1503292 (Migration)

1503292 (Migration) [2016] AATA 4885 (14 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms MEI LY
VISA APPLICANTS:  Mr KIMENG VA
Mr RATANA VA
Mr SAREN VA
Mr SARAN VA
CASE NUMBER:  1503292
DIBP REFERENCE(S):  BCC2014/930468
MEMBER:D. Dimitriadis
DATE:14 November 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 14 November 2016 at 1:54pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Whether the visa applicant and review applicant genuinely intend to live together as spouses – Limited evidence of joint finances – Limited evidence of ongoing relationship – Witness credibility - Significant inconsistencies in evidence
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15A, Schedule 2, cls 300.216, 300.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicants applied for the visas on 7 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 visas on 2 January 2015 on the basis that the first named visa applicant (the visa applicant) did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the review applicant and the visa applicant genuinely intend to live together as spouses.
The review applicant appeared before the Tribunal on 18 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant on the telephone. The Tribunal also took evidence from witnesses, Kong Taing, Simara Put, Vann Nea Ro and Sokha Peung who attended the hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer (Kampuchean/Cambodian) and English languages.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Information in the records of the Department of Immigration (the Department) is that the visa applicant previously applied for a Prospective Marriage visa (Subclass 300) on 22 June 2010. He was sponsored by the review applicant.
Information in the Department’s file is that the visa applicant was interviewed by an officer of the Department on 26 October 2010. In a statement on the Department’s file dated 27 October 2010, the visa applicant sought to correct information he had provided at the interview at the Australian Embassy where he had given the incorrect ages of the review applicant’s children. He had stated the year of birth of the review applicant’s daughter as being 2006 whereas it was in fact 1996, some 10 years earlier. He realised that it was incorrect as he had met the review applicant in 2005, knew that she was divorced in 2002 and also knew that she was not pregnant at the time he met her. He stated that he knew her children were actually born in 1992 and 1996.
The visa was refused on 3 February 2011 and the review applicant applied to the Migration Review Tribunal (MRT) for review of the decision to refuse the visa. The MRT affirmed the decision to refuse the visa on 14 January 2013.
The visa application
In the visa application (the subject of this review), the visa applicant stated that he was born in 1961 in Cambodia and is a Cambodian national. He is engaged to the review applicant and the date of the intended marriage is 4 April 2015. The visa applicant has four children from a previous relationship. The second, third and fourth named visa applicants are children of the visa applicant and were over the age of 18 years. The visa applicant stated that the sponsor (the review applicant) arrived in Australia in 1991 and is an Australian citizen by grant. The visa applicant stated that he was refused a Subclass 300 visa on 3 February 2011. He is being sponsored by the review applicant.
The visa applicant stated that he was previously in a relationship and that relationship ended in January 2007. The visa applicant stated that the review applicant was previously married and has two daughters. The review applicant is divorced.
The visa applicant provided a number of documents to the Department including copies of the following:
·Receipts for tuition fees and student cards;
·Letter dated 3 April 2014 from Natalie D Olive, Celebrant, stating that the date of the intended marriage is 4 April 2015;
·Photographs;
·Statement dated February 2014 from the review applicant;
·Statutory declaration declared on 9 March 2014 by the review applicant’s mother, Kong Taing;
·Statutory declaration declared by Simara Put on 20 March 2014.
In a statement dated February 2014, the review applicant stated that she met the visa applicant when she went to Cambodia in 2005 with her mother. The visa applicant was working as a taxi driver and they hired him to drive them around. The review applicant and her mother returned to Cambodia in 2006 and again hired the visa applicant to drive them around. The visa applicant gave the review applicant his telephone number. After the review applicant returned to Australia, he rang her and told her that he had separated from his then partner in about 2007. They had more and more contact and by 2008 they were in regular contact. Their relationship developed and the visa applicant asked her to marry him by 2009 but she wanted to think about it. The review applicant’s mother thought the visa applicant would be a good husband and the review applicant and her mother went to Cambodia in 2010. The visa applicant and the review applicant were engaged on 28 February 2010. The review applicant stated that they stayed together in a hotel in Phnom Penh and then travelled around Cambodia to Siem Reap and Kompong Som. In 2011 the review applicant was studying for a diploma as a beautician and wanted to complete the course before she returned to Cambodia. She went to Cambodia in February 2012 for two weeks. She returned to Cambodia in May 2013. When they are apart, they maintain regular contact by telephone. The review applicant stated that the visa applicant usually calls her from Cambodia because it is cheaper. She supports him financially because he does not have much money and he has three sons to support. The review applicant works full-time in a salon and it is hard for her to get long periods of holidays. Their intention is to marry in Australia.
In a statutory declaration declared on 20 March 2014, Simara Put stated that the visa applicant is her cousin and when she travels to Cambodia she usually sees him and his children. She knows the review applicant through the review applicant’s mother. The review applicant and her mother met the visa applicant in Cambodia in 2006 and she heard in 2008 and 2009 that the review applicant and the visa applicant were talking on the phone. Ms Put heard from the review applicant’s mother that the review applicant wanted to marry the visa applicant. Ms Put is convinced that they intend to be a genuine couple.
In a statutory declaration declared on 9 March 2014, the review applicant’s mother, Kong Taing, stated that she went to Cambodia in 2005 with the review applicant who hired the visa applicant to take Ms Taing around. In 2006 the review applicant and Ms Taing again went to Cambodia and the review applicant hired the visa applicant to drive them around. In 2008 and 2009 the review applicant spoke many times to the visa applicant on the telephone and she told Ms Taing that she wanted to marry the visa applicant. The review applicant and her mother went to Cambodia in 2010. On 28 February 2010 the review applicant had an engagement ceremony. Ms Taing stated that “[w]e stayed in a hotel together in Phnom Penh”. The review applicant, Ms Taing and the review applicant’s daughter travelled to Cambodia in February 2012. Ms Taing is convinced that they intend to be a genuine couple.
The delegate refused the visa and was not satisfied that the visa applicant met cl.300.216. The delegate stated that the visa applicant and the review applicant were interviewed on 7 October 2014. Information in the delegate’s decision record is that:
·The visa applicant and the review applicant stated that the review applicant supports the visa applicant and his children financially but no evidence of this has been provided.
·The visa applicant stated that the review applicant stayed in a hotel during her visits in 2013 and 2014 because his house is very hot and he has only one fan so that the review applicant preferred to stay somewhere with air conditioning. The review applicant confirmed this but stated that the visa applicant stayed with her.
·The visa applicant had only a superficial understanding of the review applicant’s circumstances although they claimed to have been engaged for over 4 years and claimed to have had ongoing contact.
·It was not clear if Ms Put, who provided a Statutory Declaration, has seen the visa applicant and the review applicant together.
·The visa applicant stated that he has no friends so that the review applicant has not met any. The review applicant’s statement in this regard did not match those of the visa applicant. The visa applicant was unable to provide details of the review applicant’s friends in Australia.
·The visa applicant and the review applicant have spent less than 3 months together since they were engaged 4 years ago.
·Despite knowing each other for 9 years and being engaged for 4 years, their knowledge of each other was limited and they had spent little time together overall.
·The delegate stated that the statements and development of the relationship between the visa applicant and the review applicant are characteristic of a contrived relationship that has been entered into for the purposes of achieving residency in Australia.
The application for review
On 11 March 2016 the Tribunal wrote to the review applicant and invited her to a hearing on 18 May 2016.
