests. The visa applicant expressly refers to the possibility of a relationship and mentions that she is looking for a male partner, rather than a pen-pal or a friend to talk to. The visa applicant also mentioned her interests, her age and suggests if there is compatibility, things may progress further. The Tribunal has formed the view that the visa applicant’s desire was to find a partner overseas, rather than a pen-pal or a friend to talk to, and that is the reason she decided to place an ad in a foreign newspaper.

9. Notably, in her oral evidence to the Tribunal the visa applicant said her niece suggested placing an ad and finding a friend and if the relationship progressed, they could marry. The visa applicant does not appear to have any difficulty admitting that marriage was part of her consideration. It is unclear why the review applicant consistently denied that this was the arrangement and repeatedly informed the Tribunal that the visa applicant was only looking for a friend but not a relationship. The Tribunal has formed the view that he was less than truthful in his evidence to the Tribunal.

10. It appears that the visa applicant had made the decision to obtain a visa to another country on the basis of a relationship and that is the reason she placed the ad. The Tribunal acknowledges that it is possible to have a genuine intention to marry and live together as spouses while also having an intention of migrating to another country, as the Tribunal believes the visa applicant had, but the Tribunal is concerned that the visa applicant sole purpose in entering this relationship was to get an overseas visa rather than her commitment to the relationship.

11. The Tribunal also has concerns about the very quick development of the relationship. The parties claim that they had fallen in love through their telephone conversations and the sponsor proposed marriage in January 2014. The Tribunal notes that by that time they had not met in person. There is no obvious reason why they could not have met in person first and spent some time with each other before forming any commitment to the relationship, particularly as very short period of time had passed since the first contact around October 2013 and the proposal in February 2014. The review applicant explained to the Tribunal in oral evidence that they were both lonely and had unhappy marriages and it was love at first sight. The Tribunal finds such evidence unconvincing. The Tribunal is mindful that the review applicant had been single and lonely since 2010 when he divorced, the visa applicant had separated in 2012, yet neither party had formed any other relationships. The review applicant suggested he was too scared of forming relationships since his divorce but it is unclear why all that changed so suddenly when he responded to the visa applicant’s ad. The haste with which the relationship developed and the commitment was formed adds to the Tribunal’s concerns that the arrangement was set up to enable the visa applicant to travel to Australia and that the parties’ sole motivation in entering this relationship is the visa applicant’s desire to relocate to Australia and not a genuine intention to live together as spouses.

12. The parties claim the sponsor flew to Vietnam in February 2014 to meet the applicant and her children. They claim they held the engagement on 9 February 2014. That is, the parties only spent a few days at most in each other’s company before holding the engagement an the review applicant’s evidence to the Tribunal is that they made arrangements for the engagement before he travelled to Vietnam. The review applicant’s evidence to the Tribunal is that he spent seven weeks in Vietnam on that occasion. It is unclear why the applicant and the sponsor did not wish to spend more time with each other and get to know each other better before making that commitment and arranging the engagement, particularly given the short period of time since their initial contact and lack of face to face contact. In the Tribunal’s view, the timing of these events indicates the visa applicant’s sole motivation in entering this relationship is to gain the visa. The Tribunal is not satisfied there is a genuine intention for the couple to live together as spouses.

13. The Tribunal considers it problematic that the sponsor proposed marriage in January 2014, yet to date, over two years later, the parties had not married. The Tribunal is mindful that the majority of their immediate families, including the visa applicant’s parents and all but one of her siblings and the sponsor’s siblings reside in Vietnam and are unlikely to be able to participate in the wedding celebrations if the wedding is held in Australia. Both partners spoke about their deep love for each other, yet they made no effort to register marriage for over two years since they claim to have formed commitment to marriage in January 2014.

14. The sponsor explained to the Tribunal that due to work commitments, he could not have spent three months in Vietnam that he would need to register his marriage. However, he also informed the Tribunal he had spent 12 weeks in Vietnam during the two trips, albeit on two different occasions. He has not satisfied the Tribunal that he could not take longer time off work or, if necessary, quit his job and find another job upon return to Australia. The Tribunal does not accept that the sponsor’s employment precluded him from travelling and registering marriage in Vietnam. The review applicant also suggested that he wanted to save money. The Tribunal also notes that both he and the visa applicant are employed and the Tribunal is not satisfied they had no financial capacity to pay for the marriage. The fact that the couple did not marry despite their claimed commitment to the relationship since January 2014, and the fact that they only agree to marry in Australia and not in Vietnam, suggest to the Tribunal that the visa applicant’s concern is with entering Australia rather than forming a relationship with the sponsor.

