1516520 (Migration)
[2016] AATA 4330
•1 September 2016
1516520 (Migration) [2016] AATA 4330 (1 September 2016)
DECISION RECORD
DIVISION: Migration & Refugee Division
REVIEW APPLICANT: Narode Chhin
VISA APPLICANTS: Sreymom Cheaho
Hour Ly
Muny Ly
CASE NUMBER: 1516520
DIBP REFERENCE(S): BCC2015/589007 OSF2015/042255
MEMBER: P. Wood
DATE: 1 September 2016
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
·cl.300.211 of Schedule 2 to the Regulations;
·cl.300.214 of Schedule 2 to the Regulations;
·cl.300.215 of Schedule 2 to the Regulations;
·cl.300.216 of Schedule 2 to the Regulations; and
·cl.300.221 of Schedule 2 to the Regulations.
Statement made on 1 September 2016 at 1:01pm
STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW
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).
The visa applicants applied for the visas on 11 February 2015. 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.
The delegate refused to grant the visas on 2 November 2015 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because there is insufficient evidence to demonstrate that the applicants had been or intend to live together in a genuine relationship. A copy of the delegate’s decision record was provided to the Tribunal by the review applicant.
The review applicant appeared before the Tribunal on 17 August 2016 to give evidence and present arguments with the assistance of an interpreter. The Tribunal also received oral evidence from the visa applicant by conference telephone with the assistance of an interpreter. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The review applicant was represented in relation to the review by a registered migration agent.
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 applicants genuinely intend to live together as spouses.
Does the visa applicant intend to marry an eligible person?
Clause 300.211 requires that at the time of application the applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal accepts that at the time of application the review applicant was an Australian citizen. Departmental records confirm that the review applicant was granted Australian citizenship on 21 May 2002.
The Tribunal has also had regard to a letter from Mr Jim Wetherall, registered marriage celebrant No. A 3563 of Noble Park, Victoria. The Tribunal accepts that the applicants had engaged a celebrant and were intending to have their marriage legally solemnised in Melbourne after the visa applicant arrives in Australia. Accordingly, the Tribunal finds that the requirements of cl.300.211 are met.
Have the applicants met in person and are they known to each other personally?
Cl. 300.214 requires that at the time of application the applicants have met and are known to each other personally. This requires the applicants to have come together in each other’s company or physical presence: MIAC v Yucesan (2008) 169 FCR 202.
Based on the documentary evidence provided to the Department of Immigration and Border Protection, oral evidence and the other documentation received by the Tribunal, the Tribunal is satisfied the applicants have met and were known to each other personally before the visa application was lodged. Accordingly, the Tribunal finds that the requirements of cl.300.214 are met.
Do the applicants genuinely intend to marry?
Cl. 300.215 requires that at the time of application the applicants have a genuine intention to marry, and that the marriage is intended to take place within the visa period. Based on the oral evidence of the applicant and the review applicant, the Tribunal accepts that the applicants were engaged on 28 December 2013.
The Tribunal acknowledges the concerns of the delegate regarding the rapid development of the relationship, and the fact that the visa applicant and the review applicant had only spent a short period together. The Tribunal however does not share the concerns of the delegate.
The Tribunal has had regard to correspondence from the marriage celebrant as well as the applicants’ oral evidence regarding their wedding plans in Australia. The Tribunal accepts that the applicants had made necessary arrangements with the marriage celebrant to have their marriage legally solemnised in Melbourne. The applicants’ consistent evidence is that they intend to marry on 27 December 2016. The Tribunal finds that at the time of application the applicants had a genuine intention to marry and satisfy the requirements of cl.300.215(a). The proposed date for the marriage is within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met.
Do the applicants genuinely intend to live together?
Clause 300.216 requires that at the time of application ‘the applicants 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 applicants are spouses at the time of application or time of decision, an investigation of the applicants’ intentions with regard to the definition of spouse in legislation may assist in determining the applicants’ aspirations.
The Tribunal has had regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention.
Financial aspects of the relationship
The delegate found that there was insufficient evidence in relation to the financial aspects of the relationship.
There is limited information before the Tribunal to establish that the applicants have combined financial affairs or that they have pooled their assets and liabilities. At the outset however, the Tribunal is cognisant that the applicants are not living together so it would not expect that they would have invested in joint ownership of real estate or other major assets or joint liabilities at this stage in their relationship.
The applicants gave consistent evidence in relation to the financial aspects of the relationship.
The review applicant gave evidence that he is employed at a strawberry farm as a supervisor. He gave evidence that he earns approximately $600-$800 per week net. The review applicant gave evidence that he lives in his own home and has mortgage commitments of approximately $1400 each month.
The visa applicant gave evidence that she works in a retail environment selling Cambodian food, tea and coffee. The applicants gave consistent evidence that the review applicant sends money to the visa applicant when she requires it. The Tribunal has no reason not to accept this evidence.
The Tribunal finds there has been financial support from the review applicant to the visa applicant and this is consistent with that which occurs between people with an intention to live together as spouses.
The Tribunal accepts that the applicants have partly pooled their financial resources and shared their day-to-day expenses during their brief periods of cohabitation. The Tribunal is satisfied that the applicants intend to pool their financial resources in Australia.