On 9 May 2016 the Tribunal received a number of documents from the representative including copies of the following:
oPhotographs;
oPages from the review applicant’s current and former Australian passports;
oLetter dated 4 May 2016 from Natalie D Olive, Celebrant, stating that the marriage is intended to take place on such date as may be agreed subject to the prospective spouse’s arrival in Australia;
oStatutory declaration declared on 17 April 2016 by Vann Nea Ro who stated that the visa applicant and the review applicant came to her engagement party in Cambodia in June 2015 and she had dinner with them in Cambodia;
oStatutory declaration declared on 17 April 2016 by Sokha Peung about the genuineness of the relationship between the visa applicant and the review applicant;
oStatutory declaration declared on 1 May 2016 by Kong Taing who repeated her statements from her Statutory Declaration of 9 March 2014 and also stated that the review applicant has been to Cambodia several times since 2012 and each time she stayed with the visa applicant;
oStatutory declaration declared on 1 May 2016 by Simara Put who stated that she went to the engagement of her daughter, Vann Nea Ro, in June 2015 in Cambodia and the visa applicant and the review applicant were there together. On her visit to Cambodia earlier this year, Ms Put took money, including $US500, to her cousin (the visa applicant) for the review applicant. Ms Put stated that she knows they are genuine because she has seen them together and has spoken with them about their plans to marry in Australia. Ms Put knows that the review applicant has visited the visa applicant a number of times since they first became engaged in 2010 and she has seen them together at the property in Battambang where the visa applicant lives, as well as at social functions together and at his house.
In a submission dated 9 May 2016 the representative provided a timeline of the immigration history and relevant dates and stated that the visa applicant left school around Year 5 and he has no other formal education. He was working as a taxi driver when he met the review applicant and he is currently working on a rural property in Battambong province in western Cambodia. The visa applicant has four children and three (the second, third and fourth named visa applicants) are students and are still dependent on the visa applicant. The visa applicant and the review applicant met in 2005 and the relationship developed after the visa applicant’s separation from his former partner in 2007. The visa applicant and the review applicant decided to get married and the relationship is approved by each family. The visa applicant and the review applicant had a traditional ceremony in Cambodia in February 2010 and their intention is to marry in Australia. After the MRT affirmed the first application in 2013, the visa applicant and the review applicant decided to lodge the application again in April 2014. Since the refusal by the MRT the review applicant has been to Cambodia to spend time with the visa applicant in 2013, 2014 and 2015. The review applicant works full-time and has limited chance to obtain paid leave “apart from the statutory leave.” The representative stated that since the engagement they have spent some time together in most years since then, including a holiday to Thailand in June 2013. The visa applicant and the review applicant maintain regular contact and the review applicant has sent the visa applicant money.
The representative stated that the visa applicant and the review applicant have met in person since turning 18 years of age. The review applicant is an Australian citizen. They have an intention to marry and there is no impediment to that marriage. The representative stated that the focus by the delegate on assessing against the criteria in r.1.15A is misplaced and arguably ultra vires. The only reference to ‘spouse’ in the visa criteria is the intention ‘to live together as spouses’ and not that they are spouses at time of application or decision.
On 10 May 2016 the Tribunal received from the representative a statutory declaration declared on 10 May 2016 by the review applicant who stated that she met the visa applicant in 2005 in Cambodia and she hired him to take her mother and her around. In 2006 she returned to Cambodia and again hired the visa applicant to drive her and her mother around. After she returned to Australia, the visa applicant called her and spoke about how he separated from his wife in 2007. They gradually had more contact and in 2008 they started to discuss their relationship and their feelings for each other. They kept in contact by phone throughout 2008 and 2009 and by 2009 she had decided to marry the visa applicant. He had asked her to marry him but she wanted to think about it for a while. The review applicant’s mother approved of the relationship.
The review applicant stated that she went to Cambodia in February 2010 and they had an engagement ceremony on 28 February 2010. They stayed together in a hotel in Phnom Penh and travelled to places, including Siem Reap and Kompong Som. The review applicant stated that in 2011 she was studying for a beautician Diploma and wanted to finish the course before she visited Cambodia again. Her next visit to Cambodia was in February 2012 for 2 weeks. She could not take more time because she had recently started a new job. Since then she has been to Cambodia on a number of occasions. These were from 28 May to 13 June 2013 (including a visit to Thailand together from 1 June to 5 June 2013), 1 October to 13 October 2014 and 7 June to 21 June 2015. In Cambodia she spends all the time with the visa applicant and they have stayed at hotels together on her visits. They have been in regular contact by telephone and speak nearly every day. She has sent money to the visa applicant through people she knows who are visiting Cambodia. The review applicant sent $US500 to the visa applicant in April 2016 through a friend, Simara Put, when she was visiting Cambodia. She has also sent him perfume and medicine. The review stated that she and the visa applicant plan to marry in Australia and live together in Australia.
On 16 May 2016 the Tribunal received from the representative copies of telephone accounts for the review applicant covering periods from October 2014 to March 2016 and photographs. The representative stated that the records show two telephone numbers for the visa applicant. The visa applicant had the telephone number (ending in 614) until January 2015 and the other telephone number (ending in 760) from January 2015.
The Tribunal hearing
The review applicant stated that she is a beautician and she works casual part-time. She works 4 or 5 days a week. She obtained her Certificate III, Certificate IV and Diploma in Australia.
The review applicant confirmed that the visa applicant had applied for the visa and was refused. The review applicant went to Thailand in 2005. She met the visa applicant on the Thai Cambodian border. She rented his car and went to Phnom Penh and continued to rent his car to transport her around. The review applicant stayed at a hotel in Phnom Penh. She went to Kompong Som (sic) province. The visa applicant drove a taxi. The review applicant asked for his phone number in case she went back to visit Cambodia. She noticed that he was a gentleman and the rent he charged her was reasonable. She went back to Phnom Penh in 2006 and called him to rent his car again. Then she returned to Australia and he called her to ask about her well-being. In 2007 he divorced his ex-wife. He called the review applicant and asked about her well-being and told her about his situation. In 2008 she went to visit Cambodia and rented his car again. The review applicant and the visa applicant were more friendly after the visa applicant divorced his wife. They talked about life. After she returned to Australia, the visa applicant told her that he loved her and asked her to marry him. The review applicant was thinking but did not make her decision yet. Her mother agreed that he was kind, respectful and a good person. In 2010 the review applicant decided to return to Cambodia in order to arrange the engagement. On 28 February 2010, they became engaged. Her mother attended and his friends and relatives attended the engagement. After the engagement, she came back to Australia.
In 2011 the review applicant did not visit Cambodia because she was busy with study for the Diploma. She was also working in work placement to complete her certificate. She went to Cambodia again in 2012. She did not live at the visa applicant’s place and stayed at a hotel. She was worried about the hot weather and the electricity supply. The visa applicant lived with her at the Hotel Asia as husband and wife in 2012. In 2013 the review applicant went back to Cambodia and she stayed at Hotel Asia and the visa applicant spent the whole time with her in that hotel as well. In 2014 she went back again and she stayed at the same place and the visa applicant stayed there with her.

The review applicant stated that they went together to a lot of places, including Kompong Som, Bokor Mountain and Angkor Wat. They also went to Thailand by bus with a tour guide. Her mother went with her as well.
The Tribunal informed the review applicant that it has not seen any of the documentary evidence of hotel stays or of the bus trip. The review applicant stated that she has receipts.