15. The Tribunal is also concerned by the very limited time the parties had spent with each other. The review applicant’s evidence to the Tribunal is that he visited Vietnam twice since he knew the visa applicant and spent about 12 weeks there, of which he spent some time with his own family. On the first occasion the couple had met for the first time and held an engagement. However, the review applicant’s oral evidence to the Tribunal is that the visa applicant continued to work in her shop on a daily basis. He explained that she had to get on with her life but could not explain why the visa applicant’s sister, who also works in the shop, could not look after the shop, at least for a few days, to enable the visa applicant to spend time with the sponsor. His evidence to the Tribunal is that in the seven week period that he had spent in Vietnam from January 2014, the visa applicant had no more than four or five days off work.

16. The review applicant made another visit to Vietnam for five weeks in November 2014. He has not travelled to Vietnam since, informing the Tribunal he was looking for work and wanted to save money. The Tribunal notes that the review applicant has been working on a part-time basis for some time. The visa applicant also has a stable income and could support the review applicant to travel to Vietnam if that was an issue. The Tribunal is not satisfied on the evidence before it that the review applicant did not have the financial capacity to travel to Vietnam.

17. The Tribunal finds that the parties had spent minimal time with each other since they claim to have formed the commitment to marriage in January 2014. The review applicant spent 12 weeks in total in Vietnam and some of that time he spent with his own family. During about ten weeks the visa applicant and the sponsor spent with each other, the visa applicant continued to work on a daily basis. While the Tribunal is prepared to accept that the review applicant lived at the visa applicant’s home, the Tribunal is not satisfied that they had established a joint household.

18. The Tribunal has considered the social aspects of this relationship. The review applicant’s evidence to the Tribunal is that he met the visa applicant’s parents and two of her siblings but had not spoken to two of her siblings at all, even though he claims to ask about them when he speaks to the visa applicant. The Tribunal considers it odd that in the two year period the couple claim to have been in a committed relationship, the review applicant made no effort to establish any communication with each of the visa applicant’s siblings.

19. Further, the review applicant informed the Tribunal that his family did not attend the engagement. He claims they had business commitments but the Tribunal is not convinced that having such commitments would have necessarily precluded them from being able to attend something so significant as the engagement ceremony, particularly as the couple plan to marry in Australia and not in Vietnam and they are unlikely to be able to participate. The review applicant also explained that his brother and sister have car sickness and could not travel. The Tribunal does not consider that to be a very good reason for the absence of the review applicant’s family at the engagement. The Tribunal is not satisfied there are good reasons for lack of contact between the visa applicant and the review applicant’s siblings. The Tribunal acknowledges the review applicant’s evidence that his daughters had visited the visa applicant and speak to her from time to time. The Tribunal is not satisfied that both families support the relationship or recognise the parties’ commitment to a long term relationship.

20. Neither is the Tribunal satisfied there is a wider recognition of the relationship. The review applicant informed the Tribunal the visa applicant introduced him to one or two of her friends but he could not state their names and did not know anything about them, claiming he did not pay attention. The Tribunal is not satisfied that people outside of the couple’s immediate family are aware of the relationship or that they support the relationship and view it as a long term one. The Tribunal acknowledges that a number of photographs and a small number of statements had been provided with the application. The Tribunal does not consider that such evidence establishes social recognition of the relationship and it does not satisfy the Tribunal that the parties planned and participated in joint social activities.

21. The review applicant’s evidence to the Tribunal is that no financial support has been provided by either party to each other, stating they both work and do not need the support.

22. The Tribunal acknowledges that much of the parties’ oral evidence to the Tribunal was consistent. However, the review applicant provided to the Tribunal a copy of the primary decision record. It shows that at the interview the visa applicant had little knowledge about many aspects of the review applicant’s daily life. In such circumstances, the Tribunal is concerned that the visa applicant has simply memorised the information about the visa applicant following the adverse findings by the delegate.

23. Overall, the Tribunal has considerable concerns about the very quick development of the relationship and the visa applicant’s motivations in entering this relationship. The Tribunal has formed the view that the sole reason for her decision to enter into the relationship with the sponsor is to obtain the Australian visa. While the Tribunal acknowledges that this does not necessarily deny the existence of a genuine relationship, in this particular case, the Tribunal is not satisfied that there is a mutual commitment to the relationship and a genuine desire to live together as spouses. The Tribunal finds that there is minimal social recognition of the relationship. At best, it is limited to the parties’ immediate families and the Tribunal is not satisfied the parties have informed their friends, colleagues or others about their relationship. There is no financial support being provided by either party to each other and the Tribunal has found that the parties have spent minimal time together.

24. Having considered all the circumstances of the relationship, the Tribunal is not satisfied that the parties have, or had at the time of the application, a genuine intention to live together as spouses. The Tribunal is not satisfied that the visa applicant meets cl.300.216 and cl. 300.221.  

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member