1507423 (Migration)

[2016] AATA 3986

1507423 (Migration) [2016] AATA 3986 (14 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Vann Yin

VISA APPLICANTS:  Mrs Tharin Mom
Miss Salin Seang

CASE NUMBER:  1507423

DIBP REFERENCE(S):  OSF2014/051283

MEMBER:Kira Raif

DATE:14 June 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 June 2016 at 3:37pm

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 visa applicant is a national of Cambodia, born in July 1974. She applied for the visa on 10 June 2014. The application includes her child. The delegate refused to grant the visas on 21 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 14 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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.

5. 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.

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 marry?

7. The Tribunal questioned the review applicant and the visa applicant about the arrangements made for the wedding and has formed the view that the parties have not made adequate arrangements, nor given sufficient thought, to the event.

8. The review applicant informed the Tribunal that no arrangements have been made to date, because they made arrangements in the past but the visa was not granted. The review applicant said the arrangements will be made after the visa applicant travels to Australia. The review applicant said the marriage will take place within three weeks of her entry to Australia and that 100 guests will attend the wedding. In the Tribunal’s view, it is unrealistic to make all arrangements for such a large group of people within three weeks of the visa applicant’s entry to Australia.

9. The review applicant could not recall the name of the marriage celebrant he had approached but explained to the Tribunal that she is an Australian and does not speak Khmer. The visa applicant had no knowledge of the celebrant and the review applicant explained that she does not understand the system in Australia.  It is unclear to the Tribunal why the parties would choose to approach a marriage celebrant with whom they are unable to communicate and decide to go through a service they cannot understand or meaningfully participate in. The review applicant explained to the Tribunal that his children have gone through the same celebrant but their English is better than the applicant’s and the sponsor’s. The review applicant also said his daughter will act as an interpreter but in the Tribunal’s view, if the parties wanted to make the process meaningful to them, it may have been more sensible to approach a celebrant with whom they are able to communicate.

10. In oral evidence to the Tribunal the visa applicant appeared to have little knowledge about the marriage. For example, the visa applicant said the sponsor did not tell her about the marriage celebrant or whether he had approached one. The Tribunal is mindful that the parties displayed very detailed knowledge about each other’s circumstances in relation to other aspects of their lives and in light of that, the visa applicant’s lack of knowledge about the proposed marriage arrangements – and her claim that the review applicant has not told her about the marriage celebrant at all – is of concern.

11. There are other aspects of the wedding plans that the parties appear not to have discussed. For example,

    a.The review applicant said none of the visa applicant’s family will attend the wedding. The review applicant said her aunt lives in Australia and will attend

    b.The review applicant initially said the visa applicant’s mother will not come to the wedding. He then said she might come if she gets the visa. He ultimately said that he does not want the mother to come because she needs to look after the business. The visa applicant initially said her mother will not come because she is old and had never travelled, but later said if she gets the visa, she wants her mother to come to the wedding and that they will apply for a visa for her mother. The visa applicant said she has not discussed the matter with her fiancé.

    c.The review applicant said the clothing for the wedding will be brought from Cambodia. The visa applicant said the clothing can be bought in Australia and she does not need to bring clothes with her.

12. Although none of these things are of great significance, the Tribunal’s concern is that the parties do not appear to have held meaningful discussions concerning the registration of their marriage in Australia.

13. The Tribunal is also concerned by the fact that the parties claim to have formed a commitment to marriage in early 2013 but have not married in the past three and a half years. The review applicant explained to the Tribunal that they already had the engagement in Cambodia in front of the visa applicant’s family and friends and he wants to have one in Australia with his family and friends but the Tribunal is mindful that three and a half years is a very long time for the couple not to register marriage if they are committed to it. The Tribunal is concerned that they are only willing to marry in Australia and if the visa applicant was not able to come to Australia, she appear to have little interest in registering marriage with the sponsor. The review applicant informed the  Tribunal that the visa applicant travelled to Australia in 2012 as a visitor but has not made any attempt to obtain a visitor visa since then. While it is not possible to predict whether she could have obtained a Visitor visa, the Tribunal’s concern is that she made no attempt to try to get the visa. That is, the couple only wish to marry in Australia and yet the visa applicant made no attempt to travel to Australia since 2012. The Tribunal is not satisfied that the partners made every effort to register marriage.