In 2015 she went to Cambodia. They went to Kirirom where there is a waterfall.
The Tribunal asked the review applicant why she has not married the visa applicant. The review applicant stated that she is waiting for him to come to Australia. She celebrated their engagement in Cambodia. She wants to get married here. She has lots of friends, family and her mother here and that is why she wants to marry in Australia.
The review applicant stated that, of her two daughters, her older daughter has met the visa applicant once. The review applicant went to a wedding with her daughter, her mother, the visa applicant and all of his sons. She cannot remember if it was the visa applicant’s friend or cousin. It was a woman. She cannot remember this person’s name.
The review applicant stated that they also went to the engagement party of the witness. Outside they call her “Sveung” (sic) (thin one). The review applicant did not appear to know her name. The Tribunal brought to the review applicant's attention that she has brought this witness to give evidence but she does not know her name. The review applicant stated that she knows her mother for a long time because her mother and the visa applicant are cousins but the review applicant and the witness only meet once in a while. This young woman became engaged in Cambodia last year. She does not know what her name in her passport is.
Both the review applicant’s daughters live separately from the review applicant. The younger daughter is 20 years old and she lives with the review applicant’s brother. The older daughter is married and lives with her family. The younger daughter moved out more than 2 years ago. She does not want to go to Cambodia. She went once when she was 5 years old. She was bitten by mosquitoes and had diarrhoea.
The Tribunal brought to the review applicant's attention that, at the time the visa applicant previously applied for the visa in June 2010, her younger daughter was living with her. The review applicant agreed that her younger daughter was living with her in 2010. The Tribunal informed the review applicant that it is a little surprising that her younger daughter had not met the visa applicant whom the review applicant was sponsoring and who would be living in the review applicant’s home. The review applicant stated that she wanted her daughter to go to Cambodia to meet him but she did not want to go. The younger daughter has talked to the visa applicant on the telephone but she cannot speak much Cambodian. They talk a little bit. The younger daughter is happy with the review applicant’s fiancé.
The review applicant confirmed that she has stated that she is supporting the visa applicant and his children financially. She sends some money, sometimes 1,000 a month and sometimes 500 a month. The last time she sent money was last month when Simara, the cousin, went back to Cambodia and the review applicant sent US$500 to him.
The review applicant stated that she has receipts for sending money. The Tribunal informed the review applicant that it has not seen any receipts for transfer of money. The review applicant stated that she went to the small Cambodian shop in Cabramatta and paid a $10 fee for the transfer. The review applicant stated that the money is transferred to their relative and the visa applicant picks up the money from the store in Cambodia.
The Tribunal brought to the review applicant’s attention that this visa has been refused before and asked why she did not send money through the bank or through some other means where there are records. The review applicant stated that the visa applicant does not have a bank account. He lives in a village. He used to live in Phnom Penh for a few years. She asked him but he said he does not have a bank account.
The Tribunal asked the review applicant if she has evidence of withdrawing funds out of her bank account and receipts for the transfer of that money from the shop in Cabramatta. The review applicant stated that she only has receipts that she gave them the money in Cabramatta and the receipts have her name and the visa applicant’s name on them and the amount. There are a few receipts that she has kept. The Tribunal asked the review applicant if there is evidence that she withdrew the money from her bank account. The review applicant stated that she withdraws cash every day.
In April, the review applicant gave Simara cash. It was in U.S. dollars. The review applicant went to the bank and exchanged money into U.S. dollars. The Tribunal asked the review applicant if she has evidence of that. The review applicant stated that she does not know where she put the receipt. She can find the receipt.
The Tribunal brought to the review applicant's attention that she is supporting the visa applicant and his sons but the Tribunal has not seen any documentary evidence of this. The review applicant stated that she has the receipts. The Tribunal informed the review applicant that she can provide these after the hearing.
The review applicant stated that she has sent medicines for a stomach ulcer and eye drops for his eyes and ‘Panamax’ for headache and fever. These are for the visa applicant and for his relatives and friends. She carries those over there and so does her mother. The review applicant does not send eye drops any more because the visa applicant had eye surgery and it was cured in Phnom Penh. Australian doctors went there and helped with people’s eye problems.
The Tribunal informed the review applicant that it has not seen hotel receipts that they stayed together. The review applicant stated that she has the receipts.
The Tribunal brought to the review applicant's attention that in the last visa application there were inconsistencies in the visa applicant’s and the review applicant’s evidence. The Tribunal informed the review applicant that at the hearing held by the MRT on 12 September 2012 she stated that in her regular discussions with the visa applicant, she did not tell him of problems in her life or tell him if she is upset about something. However, the visa applicant stated that the review applicant often talked to him when she was upset and they discussed things. The review applicant stated that she used to tell him that she was not happy because it took so long for him to come here and she was upset that he was not able to come here.
The Tribunal asked the review applicant why she told the MRT that she did not tell him of problems in her life. The review applicant stated that she did not want to tell him personal things that she got upset about or problems with her life because she did not want him to be unhappy about the problem. She told the MRT that she did not tell him about the problems in her life. She did not tell him about problems because she did not want to make him unhappy. Sometimes, when she was upset about the length of time that it took to bring him here, she told him about that but did not tell him about problems in her personal life because she did not want him concerned about that.
The Tribunal informed the review applicant that she stated at the MRT hearing that she sends $100 or sometimes $200 to the visa applicant every month or second month. The review applicant stated that this was six years ago at the beginning. She sent the money after she got engaged. The review applicant stated that recently she sent $500 or $1,000 and she has the receipts and the witness.
The Tribunal asked the review applicant if she was sending money to the visa applicant when she was studying and not earning very much. The review applicant stated that at that time she was not sending that much, a few hundred dollars a month. When she started working, she had the money, and she saved and she sent $500 or $1,000.
The review applicant finished her Diploma course at the end of 2011 or beginning of 2012. She cannot remember when she finished because she is very busy. She forgets things easily. The Tribunal informed the review applicant that it has not seen evidence of her diploma. The review applicant confirmed that she did the course full-time for 2 years.
The Tribunal informed the review applicant that she has claimed that she sent this money, but there is no documentary evidence that she sent $100 or $200. The review applicant stated that there are no receipts for these ones. The Tribunal informed the review applicant that she has claimed to have sent this money at a time when she was studying full-time and not earning very much money. The review applicant agreed. The Tribunal asked the review applicant how she could afford to send money to the visa applicant. The review applicant stated that she sent money but she sent only a few hundred dollars, sometimes two and sometimes three. It depended on how much she had. The review applicant’s daughter was living with the review applicant at that time and the review applicant was supporting her as well. The review applicant stated that at that time she was not working and she had some government money and the government gave her daughter money as well.
The review applicant stated that she sends the money through friends who are visiting Cambodia as she prefers to do this rather than use electronic transfers. The money is used to help support the visa applicant’s sons. There are no records for these gifts of money.
The Tribunal informed the review applicant that at the MRT hearing, there was an inconsistency about the money that was sent and the review applicant stated that she sends $100 or sometimes $200 to the visa applicant every month or second month but the visa applicant said that he had not received any money in the last 6 months, and when asked if she had sent any money in the last 12 months, he said he could not remember. The review applicant stated that sometimes he could not remember because she sent money many times and sometimes through a friend who went to visit there.
The review applicant stated that she was divorced in 2002. The Tribunal referred the review applicant to the visa application in which it was stated that she divorced in 2000. The review applicant stated that she divorced in 2000.