The Tribunal has found that the financial aspects of the relationship do not weigh against a finding that the applicants intend to live together as spouses in the circumstances of this case.
Overall the Tribunal finds that the financial circumstances of the applicants are consistent with what could be reasonably expected of persons in their circumstances. Given they currently live in different countries, the Tribunal places limited weight on this aspect of the relationship.
Nature of the household
A relevant aspect of consideration of the nature of a household is the living arrangements of the persons.
The evidence before the Tribunal is that the review applicant travelled to Cambodia for the engagement on 25 May 2014. The evidence before the Tribunal is that the applicants held an engagement ceremony at the visa applicant’s house on 6 June 2014 and committed to a shared life together on this date. The applicants claim that, after the engagement, they continued to spend time together visiting relatives, temples and other places in Phnom Penh until the review applicant returned to Australia on 28 June 2014. The Tribunal has no reason not to accept this evidence.
The Tribunal accepts the evidence that the applicants have cohabitated together when the review applicant has travelled to visit the visa applicant.
In relation to the applicants’ household, as they do not presently have a joint household this factor has been given less weight.
Social aspects of the relationship
The Tribunal has had regard to the documentary and oral evidence provided to the Department, and the Tribunal, that the applicants present themselves as being engaged to marry to each other. The Tribunal has also had regard to the statements submitted by the applicants. The applicants gave consistent evidence that they have undertaken social activities together in the company of the visa applicant’s family and friends and that in the opinion of their families and friends, they are considered the fiancé of each other both at the time of the application and the time of the decision.
The Tribunal places some weight on the social recognition of the relationship.
Nature of the commitment
The Tribunal is satisfied that the applicants’ have met and spent time together. The Tribunal accepts that the applicants have also maintained regular contact, by telephone and other means since they met.
Noting the concerns of the delegate, the Tribunal questioned the applicants about the limited time they have spent together face to face, and the reasons why they made a decision to get married so quickly. The Tribunal accepts their evidence that they felt immediate affection for each other and having spent time speaking over the telephone, they did not think their decision was fast or hasty. The Tribunal accepts the evidence of the visa applicant and the review applicant in this regard, and considering all of the evidence cumulatively, the Tribunal does not share the concerns of the delegate.
The review applicant and the visa applicant were open and honest in their evidence. They openly talked about their families, their lives, their pasts and their future. They talked about the way they met and how they developed an emotional attachment to each other and how their relationship has gone from strength to strength. They presented as a couple very committed to having a future together. Both applicants showed a genuine level of concern for each other’s welfare, life and future. The Tribunal is satisfied that they demonstrated a knowledge of each other’s lives and plans for the future that are commensurate with a couple who intend to live together as spouses.
The Tribunal is satisfied from the oral and documentary evidence that the applicants have plans to marry in Australia after the visa applicant enters Australia.
The Tribunal accepts from the oral evidence that the applicants’ see their relationship as long-term and that they both derive a significant degree of companionship and emotional support from each other.
The Tribunal has taken into account the applicants’ respective ages, backgrounds and life experience, and accepts that neither party was in a relationship with any third party at the time of the application, or that this is the case at the time of this decision.
Having considered all the evidence, the Tribunal finds that at the time of application the applicants did have a genuine intention to live together as spouses, and therefore cl.300.216 is met.
Do the applicants continue to meet time of application requirements?
Cl. 300.221 requires that at the time of decision, the applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, that applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the applicants have met and are known to each other personally; that the applicants genuinely intend to marry and intend to do so during the visa period; and that the applicants genuinely intend to live together as spouses.
The Tribunal finds that the review applicant continues to be an Australian citizen at the time of decision, and is satisfied that the applicant intends to marry an Australian citizen. The Tribunal has had regard to the consistent oral evidence of the applicants that their marriage will take place after the applicant arrives in Australia. The Tribunal is satisfied that they have a wedding celebrant who has been engaged to perform their marriage ceremony. Therefore cl.300.211 continues to be met at time of decision.
The Tribunal is satisfied that the applicants have met and are known to each other personally. The Tribunal is satisfied that cl.300.214 continues to be met at the time of decision.
The Tribunal is satisfied therefore that the applicants continue to have a genuine intention to marry and that that marriage is intended to occur within the visa period, and finds that cl.300.215 continues to be met at time of decision. Based on the evidence discussed above, the Tribunal finds that the applicants continue to have a genuine intention to live together as spouses, and finds therefore that cl.300.216 continues to be met at time of decision.
Given the findings above, the Tribunal finds that the applicant continues to satisfy cl.300.211, cl.300.214, cl.300.215 and cl.300.216 at the time of its decision and accordingly, cl. 300.221 is met.
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.
As the other visa applicants applied on the basis of being a member of the first named visa applicant's family unit, those applications will be determined by reference to the outcome of the first named visa applicant's application on remittal to the Department for reconsideration.
DECISION
The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
· cl.300.211 of Schedule 2 to the Regulations;
· cl.300.214 of Schedule 2 to the Regulations;
· cl.300.215 of Schedule 2 to the Regulations;
· cl.300.216 of Schedule 2 to the Regulations; and
· cl.300.221 of Schedule 2 to the Regulations.
P. Wood
Member
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