1508243 (Migration)

[2016] AATA 4539

1508243 (Migration) [2016] AATA 4539 (21 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tan Loc Nguyen

VISA APPLICANT:  Mrs Thi Thien Trang Nguyen

CASE NUMBER:  1508243

DIBP REFERENCE(S):  OSF2014/026946

MEMBER:Michelle Grau

DATE:21 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:

·300.211, cl. 300.212, cl.300.213, cl. 300.214, cl. 300.215, cl. 300.216 and cl. 300.221 of Schedule 2 to the Regulations

Statement made on 21 October 2016 at 11:54am

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 22 July 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 cl.300.216

3. The delegate refused to grant the visa on 7 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 the parties genuinely intended to live as spouses.

4. The review applicant (the sponsor) appeared before the tribunal on 14 October 2016 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant and sponsor’s daughter. The tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent, who also attended the 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 the parties genuinely intended to live as spouses.

   Do the parties genuinely intend to marry?

8. 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.  

9. The tribunal accepts the couple planned to marry when the applicant comes to Australia. While in 2012, the couple agreed they would marry, their engagement ceremony plans were delayed until 2015 as the sponsor was unable to travel due to a work accident in mid-2013. The couple however continued to communicate and lodged the application in July 2014.  (a).  At review the sponsor provided a notice of intended marriage which is valid until 1 January 2018. The tribunal finds at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl.300.215.

   Do the parties genuinely intend to live together?

10. 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.

11. The visa applicant is divorced[1] Vietnamese female, with no children. The review applicant (the sponsor) is a divorced[2] Australian citizen, of Vietnamese background, with two children.

    [1] In 2010

    [2] In 2008

12. They were introduced by Thi Tinh Phan, who was formerly married to the applicant’s brother and is also the sponsor’s work colleague. The couple communicated from July 2012 and met in October 2012 in Vietnam at the applicant’s niece’s wedding. They decided to commit to marriage on the day they met. They spent a few weeks together. They did not have an engagement ceremony because the sponsor had returned to Australia and although he planned to return to Vietnam could not due to a work accident in July 2013.

13. The delegate refused the application as he was not satisfied of the commitment, social or household aspects of the relationship and was concerned at the quick decision to commit to each other the day they met.

14. However, the tribunal having heard from the sponsor, his daughter and the applicant at hearing is satisfied the parties genuinely intend to live together as spouses and to marry for the following reasons.

15. Firstly, it was apparent from the evidence at hearing that the couple had spent three months talking to each other by videolink on an almost daily basis and they spent time getting to know each other, talking about the future and compatibility. They were both a bit older with no responsibilities but lonely. They both were interested in dress, movies, Vietnamese food and came to care about each other. The sponsor provided the print outs of the video, voice and text calls made to each other from July 2012.

16. Secondly, like the delegate the tribunal accepts the plan was for the sponsor to return to Vietnam in 2013 and to have the formal engagement. However due to a work accident, in which his eye was damaged, the sponsor could not travel or return to Vietnam. The sponsor provided evidence of the injury and two operations in July 2013 and October 2013. Further at hearing sponsor gave evidence he was not allowed back to work until September 2014 due to the injury.

17. Thirdly, the couple did not immediately lodge their application in 2013 after meeting in person in 2012, but lodged it in July 2014. By then they had further developed their relationship as evidenced by continued communication and support for each other’s health problems.

18. Fourthly, even though the applicant had previously applied for a carer visa in 2010 to stay in Australia to look after her father, she withdrew the application because she did not want to care for him, but it was her siblings who wanted her  to. She returned to Vietnam.  The sponsor’s evidence of this was also consistent with the applicant’s. The tribunal has no concerns that the applicant is seeking this visa for migration purposes only and not genuine. The tribunal considers the applicant’s travel record clearly shows she has abided by previous visas. The tribunal accepts if she had wanted to remain in Australia, she would not have withdrawn the carer visa application and stayed.

19. Fifthly, the tribunal accepts the applicant, sponsor and sponsor’s daughter are credible witnesses. They gave free flowing, unhesitant and honest evidence, which was consistent with each other’s. Further, it was not rote learned evidence.  They provided much more evidence about the relationship such as that the applicant visited the sponsor’s mother a number of times before she passed away and helped to feed her. She also attended the funeral and a photograph was provided to corroborate that. The couple gave consistent evidence about what each other did in their spare time, for their work, what kind of movies, sport and music they liked and their future plans.

20. Sixthly, the sponsor has returned to Vietnam twice since the delegate’s decision, once in 2015 and once in 2016. They had their engagement ceremony on 2 August 2015.  Photographs of a traditional ceremony were provided to the tribunal.  

    Financial

21. Eighteen money transfers between September 2012 and December 2014 were provided at first instance and more recent ones were provided at review.

    
    

    The tribunal accepts the sponsor gives the applicant  $200 a month as evidenced by transfers. The tribunal accepts the applicant intends to sell her Vietnam property and bring the money to Australia to help purchase one in Australia. The tribunal accepts the couple plan to buy a house in Australia and the sponsor is looking around for one.