The Tribunal referred the review applicant to the telephone bills that she has provided to the Tribunal and informed the review applicant that it does not appear that there are any on the Department’s file. The Tribunal asked the review applicant if there is any evidence, before the telephone bill that she provided for 2014 of their communication together. The Tribunal asked the review applicant if she had any evidence of her communication from 2008 to 2014 during all those years that the review applicant claimed to be in communication with the visa applicant. The review applicant stated that she did not keep any from that time.
The Tribunal asked the review applicant if the earliest record of telephone communication is in 2014. The review applicant stated that she thinks that she gave some evidence for 2012 and 2013. The Tribunal informed the review applicant that it had been through the documents but did not think that there were any before 2014 on the Tribunal file or the Department’s file. The Tribunal informed the review applicant that she may have those documents but the Tribunal has not seen them. The review applicant stated that she does not have any at home. She can talk to her solicitor.
The Tribunal informed the review applicant that she has made overseas calls and asked which is the visa applicant’s number and asked for the last 3 digits. The review applicant stated that the visa applicant changed his phone number a few times. Her Vodaphone account is a mobile phone account. His is prepaid. She does not have a landline. Her mother does not have relatives in Cambodia. She has a paternal aunt. Not all the calls to international numbers are to the visa applicant. Sometimes the review applicant’s mother borrows the phone and calls her friends.
The review applicant stated that she went to Cambodia once in 2008. She departed Australia on 2 November 2008 and returned on 26 November 2008. The Tribunal asked the review applicant if she did not return to Cambodia again until February 2010. The review applicant stated that she got engaged on 28 February 2010. The review applicant stated that it was during that period, from 26 November 2008 when she returned to Australia to February 2010 when she went to Cambodia, that she decided to marry.
The review applicant stated that she has no evidence of her contact from the time they met in 2005 until they were engaged in 2010. It was a long time ago, more than 10 years ago. She did not keep any phone bills. He never sent her a card. He called her. They only contacted by phone. The visa applicant called her as well and he used prepaid phone cards.
The Tribunal asked the review applicant if they ever communicated by email. The review applicant stated that the visa applicant does not know how to use a computer or email. He does not know how to speak English and the review applicant does not write much in Cambodian. They only talk by phone. The visa applicant has a mobile phone. They do not send text messages. They just talk. The visa applicant’s son is studying English. The visa applicant is not studying English. He only does farm work.
The review applicant has met the visa applicant’s three sons many times. They speak English. She sends text messages to the older son.
The Tribunal brought to the review applicant's attention that the visa applicant was interviewed twice by the Department, the first time for the first visa application and the second time for the second visa application. The Tribunal informed the review applicant that in the first interview on 26 October 2010, the information is that the visa applicant appeared to know little about her life in Australia. The review applicant stated that they talked but she did not tell him about her friends and family problems. The Tribunal informed the review applicant that the visa applicant did not know her children’s ages. The review applicant stated that he was confused at that time. She told him, but he was confused. The Tribunal informed the review applicant that the visa applicant gave incorrect information about the ages and dates of birth of his own children.
The review applicant stated that the visa applicant’s children live together in Phnom Penh. They have a house which belongs to the visa applicant’s daughter. They do not live with the visa applicant on the farm. They are each studying English. Saran Va is 24 years old and he was born in 1992. He is studying English full-time, she thinks. He is not working. She does not know why he is not working. She does not know what school he is attending but it is in Phnom Penh. The middle son is also studying English. She thinks he goes to the same school as his brother. They study English only. He is 22 years old and was born in 1994. He does not work either.
The Tribunal asked the review applicant if she has provided any evidence about the courses that the visa applicant’s sons are doing. The review applicant stated that she provided a receipt. The Tribunal informed the review applicant that the receipts do not tell the Tribunal very much. The review applicant stated that it shows the name of the school. All the boys have finished high school. The youngest was born in 1996 and is 20 years old. He is also studying English full-time. The Tribunal informed the review applicant that it has no evidence that the visa applicant’s sons are full-time students. The Tribunal acknowledged receiving receipts but stated that it does not say the boys are full-time students. The Tribunal informed the review applicant that the receipts are dated September 2014. The review applicant stated that they are still studying.
The last time she talked to the fourth named visa applicant was the day before the hearing. None of the sons of the visa applicant is working. The visa applicant is supporting them financially.
The review applicant asked that the visa applicant be allowed to come here. It has been over 6 years. It is very hard for her to send money over to him. She spends a lot of money on the phone and she sends money to him.
The review applicant lives in a 4 bedroom house and she lives with her mother and her younger brother. That leaves one extra bedroom for the boys and a big living room. They have said that they can sleep wherever they can, as long as they can be together and be a family.
The review applicant stated that if the visa applicant is not granted the visa she cannot go and live in Cambodia because her mother lives with her and she has heart problems. Sometimes she is sick at night and the review applicant has to call an ambulance. Also her two daughters live here and the review applicant has lived here for 25 years. She is more used to Australia than Cambodia. The review applicant has two daughters who were born here. She has one granddaughter.
The review applicant stated that they have not bought any major assets together. When the visa applicant comes to Australia they can join their accounts together.
The review applicant stated that when she and the visa applicant go to a hotel to stay together, it is the review applicant who pays for the hotel. She has always paid. The visa applicant wants to pay but she says that she will pay.
The Tribunal informed the review applicant that in the delegate’s decision record for this visa application, it is recorded that the visa applicant stated at the interview that he has no friends so that the review applicant has not met any of them. The review applicant stated that the visa applicant has friends and he is confused. She has met some of his friends. He told her that when he is nervous he forgets everything. The Tribunal informed the review applicant that if he has friends, it is surprising that he said that he does not have friends. The review applicant stated that she asked him why he said he had no friends and she had met his friends and he said he could not remember and he was sorry. He said that every time he is nervous, he forgets everything.
The review applicant stated that the visa applicant grows a root vegetable out of which you make flour. He sells the root vegetable to Thailand or somewhere. Thai people come and buy. It is the visa applicant’s farm. The review applicant has been there many times. It is about 14 ha. He also grows mango trees.
The review applicant stated that they stay together as husband and wife. They call each other every day. When she goes back to Cambodia, they stay together, live together in the hotel like husband and wife. They have been separated for more than 6 years.
The Tribunal informed the review applicant that there is a lack of documentary evidence supporting what she is saying. There is little evidence of communication, including telephone records, before 2014. The Tribunal informed the review applicant that she claimed that she is supporting the visa applicant financially but the Tribunal has no documentary evidence of that. The review applicant stated that she has some receipts and will provide them. The Tribunal informed the review applicant that it is has not seen evidence that they stayed together in hotels. The Tribunal informed the review applicant that it has some concerns.
The Tribunal brought to the review applicant's attention that at the MRT hearing, she gave evidence that after their engagement ceremony, they went away for two weeks to Kompong Som and they lived together at this time, but the visa applicant said that they did not live together as this was against their custom. The review applicant stated that she talked to the visa applicant who said that he protected her because in Cambodia if you are not married and you live with the girl, it is not a nice word to say. She explained that in Australia you make it clear and he said he understands.

The Tribunal took evidence on the telephone from the visa applicant who stated that he previously worked as a taxi driver. Now he works on his farm. He grows a root vegetable and mango trees.