14. Overall, the Tribunal has formed the view that the couple have made minimal plans, at best, concerning the registration of their marriage. The Tribunal is not satisfied the couple had meaningful conversation about the registration of their marriage in Australia. These matters are of particular concern to the Tribunal as the Tribunal has formed the view that they have extensive discussions about other aspects of their lives. The Tribunal is not satisfied, in light of these concerns, that the parties genuinely intend to marry. The Tribunal is not satisfied that the requirements of cl.300.215 are met. The second named applicant does not meet cl. 300.221.

    Do the parties genuinely intend to live together?

15. 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.

16. The Tribunal questioned the review applicant about the development of the relationship. The Tribunal is concerned that the review applicant’s answers appear to have been learned or memorised. For example, he stated the precise date when the parties first met in September 2012, even though that date was nearly four years earlier, and he was able to state the precise number of times they met when the visa applicant visited Australia in 2012. (The review applicant explained that he checked the information on the application form.) While the Tribunal would expect the parties to have some recollection of these events, and would expect the review applicant to recall the year and the month when the met the visa applicant, the Tribunal would have no expectation for the review applicant to recall the precise date when that happened.

17. The Tribunal is mindful that the parties spent little time together before making the decision to marry. The partners first met in September 2012, the review applicant said they saw each other six times when the visa applicant was in Australia and they held the engagement in February 2013. The parties had known each other for only a few months before making the decision to marry. The review applicant explained that they communicated well and got along well and she was nice and respectful but the Tribunal is not convinced that the visa applicant was the first nice person he met and spoken to or that this is sufficient for the couple to form a commitment to marriage in such a short time.

18. As noted above, the Tribunal is also concerned by the fact that the parties have not yet registered marriage, despite forming commitment to marriage some three and a half years earlier. Although the Tribunal acknowledges the review applicant’s evidence that he wants to marry in front of his family and friends, the Tribunal also acknowledges that a very long time has passed since the commitment was formed, without the marriage being registered. The Tribunal is concerned that the parties’ commitment to marriage appears to be predicated upon the visa applicant entering Australia.

19. The review applicant informed the Tribunal he travelled to Cambodia five times since 2012. He said on the first two occasions he stayed with a friend and not with the visa applicant because they were not yet married, however, they did stay together on the subsequent three occasions, despite being unmarried, because they wanted to have a child. The Tribunal acknowledges that the couple had spent a fair amount of time together during the visa applicant’s visits but the Tribunal also notes the review applicant’s evidence to the Tribunal that during his visits the visa applicant continued to work in her business. He claims they spent time together after she stopped working or on occasions when they travelled around Cambodia. While the Tribunal accepts that evidence, the Tribunal finds that the time they spent together is limited.

20. The Tribunal accepts that during the review applicant’s more recent visits to Cambodia, the couple established a joint household. The Tribunal accepts that they travelled together. The Tribunal acknowledges their stated plans to live together in Australia.

21. There are several statements from third parties submitted with the primary application and to the Tribunal, as well as photographic evidence of the couple’s social activities. The Tribunal accepts that the relationship is known to others and is recognised by friends and family.

22. The visa applicant provided with her application evidence that the couple have a joint account in Cambodia. The Tribunal questioned the review applicant about the need for him to have an account in Cambodia, given that he lives in Australia. He said that it is easier for him to transfer money into that account but the Tribunal is mindful that it would have been easy enough for him to transfer funds even if there was no joint account. The review applicant said he sends money through the agency and there should be little difference whether he transfers money to the visa applicant directly or into the joint account and the Tribunal is not convinced that he account was opened for ease of use. The review applicant also said they opened the account to show that they have a joint account. In the Tribunal’s view, they did so only for the purpose of showing evidence in support of the visa application.

