1506993 (Migration) - [2016] AATA 4538

1506993 (Migration) [2016] AATA 4538 (19 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Hanh My Thi Tran
VISA APPLICANT:  Mr Danh Ngoc Pham
CASE NUMBER:  1506993
DIBP REFERENCE(S):  OSF2014/027340
MEMBER:Michelle Grau
DATE:19 October 2016
PLACE OF DECISION:  Brisbane

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 and cl. 300.215(a) of Schedule 2 to the Regulations

Statement made on 19 October 2016 at 11:05am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 30 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. 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 300.216.
The delegate refused to grant the visa on 26 March 2015 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because he was not satisfied the parties genuinely intended to live together as spouses.
The review applicant (hereinafter referred to as the sponsor) appeared before the Tribunal on 12 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The sponsor was represented in relation to the review by her registered migration agent, who attended the hearing. At the opening of the hearing the agent suggested I should consider recusing myself as she had sent two letters in relation to two other matters seeking recusal in those matters. I considered the issue raised by the migration agent. I decided not to recuse myself as I do not consider a request for recusal or correspondence about interpreter issues in other matters have any bearing, or influence on considering the merits of the case before me or any future case represented by the same the agent. In a decision of the President of the tribunal 1419015[1], the President considered the power in s19D(2)(a)(iii) of the Administrative Appeals Act 1975 to reconstitute a matter from a member where the President is satisfied it is in the interests of justice to do so. In that case, the President noted the power is one which should be used in a restrained way and not to be a substitute for review by the Federal Courts of the conduct of a hearing or member.
[1] 1419015[2016] AATA 3075
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the parties genuinely intend to live together as spouses.
Do the parties genuinely intend to live together?
Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act; there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). Whilst it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.
The visa applicant (hereinafter referred to as the applicant) is a 33 year old single male from Vietnam, with no previous relationships. The sponsor is a 38 year old Australian citizen of Vietnamese background who lives in Brisbane. The sponsor divorced in March 2011 and has two children born in 2004 (son) and 2008 (daughter).
According to their statements they met online at Vietfun in October/November 2012. They exchanged phone numbers a month later and were in contact almost daily.
According to the applicant he expressed his love for the sponsor online in March/April 2012. The sponsor did not reciprocate as she was insecure due to their age difference. However according to the sponsor, the applicant expressed his love over coffee in June 2013 and she agreed to be his girlfriend.
On 18 June 2013, the sponsor and her two children made their first trip to Vietnam to see the applicant. After arrival, they visited the sponsors home town and family first. On 24 June 2013 they then visited the applicant’s home town.
On 28 June 2013, the applicant said he had fallen for the sponsor and agreed to be girlfriend and they told the applicant’s parents. They went to Saigon on 30 June 2013 and the sponsor and her children departed Vietnam on 1 July 2013.
The sponsor and her children made a second visit to Vietnam on 17 September 2013 and stayed at the applicant’s parent’s home. They also travelled to Saigon and Hanoi together and stayed in separate rooms. The applicant discussed marriage and their future, but the sponsor did not respond and needed more time to think.
On 8 October 2013, the sponsor and her children departed Vietnam. They kept in contact by phone and message. On 5 December 2013, the applicant asked again about marriage and this time the sponsor accepted.
The third trip was on 20 January 2014. The sponsor and her son and a friend travelled to Vietnam and they went to the applicant’s home. The applicant and sponsor shared a bedroom and started cohabiting for the first time.
On 24 January 2014, they held the engagement ceremony at the applicant’s parent’s home. There were 60 guests which included the applicant’s parents, but not his brothers as they were overseas. The couple continued living at the applicant’s parent’s home until the sponsor left on 30 January 2014.
The visa application was lodged on 30 June 2014 and refused on 26 March 2015. It was claimed the couple continued contact by phone and internet, but the sponsor cannot return to Vietnam for financial reasons as she used all her savings and is a single mother. In August 2014 the sponsor started work as a permanent casual hairdresser.
At review the applicant provided further statements from the applicant and sponsor, friends and relatives, phone records, facebook pages and photos.
At hearing the tribunal discussed the financial, household, social and commitment aspects of the relationship. It also discussed concerns about why the sponsor did not visit the applicant after the engagement; why none of the sponsor’s family members attended the engagement ceremony; the differences in religion and age, the couple’s parents’ attitude to the relationship; the sponsor’s children’s relationship with the applicant.
Having heard from the sponsor and her sister, the tribunal is satisfied they are credible witnesses. The sponsor gave clear, free flowing evidence, even when the evidence was not entirely favourable. The tribunal accepts the sponsor’s evidence.