The visa applicant stated that his sons are all studying English full-time at school. The youngest son is at a different school. None of them is working. The oldest son is 24 years old. The three boys study at different schools. The Tribunal asked the visa applicant if his oldest son has ever worked. The visa applicant stated that he always studies and has not finished his studies. The course he is doing is an English Certificate. The course takes 7 to 8 years to complete. The course that his middle son is doing is 7 or 8 years long. The course that his youngest son is doing is 7 or 8 years long. The Tribunal informed the visa applicant that it seems a long time to be studying an English course. The visa applicant stated that over there, there are 12 levels.
The visa applicant stated that in 2005 the review applicant went to visit Cambodia and she hired his car. In 2006 the review applicant visited Cambodia and hired his car again. In 2007 he divorced his ex-wife. In 2008 the visa applicant started a serious relationship with the review applicant and he fell in love. In 2009 he proposed and she agreed to marry him. In 2010 they had the engagement. On 28 November 2010 they promised to register the marriage certificate in Australia.
The Tribunal informed the visa applicant that they have been talking about getting married for a while and asked why they had not married. The visa applicant stated that it is because he was not granted a visa and he cannot come to Australia to marry. The Tribunal brought to the visa applicant's attention that he can marry in Cambodia. The visa applicant claimed that they had the engagement in Cambodia but he wants to marry in Australia because his wife’s family and her mother are there. The Tribunal informed the visa applicant that they can marry in Cambodia and Australia and asked why they had not done that. The visa applicant stated that her family wants her to marry in Australia because they cannot join the visa applicant and the review applicant over there.
The visa applicant stated that in 2012 the review applicant came to visit him and they went to several places including Kompong Som.
The visa applicant stated that the review applicant sent him medication such as eye drops, fever medication, stomach ulcer medication and other medication through friends and other people. In 2013 the review applicant came to visit him again for 3 weeks.
The Tribunal asked the visa applicant if he wanted to say anything about his relationship with the review applicant. The visa applicant stated that they always talk to each other and ask about the well-being of the family and each other. In 2013 they went to Thailand for 5 days. In 2014 she visited the visa applicant for 2 weeks and they went to Bokor Mountain and other places. In 2015 she came to Cambodia again and visited the farm. She has visited the farm three times.
In 2016 the review applicant did not visit the visa applicant because she was busy with her Beauty studies and she went to Korea.
The visa applicant stated that it has been 6 years since their relationship started. Communication costs a lot of money. They live apart and are not happy. They ask that the Tribunal reunite them as a family.
Ms Vann Nea Ro, the daughter of Ms Simara Put, stated that she is here to witness that the visa applicant and the review applicant are husband and wife. The visa applicant and the review applicant went to her engagement on 10 June 2015. They had dinner together at the review applicant’s husband’s house. He is Ms Ro’s uncle or cousin. The Tribunal brought to Ms Ro’s attention that the visa applicant and the review applicant are not married. Ms Ro stated that it is a tradition in Cambodia, that when people have been together they are called husband and wife. They are engaged. Ms Ro stated that they went to dinner a couple of times together, once at the visa applicant’s house in Phnom Penh. They also met at a party at a friend’s house. They met three times altogether. Ms Ro stated that she knows the review applicant because the review applicant came to her mother’s house a couple of times. Normally they do not talk much. Ms Ro stated that they had a dinner party at the house of Sokha Peung’s daughter. That is where they had dinner together as well. The visa applicant and the review applicant were also there.
Ms Simara Put gave evidence that it is a genuine engagement and the review applicant and the visa applicant have been engaged for a long time. They have lived separately for many years and Ms Put asked that the Tribunal help them. Ms Put stated that the visa applicant and the review applicant have loved each other for many years but they live apart.
Ms Kong Taing gave evidence that she is the mother of the review applicant. Ms Taing asked that the Tribunal help to bring her in-laws here as soon as possible. She is old and has many sicknesses and she worries that she might not see her in-laws. She returned to Cambodia last year. She has travelled several times to Cambodia with the review applicant.
Sokha Peung gave evidence that the visa applicant and the review applicant have been engaged for many years. They are genuinely engaged. She has not seen both of them together. She did not go to Cambodia. Ms Peung has not been in Cambodia at the same time and met the visa applicant. She knows that they went to have lunch at her daughter’s house in Cambodia. Her daughter’s name is Dalin Do. They went to have lunch to commemorate the passing away of Ms Peung’s husband.
The Tribunal allowed until 26 May 2016 for further evidence and submissions to be made. The Tribunal informed the review applicant that it does not have the Department’s file or the Tribunal file of the previous visa application and informed the review applicant that if documents were provided to the Department or the Tribunal in the previous visa application, they should provide those documents. The Tribunal also asked if there were documents about the secondary visa applicants being full-time students, she should provide those.
The Tribunal received a request from the representative on 23 May 2016 for an extension of time to which the Tribunal agreed. The Tribunal informed the review applicant in an email that further submissions should be provided to the Tribunal by 3 June 2016.
On 26 May 2016 the Tribunal received a number of documents from the representative including copies of the following:
·Receipt for a Thai holiday for the visa applicant and the review applicant dated 27 May 2013;
·Six pages of the visa applicant’s Cambodian passport;
·Hotel receipts for the Asia Hotel in Phnom Penh in both the names of the visa applicant and the review applicant from 14 February 2010 to 16 March 2010,1 October 2010 to 13 October 2010, 6 February 2012 to 21 February 2012, 26 May 2013 to 16 June 2013 and 7 June 2015 to 21 June 2015;
·Money transfer from the review applicant to the visa applicant on 20 May 2013, 19 August 2013, 5 November 2013, 2 February 2014 and 12 July 2015;
·Telephone accounts for March 2013 and from September 2013 to April 2014;
·Letter dated 19 May 2016 from the Westline School stating that the second named visa applicant has been studying English from 6 May 2013 to the present;
·Student certification dated 23 May 2016 stating that the third named visa applicant is attending the diploma program at English Language Teaching Institute in Phnom Penh;
·Letter dated 19 May 2016 from Pannasastra University of Cambodia stating that the fourth named visa applicant was a student in the Intensive English for Academic Purposes program, there are 5 levels and he successfully completed Level 4 on 22 December 2014.
On 24 August 2016 the Tribunal received from the representative telephone accounts for the review applicant from April to July 2016.
On 27 August 2016 the Tribunal received from the representative a money transfer from the review applicant to the visa applicant on 17 July 2016.
On 30 August 2016 the Tribunal wrote to the review applicant and invited her to comment on or respond to information which the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. The Tribunal informed the review applicant that the particulars of the information are:
·     You and the first named visa applicant (the visa applicant) claimed to have met in Cambodia in 2005 and 2006 when you hired the visa applicant as a driver. The visa applicant contacted you in October 2008 and you claimed to have kept in regular contact. In November 2009 the visa applicant asked you to marry him, approximately 3 years after you last met in person.
·     In an interview conducted by the Department of Immigration on 26 October 2010 for a previous Subclass 300 visa application lodged by the visa applicant, the visa applicant could not give accurate details about the ages of your children and appeared to know little about your life in Australia. The visa applicant also gave incorrect answers regarding the ages and dates of birth of his own children.
This information is relevant to the review because the visa applicant’s lack of knowledge about your children and about your life in Australia, even though you claimed to have kept in regular contact, might lead the Tribunal to conclude that you and the visa applicant have not told the truth about the inception and development of your relationship. This might lead the Tribunal to find that you and the visa applicant do not genuinely intend to live together as spouses.
