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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 4538
Decision Date: 19 October 2016

CaseChat Overview and Summary

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa, brought by a 33-year-old single male from Vietnam, who was the applicant, and sponsored by a 38-year-old Australian citizen of Vietnamese background. The Tribunal was required to determine whether the parties genuinely intended to live together as spouses at the time of the application.

The central legal issue was the interpretation and application of clause 300.216 of the Migration Regulations 1994, which requires that at the time of application, the parties genuinely intend to live together as spouses. The Tribunal considered the definition of "spouse" under section 5F of the Migration Act 1958, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. The Tribunal also noted that considerations set out in regulation 1.15A(3) for spousal relationships could be had regard to, although the focus remained on the parties' intentions regarding the legislative definition of spouse.

The Tribunal found that while the parties had met online and engaged in communication, and the sponsor had visited Vietnam twice, there were significant indications that the genuine intention to live together as spouses was not yet firmly established by the applicant. Specifically, the sponsor's hesitation to reciprocate the applicant's expressions of love due to an age difference, and her continued need for time to consider marriage during their joint travel, suggested a lack of mutual commitment to a shared future at the time of application. Consequently, the Tribunal concluded that the applicant met certain criteria, specifically clauses 300.216 and 300.215(a) of Schedule 2 to the Regulations, but that the matter should be remitted for reconsideration by the Minister to consider the remaining criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 RegulationsMichelle GrauMember

Ratio Decidendi

Legal Principle Established

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