The tribunal found the sponsor’s sister’s evidence clear, honest, and straightforward, which was consistent with the sponsor’s evidence and accepts she is a credible witness. She confirmed she lent over $6000 to her sister to enable her to visit the applicant in Vietnam and to pay for legal fees. She confirmed their parents, who are old and frail, were in favour of the relationship and wanted her to get on with the relationship and be happy. The sister also provided useful evidence about the context of the breakup of the sponsor’s marriage and the sponsor having found the applicant compatible. The sister confirmed she had spoken with the applicant a number of times. The sister is very close to the sponsor and has taken a supportive interest in the sponsor’s relationship. The tribunal found the sponsor’s sister’s evidence particularly useful in assessing the relationship and its corroboration.
The tribunal made numerous attempts to phone the visa applicant at hearing but there were problems due to the three phone link up and each time the tribunal connected with the visa applicant, the interpreter (on the phone) and the tribunal the telephone line dropped out.
FINDINGS AND REASONS
However, based on the documentary evidence and the oral evidence of the sponsor and her sister the tribunal is satisfied the parties genuinely intend to live together as spouses for the following reasons.
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.
Financial
Firstly, the tribunal accepts the sponsor and applicant gradually developed their relationship on the internet, then met and spent time with each other in two periods in 2013 before becoming engaged. The tribunal accepts the sponsor was unable to afford to travel again to Vietnam since then. She had borrowed $3000 already from her sister to travel to Vietnam for the second visit and since then has borrowed another $3000 from her sister. The sponsor told the tribunal the applicant gave her $1500 to help repay that loan. The sponsor’s sister confirmed the amounts borrowed and that the sponsor had paid back most of it.
Further, the tribunal accepts that the sponsor was hoping the applicant’s visa would be granted and was trying to save money. She, however, had to use the savings to pay the application and legal fees for the review. The tribunal accepts the couple keep in contact regularly by phone and social media which was evidenced by phone bills and FB pages.
The sponsor made one monetary transfer to the applicant and also bought the applicant’s parents TV as a gift. he sponsor has also named the applicant as a 50% beneficiary in her superannuation.
At hearing the sponsor and her sister gave evidence of the sponsor’s limited funds. She was unemployed and supporting two children and had a mortgage to pay. The sponsor found part time employment in August 2014 as a hairdresser earning $500 a week. Her mortgage is $500 a fortnight and she receives about $50 a week from Centerlink. The sponsor’s sister has loaned the sponsor over $6000 for the application and to travel to Vietnam. The applicant’s family are farmers and able to support themselves but are not wealthy. However, the applicant gave the sponsor $1500 cash to help repay the sponsor’s sister.
The tribunal accepts the couple have limited finances and it would be difficult to pool finances while they live in different countries. Despite this, the tribunal accepts the applicant has tried to assist the sponsor with a payment of $1,500 and the applicant has also provided a gift to the applicant’s parents and made one transfer to the applicant and named the applicant as beneficiary. The tribunal accepts there is some evidence of sharing finances which is consistent with a genuine.
Household
The tribunal accepts the applicant and sponsor have spent only limited time sharing the same household, being 10 days in 2014 at the applicant’s home. However, this is because they live in different countries. Nonetheless, the sponsor has made three visits to Vietnam and each time spent the entire time with the applicant. They travelled together in Vietnam and spent time at the applicant’s parental home and the sponsor’s relative’s home. Statements from applicant’s father and friend corroborate the couple shared a household and chores. The tribunal accepts where they could have spent time together, they did. The tribunal considers this weighs in favour of the applicant.
Social and commitment aspects
At review a number of additional statements from family and friends were provided attesting to the couple’s relationship. The tribunal considers the applicant’s father’s statement is detailed, measured and honest about the relationship. It helps to explain the applicant’s circumstances from the father’s perspective. It was evident the applicant had not had previous relationships, was shy, he did not want to be pressured into marriage, but developed a relationship online with the sponsor. He was honest with his parents about the sponsor’s divorce status and having two children. The applicant’s father was a bit worried about that and talked to the applicant about that. The sponsor confirmed at hearing she picked up some hesitancy from the parents at first but this changed after she spent time with the family and lived with them. The applicant’s father statement notes after spending time with the sponsor and seeing the couple together that he understood why the applicant liked the sponsor. He noted their characters were complementary as his sons is shy and quiet but the sponsor is dynamic, talkative and understanding. The applicant’s father noted he had a serious conversation with his son at the end of 2013 as the applicant wanted to marry the sponsor, particularly about the responsibility of having to care for two children as well.