·     At the hearing held on 12 September 2012 by the Migration Review Tribunal (MRT) to review the refusal of the visa applicant’s previous Subclass 300 visa, you stated that in your regular discussions with the visa applicant, you did not tell him of problems in your life or tell him if you are upset about something. However, the visa applicant stated that you often talked to him when you were upset and you discussed things.
·     At the MRT hearing, you said that you send $100 or sometimes $200 to the visa applicant every month or second month but the visa applicant said that he had not received any money in the last 6 months and when asked if you had sent any money in the last 12 months, he said he could not remember.
·     At the MRT hearing you stated that after your engagement ceremony, you went away for two weeks to Kampongsan together and you lived together at this time but the visa applicant said that you did not live together as this was against your custom.
This information is relevant to the review because the inconsistencies in your answers at the MRT hearing might lead the Tribunal to conclude that you and the visa applicant are not telling the truth about the inception and development of your relationship and the Tribunal may also find that you have fabricated the history of your relationship. This might lead the Tribunal to find that you and the visa applicant do not genuinely intend to live together as spouses.
·     At the interview with the Department of Immigration on 7 October 2014 at the Australian Embassy in Phnom Penh, the visa applicant stated that you stayed in a hotel during your visits in 2013 and 2014 because the visa applicant’s house is very hot and he has only one fan so that you preferred to stay somewhere with air conditioning. Although you confirmed this, you stated that the visa applicant stayed with you at the hotel.
·     The visa applicant stated at the interview that he has no friends so that you have not met any. However, you stated at the hearing that he has friends and you have met some of his friends.
This information is relevant to the review because the inconsistencies in the evidence might lead the Tribunal to conclude that you and the visa applicant are not telling the truth on matters which you should know about. The inconsistencies might lead the Tribunal to conclude that you and the visa applicant are not telling the truth about the inception and development of your relationship and the Tribunal may also find that you have fabricated the history of your relationship. This might lead the Tribunal to find that you and the visa applicant do not genuinely intend to live together as spouses.
·     At the time of the Department’s interview on 7 October 2014, the visa applicant had only a superficial understanding of your circumstances although you and the visa applicant claimed to have been engaged for over 4 years and claimed to have had ongoing contact.
·     At the time of the Department’s interview, you and the visa applicant had spent less than 3 months together since you were engaged 4 years before.
·     After you and the visa applicant became engaged in February 2010, you did not return to Cambodia until February 2012.
This information is relevant to the review because the visa applicant’s lack of knowledge about you at the time of the Department’s interview on 7 October 2014 and the minimal time you have spent together since you were engaged might lead the Tribunal to conclude that you and the visa applicant are not telling the truth about the inception and development of your relationship. This might lead the Tribunal to find that you and the visa applicant do not genuinely intend to live together as spouses.
If the Tribunal were to find that you and the visa applicant do not genuinely intend to live together as spouses, it would find that the visa applicant does not meet cl.300.216 and it would then find that the visa applicants do not meet the requirements for the grant of Subclass 300 visas.
The Tribunal informed the review applicant that the comments or response had to be received by the Tribunal by 13 September 2016.
On 8 September 2016 the Tribunal received a request for an extension of time to which the Tribunal agreed. The Tribunal wrote to the review applicant on 9 September 2016 and agreed to an extension of time until 23 September 2016.
On 23 September 2016 the Tribunal received a submission from the representative and a number of documents including copies of the visa applicant’s Cambodian passport, statutory declaration declared by the review applicant on 23 September 2016, statement from the fourth named visa applicant and the review applicant’s qualifications (Certificate III in Beauty Services and Diploma of Beauty Therapy).
In the statutory declaration, the review applicant stated that she did not tell the visa applicant the problems she has about her work because she does not want him to worry. She tells him issues mainly about the family but she does not want him to worry. He cannot do anything to help her from Cambodia. The review applicant stated that she recalls the visa applicant being asked about whether they slept together even though they were not married. The review applicant stated that when the visa applicant was asked about this in the old Tribunal case, he said that they did not and he told the review applicant later that he was embarrassed by the question when he knew that the review applicant was in the room as well as the review applicant’s mother, an interpreter, the female Member and the lawyer. The review applicant stated that this is because in Cambodian culture women can be looked down on if they are thought to be sleeping with a man and not married to him. The visa applicant wanted to protect the review applicant from being seen as immoral. They slept together in the hotel because it had air-conditioning and his house did not. The review applicant stated that she sends the visa applicant money when she can, sometimes through a money transfer and sometimes via a friend travelling to Cambodia. She has not kept a full record of all the money she sent him. The review applicant claimed that she assumed people she met, who visited them when she was with the visa applicant in Cambodia, were local friends. The visa applicant explained to the review applicant that they were local people who were being respectful by visiting because they knew she was visiting from Australia. The review applicant stated that she was not able to visit the visa applicant in 2011 because she was studying and only finished in late 2011. She had some part-time work in 2011 but could not afford to travel overseas and she was studying at TAFE. She obtained full-time work at Starline from August 2011 to February 2012 and saved money and went to visit the visa applicant in February 2012. The review applicant stated that she works full-time and can only take leave when it is due. She cannot afford to take unpaid leave as she has regular expenses. They have spent as much time as they are able to together. When they are together, they live together and sleep together. Her family and friends support the relationship. His children support the relationship. They intend to marry in Australia.
On 25 September 2016 the Tribunal received from the representative a statement dated September 2016 (sic) from the visa applicant who stated that he was in a relationship with Sophia Va but never legally married her. They have four children. The visa applicant stated that the review applicant visited Cambodia in 2012, 2013, 2014 and 2014 and they lived together as husband and wife during each of those trips. He was very nervous at the 2010 interview. He has not had much education. When he has to deal with officials in Cambodia or from the Australian Embassy, he becomes very nervous and is not able to explain things clearly. He made mistakes about the ages of his children and the review applicant’s children. In the 2012 hearing he could not remember the exact amount of money the review applicant sent him and when. This is because sometimes money was sent to the agency in Phnom Penh and sometimes through people visiting Cambodia. He did not keep a record of when the review applicant sent him money or how much she sent, because they are a couple and he did not think he needed to keep such records as if he was running a business. The visa applicant stated that they shared a room, from 2012 and lived together as husband and wife. In 2013 and 2014 they also stayed in a hotel. He remembers being asked in 2010 whether he and the review applicant had slept together as a couple and he was embarrassed to talk about such things in public. He also thought that the review applicant’s mother was in the room. The visa applicant works 7 days a week and does not spend much time socialising. He remembers introducing the review applicant to people who visited him when she was there. Some were neighbours and others were people who work in the area. He and the review applicant are in regular contact by phone. They intend to marry in Australia.
FINDINGS AND REASONS
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.

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.

100. The issue in the present case is whether the visa applicant satisfies cl.300.216.
Do the parties genuinely intend to live together as spouses?
101. 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.
102.
The Tribunal acknowledges that the requirement is in relation to the future intention

of the parties. However, the Tribunal is not satisfied that the review applicant’s evidence establishes at the time of application or at the time of the Tribunal’s decision that the visa applicant genuinely intends to live together with the review applicant as spouses.
103. The Tribunal has taken into account the evidence of the visa applicant and the review applicant. The Tribunal accepts that the review applicant has travelled to Cambodia a number of times. She met the visa applicant in 2005 and again in 2006 when the visa applicant drove the review applicant and her mother around in his taxi. The evidence is that the visa applicant separated from his then partner and communicated with the review applicant in Australia and after communicating together, he asked her to marry him almost 3 years after they had last met in person. The review applicant returned to Cambodia in 2008, 2010, 2012, 2013, 2014 and 2015 for stays of between two and four weeks.