23. The Tribunal accepts that the review applicant has been sending money to the visa applicant. The Tribunal notes that he has limited income in Australia while the visa applicant’s income is reasonable, by local standards. There does not appear to have been any good reason for the review applicant to be sending funds to the visa applicant. The review applicant explained that the visa applicant does not need the money but when he visits Cambodia and if he does not have enough funds, he would take the money from the account. If that is the case, there appears to be little purpose in the money being sent to the visa applicant. Again, the Tribunal is concerned that the transfers were made for the purpose of the application.

24. The primary decision record, a copy of which the review applicant provided to the Tribunal, indicates that when questioned about future plans, the visa applicant said she and the sponsor they had not discussed these. The Tribunal asked the review applicant’s comments on that information. He agreed that they had not discussed their future together until asked by Immigration. The Tribunal considers it highly problematic that the partners who claim to have a committed relationship and to want to live together as spouses, would have no discussion about their future together unless required to do so by Immigration. In the Tribunal’s view, that offers a strong indication that the couple do not intend to live together as spouses and that the various arrangements they have made are in response to the visa requirements and do not reflect their genuine commitment to the future relationship. 

25. The Tribunal also questioned the parties about some aspects of their future affairs. For example, the Tribunal asked the visa applicant and the review applicant what their plans were with respect to the visa applicant’s business and property in Cambodia if she is granted the visa. The review applicant said the visa applicant will sell the business and the property and that her mother will move to her own hometown to stay with her family. The visa applicant said she will lease one floor of the property and her mother can continue to live in that property. She said she might sell the property eventually if, or when, she needs the money. the Tribunal acknowledges that both partners spoke about the sale of the property, however, the review applicant suggested the visa applicant would sell if she comes to Australia while the visa applicant said she has no immediate plans to sell and may sell some time in the future. The Tribunal is not convinced that the parties have talked about the issue and the review applicant confirmed in his evidence to the Tribunal that they discussed the sale of the business but not the sale of the property.

26. The Tribunal also questioned both partners about the secondary applicant’s study in Australia. Both said she has not completed her university course. The review applicant said she does not intend to complete the university course in Australia and will look for work after doing an English course. He said that if she cannot find work, she might complete her studies. The visa applicant said that her daughter might study at university if she qualifies for studying in Australia but she could not explain what would quality her daughter for studying in Australia and said that neither she nor the sponsor made any inquiries about what would be needed for her to enter university in Australia. Although the Tribunal accepts the review applicant’s explanation that the visa applicant has little understanding of how these matters work in Australia, there is no reason he could not have explained such things to her. The Tribunal is concerned that the parties appear to have had no discussion about a matter of such significance as the daughter’s immediate future.

27. The visa applicant spoke to the Tribunal about the allegation that the relationship is not genuine. She said that the person who made an allegation wanted money from her but she refused to give it. The Tribunal acknowledges the information in the primary decision record that such an allegation was made, however, given the vagueness of the allegation and the Tribunal’s inability to test the evidence, the Tribunal does not consider it is of probative value and gives it no weight.

28. The Tribunal acknowledges that the parties had good knowledge about each other’s circumstances. The Tribunal gives weight to the fact that the sponsor made several trips to Cambodia, that to date, the relationship has existed for a period exceeding three years and that the couple spent time in each other’s company. The Tribunal accepts that they socialised together and that the review applicant provided financial support to the visa applicant. Against these considerations, the Tribunal has formed the view that the partners did not have adequate discussion about their marriage in Australia and about their future together. The Tribunal has formed the view that at least some aspects of the evidence had been prepared for the benefit of the visa application.

29. Having considered all the circumstances of this case, the Tribunal is not satisfied that the parties genuinely intend to live together as spouses. The Tribunal is not satisfied that the visa applicant meets cl. 300.216. The second named applicant does not meet cl. 300.221.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member