22. The tribunal accepts the couple intend to pool and share finances.

    Household

23. Evidence of temporary household registration and hotel receipts when the sponsor was in Vietnam was provided.  The sponsor confirmed he stayed at the hotel on the first night of arrival in Vietnam and then travelled out of the city to sponsor’s home. Each time he stayed with her at her home. They also travelled together to Danang in 2015 visit. The tribunal accepts the couple shared a household and the applicant, when in Vietnam, did most of the cooking, which the sponsor enjoyed. Photographs were also provided which corroborated the sponsor’s evidence at hearing.

24. The tribunal accepts they plan to buy a house together when in Australia and they want it to be big enough for the sponsor’s children to also come and stay if they want to.

25. The tribunal finds there is evidence they have shared a household three times in Vietnam for a month each time in 2012, 2015 and 2016. The tribunal finds they will continue to do so in Australia after the applicant arrives from Vietnam.

26. 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.

    Social

27. Some photos were provided evidencing the couple’s engagement in 2015 and also social activities in 2012, 2015 visits. The sponsor had 2016 visit photos on his mobile phone.The sponsor’s birthday was celebrated at the applicant’s father’s residence on 18 November 2012. The sponsor’s mother passed away on23 April 2014 and the applicant attended the funeral. A photograph was provided

28. The sponsor’s daughter also gave evidence about the relationship. She confirmed she did not have a close relationship with her father after her parents divorced. More recently their relationship has improved. The daughter told the tribunal the sponsor talked about the applicant a lot and she could see he was much happier. He told her the applicant was a dressmaker of traditional Vietnamese dress.  He talks about getting a house, buying a car for the applicant and wanting children with her.  The daughter believes the relationship is true and genuine.

29. The sponsor told the tribunal he told his work colleagues about his relationship at the beginning, but he did not tell his children until 2015 because they were young and he did not have a close relationship with them. His relationship with the children has improved and he talks to them about the applicant. His sister and nephews and nieces attended the engagement ceremony which was evidenced by the photos. He said his flatmate knows about the relationship from the beginning.

30. At hearing the tribunal expressed concern that there were no written statements by friends or relatives. The agent said these were not provided because the first agent in Vietnam did not provide them. The tribunal noted statements could still have been provided at review by the applicant and the current agent and allowed seven days to obtain statements.  After hearing a number of statements from family and friends were provided attesting to the genuineness of the relationship and the tribunal accepts these.

31. The tribunal accepts there is some evidence of social recognition of the relationship by the applicant’s family and friends and the sponsor’s family in Vietnam. The tribunal accepts the sponsor’s friends, work colleagues and children in Australia recognise the relationship.

    Commitment

32. The tribunal accepts the couple communicated by phone, video call and message frequently from July 2012; they met in person on 15 October 2012 and decided they wanted to marry. The tribunal accepts they planned to be engaged the next year when the sponsor would return, but due to a work accident in July 2013, he could not return for more than a year.

33. The sponsor has since travelled to Vietnam on his annual holidays in 2015 and 2016. They had a traditional engagement ceremony in 2015.

34. The tribunal accepts the couple gave each other support by internet videolink, and phone in respect of each of their health problems. The tribunal accepts the documentary (and oral evidence) they have been infrequent almost daily contact since July 2012, for significant periods of time each time.

35. As well it was apparent at hearing the applicant had visited the sponsor’s mother with eth applicant in 2012. Further, since then she visited the sponsor’s mother from time to time and helped to feed and care for her until her death in 2014. The sponsor could not travel to attend the funeral and the applicant attended for him as well.  The tribunal considers this is strong evidence of the couple’s commitment to each other.

36. At hearing the sponsor and applicant gave consistent evidence about their hobbies, interest and type of films, music and sport they enjoyed and future plans. As discussed above the tribunal found their evidence clear, consistent, honest and credible without rote learning. The applicant also had good knowledge of the applicant’s children’s ages and circumstances ( ie. work/ study).

37. The tribunal finds also the sponsor’s daughter evidence was consistent and honest. It was clear from her evidence that the sponsor talked to her a lot about plans to buy a house, car and settle with the applicant.

38. The tribunal finds there is strong evidence of a lifetime commitment.

39. Based on the oral evidence at hearing, further documents provided pre and post hearing, the tribunal finds at the time of application the parties did a genuine intention to live together as spouses, and therefore cl.300.216 is met.

    Other criteria

40. The tribunal finds the sponsor is an Australian citizen who continues to sponsor the applicant, who is over 18 years. The tribunal finds the applicant and sponsor has personally met and are known to each other. The tribunal finds the sponsor is not prohibited from being a sponsor. Therefore the tribunal finds the applicant meets cl. 300.211, cl. 300.212, cl.300.213 and cl. 300.214.

41. Having found the parties genuinely intend to marry and to live together as spouses at time of application. The tribunal also finds that time of decision the parties continue to genuinely intend to live together as spouses and to marry.  The tribunal is satisfied the applicant continues to satisfy cl.300.211 and clauses 300.214 – 300.216. Therefore the applicant meets clause 300.221

42. 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

43. 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.300.211, cl. 300.212, cl.300.213, cl. 300.214, cl. 300.215, cl. 300.216 and cl. 300.221 of Schedule 2 to the Regulations

    Michelle Grau
    Member