104. The Tribunal has carefully considered the evidence which has covered over 11 years. There was a previous Subclass 300 visa application that was refused and an application to the MRT which affirmed the decision to refuse the visa. The visa applicant applied again to the Department for a Subclass 300 visa (the subject of this review) and he and the review applicant were interviewed but the visa was again refused. The review applicant then applied to the Tribunal for review.
105. For the following reasons, the Tribunal does not accept that the visa applicant genuinely intends to live together with the review applicant as spouses.
106. Firstly, it is somewhat surprising that the visa applicant and the review applicant have not married despite their claim that they intend to marry. At time of application the date of the intended marriage was 4 April 2015 yet the review applicant and the visa applicant have still not married. Whilst they have claimed that their intention is to marry in Australia, it is surprising after this much time has elapsed since they became engaged in February 2010 that they did not marry in Cambodia. The review applicant stated that they were engaged in Cambodia and so they want to marry in Australia where her family members are. However, the Tribunal is not satisfied that this is a reasonable explanation for not marrying in Cambodia. After all, the visa applicant and the review applicant could marry in Cambodia and then marry in Australia so that the review applicant’s family and friends could attend the ceremony. It appears from the evidence that the review applicant’s mother travels with the review applicant to Cambodia and could attend the ceremony. Given that the visa applicant asked the review applicant to marry him in about 2009 and they became engaged in February 2010, the Tribunal has concerns as to whether the visa applicant and the review applicant genuinely intend to marry and live together as spouses.
107. Secondly, the Tribunal has significant concerns about some inconsistencies in the evidence of the visa applicant and the review applicant about matters they should know about. While some of the inconsistencies relate to the previous visa application, the Tribunal considers that they are relevant to the case before the Tribunal. In an interview conducted by the Department on 26 October 2010 for a previous Subclass 300 visa application lodged by the visa applicant, the visa applicant could not give accurate details about the ages of the review applicant’s children and appeared to know little about her life in Australia. The review applicant stated at the hearing that the visa applicant was confused at that time. She told him the ages of her children but he was confused. More surprisingly the visa applicant also gave incorrect answers regarding the ages and dates of birth of his own children. Although the submission of the representative on 23 September 2016 is that the visa applicant and the review applicant have basic lives and they work and look after their respective homes, it is reasonable to expect after claimed conversations of many years that the visa applicant would know a lot about the review applicant’s life in Australia. After all, the review applicant claimed that she and the visa applicant speak nearly every day and they call every day.
108. At the MRT hearing on 12 September 2012, the review applicant stated that she sends $100 or sometimes $200 to the visa applicant every month or second month but the visa applicant stated at that hearing that he had not received any money in the last 6 months, and when asked if the review applicant had sent any money in the last 12 months, he said he could not remember. The Tribunal is satisfied that if the review applicant had been sending money, $100 or $200 every month or second month to the visa applicant, the visa applicant would remember this. This is a significant inconsistency in the evidence of the visa applicant and the review applicant. There is also no documentary evidence to support the claim that the review applicant was sending money every one or two months to the visa applicant at that time.
109. The Tribunal has considered the explanation of the visa applicant in his statement provided on 25 September 2016 that at the hearing of the MRT he could not remember the exact amount of money the review applicant sent him and when, and this is because sometimes money was sent to the agency in Phnom Penh and sometimes through people visiting Cambodia. He stated that he did not keep a record of when the review applicant sent him money or how much she sent, because they are a couple and he did not think he needed to keep such records as if he was running a business. The Tribunal is satisfied that if the review applicant was sending the visa applicant $100 or $200 every month or second month, he would remember this. It is not credible that the visa applicant would not remember if the review applicant had sent him money in the last 12 months, in light of her evidence that she was sending him 100 or $200 every month or second month. The Tribunal does not accept that the review applicant was sending money to the visa applicant and is satisfied that the review applicant did not tell the truth to the MRT at the hearing about this.
110. At the Tribunal hearing the review applicant stated that this was 6 years ago and she sent the money after she got engaged. She became engaged in February 2010 and according to her evidence she was studying and unable to travel to Cambodia to visit the visa applicant until February 2012. As stated previously there is no documentary evidence to support the claim that the review applicant was sending money every one or two months to the visa applicant. The review applicant’s evidence is that she was sending money every month or every two months to the visa applicant at a time when she was studying to gain her qualifications as a beautician. The review applicant stated that at that time she was not sending that much, a few hundred dollars a month but when she started working, she had the money, and she saved and she sent $500 or $1000.
111. The review applicant stated that recently she sent $500 or $1000 and she has the receipts and the witness. The Tribunal has taken into account the evidence of financial support for the visa applicant. Whilst a witness, Ms Simara Put, gave evidence of taking $US500 to the visa applicant in April 2016 from the review applicant, there is no documentary evidence of this. There is no evidence of the money being converted into U.S. dollars or of money being withdrawn from the review applicant’s bank account. The Tribunal does not accept that the review applicant was supporting, or is supporting, the visa applicant financially except to a minimal degree.
112. There is little evidence that the visa applicant and the review applicant have pooled their finances. They live in different countries and the Tribunal does not make adverse findings about this. However, the Tribunal does not accept that the review applicant has been sending money to the visa applicant except to a minor degree. Although the review applicant provided to the Tribunal money transfers after the hearing, the Tribunal has concerns about these receipts. They appear not to have been provided to the Department and although the review applicant applied for review with the Tribunal on 6 March 2015, the review applicant did not provide these documents until after the hearing. The Tribunal places little weight on these documents. There is no evidence of withdrawal of funds from the review applicant’s bank account about the time that the receipts for the money transfers were issued.
113. Another significant inconsistency at the MRT hearing was that the review applicant stated that, after the engagement ceremony, they went away for two weeks to Kompong Som together and they lived together at this time, but the visa applicant said that they did not live together as this was against their custom. The Tribunal raised this inconsistency with the review applicant at the hearing on 18 May 2016. The Tribunal has considered the explanation of the review applicant that she talked to the visa applicant who said that he protected her because, in Cambodia, if you are not married and you live with a girl, it is not a nice word to say. She explained to the visa applicant that in Australia you make it clear and he said he understands. The visa applicant stated in his statement provided to the Tribunal on 25 September 2016 that he did not legally marry his previous partner with whom he had 4 children. Although the representative stated that the visa applicant had previously admitted to him that he had cohabited with the review applicant, but admitting this information to the MRT hearing where there was a Member, an interpreter, the representative and the review applicant’s mother present, placed him in a serious cultural dilemma. However, the visa applicant was born in 1961 and he lived with his previous partner without marrying her. The Tribunal is not satisfied that the visa applicant was protecting the review applicant by saying that he did not stay with the review applicant in the hotel. The Tribunal is not satisfied that the visa applicant and the review applicant lived together after the engagement ceremony.
114. Another significant inconsistency involved statements by the visa applicant and the review applicant at the interview with the Department on 7 October 2014 at the Australian Embassy in Phnom Penh. The visa applicant stated that the review applicant stayed in a hotel during her visits in 2013 and 2014 because the visa applicant’s house is very hot and he has only one fan so that the review applicant preferred to stay somewhere with air conditioning. Although the review applicant confirmed this, she stated at the interview that the visa applicant stayed with her at the hotel.