The sponsor’s sister also gave evidence at the hearing about the relationship and recognition of it by the sponsor’s family, which the tribunal accepts.
The tribunal considers the applicant’s father’s statement and the sponsor’s sister’s evidence at hearing are strong evidence that the couple have considered their relationship and future carefully, given their age, marital status differences. It is also strong evidence of the social acceptance of the relationship.
The couple’s FB and photos further corroborate the couple socialised in Vietnam and are recognised as a couple.
The tribunal discussed the engagement ceremony, their future wedding plans and future plans generally. The sponsor’s evidence was credible and realistic.
The tribunal accepts the applicant and the sponsor’s children do not have significant interaction but this is because the children’s first language is English and their Vietnamese is not so good. The sponsor said the children struggle to understand Vietnamese and she is trying to improve that so they can better communicate with the applicant. She talks to the applicant about how the children are going in school. The tribunal accepts the children speak to the applicant on the phone but not in any detail. In the circumstances, the tribunal accepts the applicant may not know their favourite subject or such details.
Further, in any event, the tribunal considers there has been personal interaction between the applicant and the sponsor’s children, as the children also travelled to Vietnam and stayed with the couple and the applicant’s family. Further, the applicant’s family accepted the children and responded well to them. The tribunal accepts there is evidence of joint support, and caring responsibilities of the sponsor’s children and acceptance of them as part of the family unit, including the applicant’s extended family unit.
At hearing, the tribunal discussed its concerns that the sponsor’s daughter did not go to Vietnam to attend the engagement. The sponsor confirmed her daughter became ill from the water in Vietnam and it was expensive to travel a third time with two children. The tribunal understands the reluctance to spend money for the daughter to visit Vietnam for a third time when she gets ill, particularly given she can attend the planned wedding in Australia. Further, the sponsor travelled to Vietnam at great expense (taking her children) a number of times to further develop and be sure about the relationship.
The tribunal has considered the delegate’s concerns about the smaller engagement and the lack of sponsor’s relatives attending the engagement. However, having heard from the sponsor, her sister at hearing, and having considered the further statements, the tribunal places little weight on those concerns. The tribunal accepts the sponsor’s parents are in their 70s, frail and not good candidates for travel. Further, the plan is to have a wedding in Australia. The tribunal accepts the sponsor’s uncle and cousins in Vietnam did not attend as they lived far away and had work commitments and the sponsor’s friend and son were present on behalf of the sponsor’s side of the family. The tribunal accepts the engagement ceremony in Vietnam was for the applicant’s family and the planned Australian wedding would cater for the Australian side of the sponsor’s family. The tribunal accepts this needs to be understood in the context of a second marriage for the sponsor whose family has been brought up in Australian culture.
The tribunal accepts the couple took six months to develop the relationship. While the applicant expressed his love first, the sponsor, being concerned about the age difference (5 years), her children and being married before took it more gradually. This is why she visited Vietnam three times, even though she financially could not afford to travel, and had to borrow money. The tribunal accepts they developed the relationship for a year before the proposal and their engagement. It was evident the sponsor’s sister took an interest in the development of the relationship and protecting her sister but also wanting to see her in a happy relationship to get on with her life. Having heard from the sponsor and the sponsor’s sister at hearing, the tribunal is satisfied the couple have carefully considered their relationship and commitment.
Further the tribunal was satisfied the couple keep in regular and frequent contact which is consistent with a committed relationship.
The sponsor’s evidence at hearing about their future plans for their own children and work was realistic and credible.
The tribunal accepts there is significantly more documentary evidence of social aspects of the relationship than was before the delegate. Further having heard from the sponsor and her sister the tribunal is satisfied about the social and commitment aspects of the relationship. The tribunal finds the social and commitment aspects of the relationship consistent with a genuine spouse relationship.
Considering the evidence overall, the tribunal finds at the time of application the parties did have a genuine intention to live together as spouses, and therefore cl.300.216 is met.
Do the parties genuinely intend to marry?
Clause 300.215 requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period.
While the applicant provided notice of intention to marry prior to the refusal decision, the proposed time had passed.
After the hearing, the sponsor provided evidence of notice of intention to marry for 27 January 2017 and engagement of a celebrant. At the hearing the sponsor discussed who would be invited and possible reception venues, where she had made enquiries.
The tribunal finds at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a).
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.
DECISION

The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
·cl.300.216 and cl. 300.215(a) of Schedule 2 to the Regulations
Michelle Grau
Member