1509887 (Migration)

[2016] AATA 3170

1509887 (Migration) [2016] AATA 3170 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms SUNIA LOEM

VISA APPLICANT:  Mr SILYANO BY

CASE NUMBER:  1509887

DIBP REFERENCE(S):  BCC/2014/284027 OSF2015/042519

MEMBER:Carolyn Wilson

DATE:28 January 2016

PLACE OF DECISION:  Adelaide

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 28 January 2016 at 11:29am

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 27 October 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.

3. The delegate refused to grant the visa on 3 July 2015 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because

4. The review applicant appeared before the Tribunal on 21 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Silyano By, and the visa applicant’s mother Ms Sothileen Srey. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer (Kampuchean/Cambodian) and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent.

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 the parties genuinely intend 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. The visa applicant is a 33 year old man who has never married.  He has travelled once to Australia for four weeks in 2012 to visit his mother, who is a permanent resident here.  He was introduced to the review applicant through his mother, who is friends with the review applicant in Australia.  He first met the review applicant in person in Cambodia when she brought money and gifts to him from his mother.  It was following this first meeting, and through speaking on the phone when he called his mother and the review applicant was there, that they began to contemplate a relationship together. 

10. The review applicant was born in Cambodia and migrated to Australia in 1996.  She is age 44 and has been twice married before.  She has a 13 year old daughter. 

11. The Tribunal accepts the review applicant was introduced to the visa applicant by the visa applicant’s mother.  The visa applicant’s mother gave oral evidence to the Tribunal that she is happy for her son to marry her friend because she believes they love each other.  She is not concerned by the age difference or that the review applicant has been married before.  She introduced her friend to her son because she likes her friend and wanted to help her.  The Tribunal has considered whether Ms Srey introduced the parties merely for a favourable visa outcome for her son, but considers that were he seeking a temporary visa only to enter Australia to apply for a more permanent one, he could have done so when he came in 2012 or could have applied for further visitor visas. 

12. The Tribunal is concerned that the parties have spent little time together in person before deciding to marry.  The Tribunal raised its concerns with the review applicant, particularly that she has had failed relationships before and that she is intending to marry someone she has not spent much time with in person. The review applicant spoke frankly with the Tribunal about her past relationships, the reasons why those marriages ended, and her desire to settle with a good man.  She believes the visa applicant is a good man because of what she has observed of him to date, and because she knows his mother and siblings in Australia well and they are good people. 

13. The Tribunal discussed the age difference with both applicants.  They both claimed not to be concerned by the age difference, and both gave evidence that it was not an obvious difference because the review applicant looks young for her age, and the visa applicant looks older than 33.  Having seen the review applicant in person and having seen photographs of the parties together, the Tribunal acknowledges this is the case.  They hope to have children together, but the visa applicant says if that is not possible he is content that he will be the father of the review applicant’s daughter, whom he already considers to be his daughter.

14. 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.

15. The parties have spent limited time together in Cambodia, and it is not possible to say they have set up a household together or combined their finances in any way.   However, the Tribunal gives considerable weight to the social recognition of the relationship.  The Tribunal accepts the visa applicant’s mother supports the relationship.  The Tribunal notes the engagement party in Cambodia was attended by both families in Cambodia, and that the visa applicant has met and spent time with the review applicant’s daughter.  The Tribunal also gives weight to the consistent oral evidence between the parties as to their future plans, which included the following:  living in the review applicant’s rental accommodation together until they can buy their own house; working together in agriculture, an industry they both have experience and interest in, and where the review applicant is able to find work for the visa applicant; and having children together if possible.   

16. The Tribunal retains some concerns about the amount of time the parties have spent together and whether they are ready to commit to marry.  However, this is not a decision for the Tribunal to make, but a decision for the parties.  After considering all the oral and written evidence provided, the Tribunal accepts the parties genuinely intend to marry and live together as spouses, and thus they meet the criterion in question.

17. The Tribunal finds at the time of application the parties did have a genuine intention to live together as spouses, as defined in s.5F, and therefore cl.300.216 is met.

18. 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

19. 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.

    Carolyn Wilson
    Member