1505686 (Migration)

[2016] AATA 4004

1505686 (Migration) [2016] AATA 4004 (2 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms THI THIN DINH

VISA APPLICANTS:  Mr TUAN PHAM
Mr VAN TU PHAM
Miss NGOC HONG ANH PHAM

CASE NUMBER:  1505686

DIBP REFERENCE(S):  OSF2014027694

MEMBER:Kira Raif

DATE:2 May 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 02 May 2016 at 1:05pm

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 September 1968. He applied for the visas on 1 August 2014. The application includes his children. The delegate refused to grant the visas on 8 April 2015 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied the parties 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 2 May 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 her registered migration agent.

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

   Relevant law

5. 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.

6. 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?

7. 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.

8. The Tribunal has some concerns about the development of this relationship. The parties claim to have been introduced around February 2013 and only three months later, in May 2013, the visa applicant expressed his love for the sponsor. It appears that their love for each other has developed very quickly and before the parties first met in person. The formal proposal was made in September 2013 only a few days after the parties met in person. While the parties do claim to have had plenty of phone contact in that period, it is unclear why they did not wish to spend more time in each other’s company before forming the commitment to marriage.

9. The Tribunal is also mindful that in the two years that have elapsed since the parties formed the commitment to the relationship, they have not yet registered marriage. The review applicant explained to the Tribunal that she has to live in Vietnam for three months before she can register marriage and she cannot do that due to work commitments, so they had not registered marriage. The review applicant’s representative refers to 45 days’ residence in Vietnam required to register marriage. The Tribunal accepts that the review applicant has work commitments in Australia and that she may find it difficult to take a lengthy holiday overseas, although her evidence is that she has been able to negotiate her holiday with her employer in the past.  The Tribunal is not satisfied that she would have been unable to negotiate a 45 day holiday in the past two and a half years. The Tribunal is concerned that the couple’s commitment to marriage is dependent on the visa applicant obtaining the Australian visa.

10. The Tribunal has considered the various aspects of the relationship. The review applicant’s evidence to the Tribunal is that the visa applicant has adequate funds to support himself and does not need her to support him. The review applicant said that she sent money to the visa applicant on two occasions to help his children with school expenses. Her evidence is that the visa applicant has some savings but has not contributed to the payment of her mortgage, stating she can manage it herself. She also mentioned that she left $1000 to the visa applicant when she travelled in 2014 to cover the expenses of the engagement. The Tribunal accepts that there has been some exchange of finances but finds that there was very limited sharing of resources between the parties. They have no joint liabilities and no financial responsibilities towards each other.

11. The parties’ evidence is that they were first introduced in February 2013, formed a relationship in May 2013 and formed a committed to marriage in September 2013. The Tribunal notes that since that time the parties had spent very limited time together. The review applicant’s evidence is that she travelled to Vietnam for about three weeks at a time in September 2013, May 2014 and November 2015. In total, the couple had spent less than three months in each other’s company. The Tribunal considers such time very limited. The Tribunal accepts that during these visits the couple socialised together and met with family and friends. The Tribunal also accepts the partners communicate with each other when they are not living together. However, the Tribunal finds that they had spent limited time together.

12. There are several statements from third parties and photographic evidence of the couple’s social activities. The Tribunal accepts that the couple socialised together and represent themselves as being in a relationship. The Tribunal accepts the relationship is known to others and is supported by friends and family.

13. The Tribunal acknowledges that to date, the relationship has existed for a period exceeding two years. The Tribunal accepts that there is frequent contact between partners, although they had spent little time in each other’s company. The Tribunal accepts that they had discussed their future together and had made meaningful plans and that may suggest that they genuinely intend to marry and view the relationship as a long term one.

14. The Tribunal notes that according to the primary decision record, at the time of the primary interview the visa applicant’s knowledge of the visa applicant’s circumstances appeared to be quite limited. The review applicant explained to the Tribunal that the visa applicant was nervous and was told to keep his answers short. The Tribunal does not accept that the visa applicant was not given adequate opportunity to present his evidence and that he was told to limit his evidence to the ‘yes or no’ answers as the review applicant suggests and although the Tribunal is prepared to accept that the visa applicant may have been nervous during the interview, the Tribunal is not satisfied this provides a good reason for his apparent lack of knowledge.

15. Further, in their oral evidence to the Tribunal the couple gave detailed and consistent information about some aspects of the relationship but lacked knowledge about other aspects of each other’s lives that the Tribunal would consider to be significant. For example, the review applicant appeared to have little knowledge about the study of the visa applicant’s son, claiming they do not discuss it. In the Tribunal’s view, care and support of children (including adult but dependent children) is a significant aspect of a committed relationship and the parties’ failure to discuss it is of concern to the Tribunal. Similarly, the visa applicant could not recall the review applicant’s employment arrangements over the past week while the review applicant was unaware that the visa applicant’s divorce took two years to finalise. The Tribunal is mindful of the parties’ claim that they communicate frequently and rely on each other for companionship and emotional support. In such circumstances, the Tribunal would expect the parties to have a good knowledge about such matters which are of reasonable importance.

16. The Tribunal has also formed the view that some of the answers given by the visa applicant to the Tribunal were memorised. It appears that, with his inability to answer questions about the review applicant being one of the reasons for the primary refusal of his application, the visa applicant and the review applicant went about exchanging and memorising information that they thought they may be questioned about. The Tribunal is concerned that such exchange of information occurred due to the parties’ desire to meet the immigration requirements and not because of their commitment to this relationship.

17. Overall, the Tribunal accepts that the review applicant made several trips to Vietnam and had spent time with the visa applicant. The Tribunal accepts that the couple had lived together during these trips and gives weight to the fact that their respective families are aware of the relationship and support the relationship. The Tribunal acknowledges the considerable amount of documentary evidence that has been presented. The Tribunal places weight on the fact that the relationship has been in existence for a number of years and accepts that the parties discussed their future together. Against these considerations, the Tribunal notes that the parties had spent very limited amount of time together in the past two and a half years.  The Tribunal is not satisfied they have established adequate communication with each other and has formed the view that their exchange of information was governed by visa requirements. The Tribunal acknowledges that some of the evidence supports the finding that the couple genuinely intend to marry but other evidence does not satisfy the Tribunal that such intention exists.

18. Having regard to the entirety of the evidence before it, the applicant has not satisfied the Tribunal that at the time the application was made, the parties had a genuine intention to live together as spouses. The Tribunal is not satisfied that cl.300.216 is met. The secondary applicants do not meet cl. 300.321.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member