115. The Tribunal raised this with the review applicant at the hearing and she stated that the visa applicant lived with her at the Hotel Asia as husband and wife in 2012. In 2013 the review applicant went back to Cambodia and she stayed at Hotel Asia and the visa applicant spent the whole time with her in that hotel as well. In 2014 she went back again and she stayed at the same place and the visa applicant stayed there with her. The Tribunal is satisfied that If the visa applicant had stayed with the review applicant at the hotel, it is reasonable to expect that he would give that answer at an interview. However, he did not. Although the review applicant has provided hotel receipts from the Asia Hotel, they were only provided to the Tribunal after the hearing and although they are dated different years, they appear to be in the same handwriting. They were not provided to the Department before the decision was made by the delegate and they were not provided to the Tribunal before the hearing. The Tribunal has concerns about the genuineness of these receipts and places little weight on these receipts.
116. Another significant inconsistency at the Department’s interview on 7 October 2014 was that the visa applicant stated that he has no friends so that the review applicant has not met any. However, the review applicant stated at the hearing that he has friends and she has met some of his friends. The review applicant stated at the hearing that the visa applicant has friends and he is confused. She has met some of his friends. He told her that when he is nervous, he forgets everything. The Tribunal does not accept this explanation as reasonable for the inconsistency in the evidence.
117. On 25 September 2016 the Tribunal received a statement from the visa applicant who stated that he works 7 days a week and does not spend much time socialising. He has a friend here but has “not seen them (sic) for a while”. He stated that he remembers introducing the review applicant to people who visited him when the review applicant was there. Some were neighbours and others were people who work in the area. The visa applicant did not state that the review applicant had met some of his friends. This is inconsistent with the review applicant’s statement at the hearing that the visa applicant does have friends and she has met some of them.
118. The Tribunal has also considered the evidence of the relationship between the visa applicant and the review applicant. The Tribunal has had regard to the evidence that the visa applicant and the review applicant have been communicating from 2008 but there is no documentary evidence of communication until the telephone account of March 2013. There is no documentary evidence of communication at all until March 2013. The Tribunal accepts that there are a number of international calls each month as listed on the review applicant’s telephone accounts. There are no letters, no cards, no emails and they do not send text messages on their phones. The review applicant stated that the visa applicant does not know how to speak English and the review applicant does not write much in Cambodian. The review applicant stated that she did not keep any evidence of communication from 2008 until the dates of the Tribunal accounts that she provided and the earliest account is dated March 2013. There is no documentary evidence of contact between the review applicant and the visa applicant between the time they met until the telephone account of March 2013. The Tribunal has taken into account the evidence that the visa applicant used to call her and used prepaid phone cards.
119. The visa applicant and the review applicant travelled to Thailand together and they have taken trips to parts of Cambodia. Although there is evidence of telephone calls made to Cambodia in the telephone accounts from 2013, and documentary evidence that the visa applicant and the review applicant have travelled together to Thailand and evidence that they have travelled to parts of Cambodia, the Tribunal is not satisfied that this evidence overcomes the significant concerns the Tribunal has about whether the visa applicant and the review applicant genuinely intend to live together as spouses. Because of the significant inconsistencies in the evidence of the visa applicant and the review applicant, the Tribunal does not accept that the visa applicant and the review applicant genuinely intend to live together as spouses.
120. At the hearing held on 12 September 2012 by the MRT, to review the refusal of the visa applicant’s previous Subclass 300 visa, the review applicant stated that in her regular discussions with the visa applicant, she did not tell him of problems in her life or tell him if she is upset about something. However, the visa applicant stated that the review applicant often talked to him when she was upset and they discussed things. At the Tribunal hearing on 18 May 2016, the review applicant stated that she used to tell the visa applicant that she was not happy because it took so long for him to come here and she was upset that he was not able to come here. She did not want to tell him personal things that she got upset about or problems with her life because she did not want him to be unhappy. The Tribunal accepts that the review applicant might wish to keep from the visa applicant problems in her personal life because she did not want the visa applicant to be concerned about that. However, because of other significant inconsistencies in the evidence and the lack of documentary evidence to support some of the claims, the Tribunal is not satisfied that the visa applicant and the review applicant genuinely intend to live together as spouses.
121. The Tribunal has taken into account that the review applicant has sent medicine and perfume to the visa applicant. The Tribunal does not accept that the review applicant has been sending money to the visa applicant other than to a minor degree. The Tribunal is not satisfied that the financial aspects of the relationship are indicative of a genuine intention by the visa applicant to live together with the review applicant as spouses when seen in conjunction with all the evidence before the Tribunal.
122. The Tribunal has considered the nature of the household. The review applicant and the visa applicant live in different countries and therefore do not share responsibility for housework on a day to day basis. The Tribunal is not satisfied that the visa applicant and the review applicant have stayed together at the hotels in Cambodia because of the inconsistencies in the evidence between the visa applicant and the review applicant about these claims and also because of the concerns the Tribunal has about the genuineness of the hotel receipts from Asia Hotel. The Tribunal finds that the evidence about the nature of the household is not indicative of a genuine intention of the visa applicant to live together as spouses with the review applicant when seen together with all the evidence before the Tribunal.
123. The Tribunal has considered the social aspects of the relationship. The Tribunal has taken into account the evidence of the witnesses about the genuineness of the relationship and places some weight on the evidence of the witnesses, including the review applicant’s mother. The review applicant’s evidence is that only one of her two daughters has met the visa applicant. Because of the significant inconsistencies in the evidence of the visa applicant and the review applicant and the lack of documentary evidence of communication until 2013 and the small amount of documentary evidence about the financial aspects of the relationship, the evidence of the social aspects of the relationship does not overcome the Tribunal’s concerns that the visa applicant and the review applicant do not genuinely intend to live together as spouses.
124. There is evidence that the visa applicant and the review applicant have attended functions, including a wedding and an engagement and dinners in Cambodia and the Tribunal accepts this evidence. However, because of the significant concerns the Tribunal has about the inception and development of the relationship between the visa applicant and the review applicant, the Tribunal is not satisfied that the social aspects of the relationship are indicative of a genuine intention by the visa applicant and the review applicant to live together as spouses when seen in conjunction with all the evidence before the Tribunal.

125. The Tribunal is not satisfied that the visa applicant and the review applicant have demonstrated a degree of companionship or emotional support which would be expected from parties who genuinely intend to live together as spouses and who have been engaged since February 2010 and who made a decision to marry in about 2009.
126. The Tribunal has considered both individually and cumulatively all the claims of the parties as to their relationship and whether they genuinely intend to live together as spouses. The Tribunal does not accept that the visa applicant and the review applicant genuinely intend to live together as spouses. The Tribunal is not satisfied that the visa applicant and the review applicant provide each other with the degree of companionship and emotional support which would be expected in a genuine relationship or a level of understanding of each other which would be expected if the parties genuinely intend to live together as spouses.
127. After considering all the evidence, the Tribunal is not satisfied that the visa applicant genuinely intends to live together with the review applicant as spouses. 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. The Tribunal is not satisfied that the visa applicant meets cl.300.216 at time of application. The Tribunal is not satisfied that the visa applicant meets cl.300.221 at time of decision because the visa applicant does not continue to satisfy the criteria in cl.300.216.
128. The Tribunal is not satisfied that the second, third and fourth named visa applicants meet cl.300.311 because they are not members of the family unit of a person who satisfies the primary criteria in cl.300.216.
129. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
130. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.
D. Dimitriadis
Member

[2016] AATA 4885

14 November 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction