1506118 (Migration)

[2016] AATA 4228

1506118 (Migration) [2016] AATA 4228 (11 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Shannon Brian  Judd

VISA APPLICANT:  Ms Sophea Seth

CASE NUMBER:  1506118

DIBP REFERENCE(S):  OSF2014/051319

MEMBER:Margie Bourke

DATE:11 August 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.216 of Schedule 2 to the Regulations.

Statement made on 11 August 2016 at 2:18pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 June 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. Relevantly to this matter the primary criteria include cl.300.216.

3. The delegate refused to grant the visa on 21 April 2015 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied there was sufficient credible evidence that the parties intended to genuinely live together as spouses.

4. The review applicant appeared before the Tribunal on 8 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Sophea Seth, the review applicant’s parents Ray and Kerrie Judd and a friend of both the review applicant and the visa applicant, Ms. Sochantrea Ros.  The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether at the time of application the parties genuinely intended to live together as spouses.

   Do the parties genuinely intend to live together?

8. 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.

9. 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.

10. The parties were introduced by Ms Ros, who knew the visa applicant in Cambodia and works in a bakery where she met the review applicant. The tribunal accepts that Ms Ros left Cambodia in 2005. The tribunal accepts that the review applicant was a regular customer at the bakery.  The tribunal is satisfied that Ms Ros provided the facebook connection for the parties in September 2013, and the parties communicated with each other from that time.

11. The tribunal accepts the evidence of the review applicant and the visa applicant that the introduction did not occur during a facebook conversation between Ms Ros and the visa applicant. The tribunal does not accept the evidence of Ms Ros that the initial introduction occurred in the bakery when she was on facebook on her phone and the review applicant interrupted her conversation with the visa applicant.

12. The tribunal is satisfied based on the evidence at the hearing that the review applicant’s parents had reservations initially about the relationship, based on how the relationship commenced and whether it was mutually genuine. The tribunal accepts the review applicant’s father’s concerns about his son’s relationship with the visa applicant continued for longer than the review applicant’s mother’s concerns. The tribunal accepts that the review applicant’s parents were satisfied by the time of application in June 2014, that the relationship was mutually genuine.  The tribunal accepts the review applicant’s parents had communicated with the visa applicant and they believed their son and his fiancé genuinely intended to live as husband and wife in Australia.

13. The tribunal notes the visa applicant stated she had not previously had any relationship with a male partner.  Ms Ros stated the visa applicant was her “best friend” but she had no knowledge of whether she had any previous relationships. The review applicant stated the visa applicant had told him she had had a previous relationship (not a marital relationship) with a “bad” person. The review applicant stated after the visa applicant’s evidence that she probably preferred not to talk about it.  The evidence of the parties relevant to time of application was overall consistent and credible.  For this reason the tribunal has considered this inconsistent evidence about the visa applicant’s possible previous relationship but gives it less weight.

14. The tribunal is satisfied that the review applicant moved into the home of Ms Ros on 11 or 12 December 2013.  Ms Ros lived there with her husband and child. The tribunal accepts, based on the consistent evidence of the witnesses, that Ms Ros invited the review applicant to live with her family, at the request of the visa applicant. The tribunal accepts the visa applicant requested her friend to have the review applicant live with her for a variety of reasons, including offering him support, financial assistance through reduced accommodation costs, and also to assess he was who he claimed to be in their facebook and telephone discussions.

15. The tribunal is satisfied based on the consistent evidence before it that the review applicant travelled to Cambodia to personally meet the visa applicant, and that they met at the airport on 30 December 2013.  The tribunal is satisfied that Ms Ros was also in Cambodia at that time.  The tribunal accepts the review applicant stayed in Cambodia for about one month, until 29 January 2014, and he lived in an apartment in Phnom Penh. The tribunal accepts the parties saw each other daily.  The tribunal accepts the review applicant proposed to the visa applicant during the visit, and this had not been planned prior to him leaving Australia. The tribunal accepts the parties held a small engagement ceremony.

16. The parties gave inconsistent evidence as to their future plans in relation to their priorities for having children, compared with both working and saving for a house.  This inconsistent information was put to the review applicant pursuant to the s.359AA process. The review applicant consulted with his representative during a short adjournment and elected to comment and respond at the hearing.  The tribunal accepts the review applicant’s response that the inconsistent answers were based on the review applicant giving evidence as to the parties intentions to work and save for their own home at the time of application in June 2014, and the visa applicant giving evidence about their current plans to have a child in the near future and remain renting/boarding with Ms Ros’ family for a longer time, due to their ages.  The tribunal is satisfied the parties had discussed their plans for their futures together.

17. The tribunal accepts the parties intended to live together as spouses at the time of application, and gave consistent evidence in relation to their plans to marry, to work, to ultimately save for their own home, to share a household with Ms Ros’ family initially, to socialise as a couple with the review applicant’s family, to travel to meet the review applicant’s brothers and travel to Sydney and to the snow, to start a family and to attend church and to share a lifetime together.

18. For the above reasons the tribunal is satisfied that at the time of application the parties did have a genuine intention to live together as spouses, and therefore cl.300.216 is met.

19. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.

    DECISION

20. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300,216 of Schedule 2 to the Regulations.

    Margie Bourke
    Member