1517022 (Migration)

[2016] AATA 4492

1517022 (Migration) [2016] AATA 4492 (13 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Somaly Seng

VISA APPLICANTS:  Mr Narath San
Mr Sokpich San
Miss Kimchou San

CASE NUMBER:  1517022

DIBP REFERENCE(S):  BCC2015/1207501 OSF2015/042312

MEMBER:Ann Brandon-Baker

DATE:13 October 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 13 October 2016 at 2:25pm

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 applicants applied for the visas on 24 March 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. Relevantly to this matter the primary criteria include cl.300.215, cl.300.216 and cl.300.221.

3. 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 the delegate was not satisfied that the first named applicant and the review applicant had a genuine intention to live together as spouses.

4. The review applicant appeared before the Tribunal on 28 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone from Cambodia. 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 decision under review should be affirmed.

   BACKGROUND

7. The review applicant is an Australian permanent resident born in Cambodia on 5 August 1979 (37 years old). She was previously sponsored to Australia as the spouse of an Australian citizen and was married between 9 July 2005 and 13 October 2013 when the marriage ended in Divorce. There are two children from this relationship born on 12/05/2006 and 06/08/2008.

8. The visa applicant is a Cambodian national born on 2 December 1972. He has two children from his marriage which ended in May 2000 upon the death of his wife. The children were born on 11/12/1997 and 9/9/1999.

9. The parties claim to have met for the first time when the review applicant and her children were on holiday in Cambodia. On 30 March 2013 the review applicant met the visa applicant and his children whilst at Kampong Som beach. They talked and had lunch together. She found out that the visa applicant’s wife had died and that he had been raising their two children on his own. The parties kept in touch over the following year and were engaged in Cambodia on 25 October 2014. At the time of the engagement they stayed in Kompong Som and spent three days together as a couple.

10. The department’s decision record indicated a concern about the authenticity of the documents provided by the review applicant, noting that they had been recently issued (in 2014) and that this sometimes pointed to identity fraud. Those concerns were put to the review applicant who claimed that government officials recently visited his hometown and offered to create new identity documents and that they kept all the old ones.

11. As the review applicant had requested and received a copy of the department’s file, the Tribunal raised this concern with the review applicant and her adviser. There followed an inconclusive discussion where it was agreed that the documents on the department’s file were certified copies of re-issued documents, but that none of the originals were provided because the government kept them. The visa applicant told the Tribunal that the old ones were in bad condition and had to be replaced.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the parties have a genuine intention to marry and live together as spouses.

    359AA

13. At the end of the Tribunal hearing, the Tribunal put to the review applicant that whilst it may be difficult to identify one’s future intention to live together as spouses, one strong indicator was the extent to which they had made plans for the future of them together as a family.

14. The Tribunal put to the review applicant that the oral evidence they provided did not indicate that any serious thought had been given, let alone a meaningful discussion had about the future of the visa applicant’s children or their life together as a family. The Tribunal put to the review applicant that this information was important because it may lead the Tribunal to find that they did not have a genuine intention to live together as spouses which may in turn lead the Tribunal to affirm the decision under review.

15. The Tribunal put to the review applicant that it needed to be satisfied that she and the visa applicant had a genuine intention to get married. The Tribunal noted that such a thing was difficult to determine but a strong indicator was the extent to which the parties involved had discussed their marriage plans. The Tribunal put to the review applicant that the fact that they had not had detailed discussions about this matter, and the fact that the visa applicant thought that they would marry in a church when this was not something that she had mentioned to the Tribunal, didn’t support a finding that they had a genuine intention to marry. The Tribunal put to the review applicant that if it made such a finding, then it would then lead the Tribunal to affirm the decision under review. 

16. The Tribunal told the review applicant that she could respond to the information the Tribunal had put to her, seek an adjournment or ask for more time to respond. The review applicant consulted with her adviser and they asked the tribunal if they could provide a written submission by 12 October 2016. The Tribunal agreed.

17. The Tribunal received the review applicant’s response on 12 October 2016 and included some additional documentary evidence. These include the following:

    ·Letter from the marriage celebrant confirming that the parties have tentatively booked the 17 December 2016 for their marriage.

    ·Statutory declaration from the review applicant dated 9 October 2016

    ·Statement from the visa applicant dated 10 October 2016

    ·School records for the visa applicant’s children

18. Where relevant, the parties responses to information provided by the Tribunal are included in the discussion on findings and reasons below.

    Do the parties genuinely intend to marry?

19. 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.

20. In their oral evidence to the Tribunal it was evident that the parties had not had any meaningful discussions about their forthcoming wedding. The review applicant told the Tribunal that they had not had detailed discussions because they were going to wait until they knew the outcome of the Tribunal hearing. When pressed for more details, she claimed that they would get married within a month of his arrival and that the ceremony would follow the Khmer way. When further pressed, the review applicant told the Tribunal that she would wear traditional dress and invite the family. Encouraged to give more details she said that it would be a civil service but didn’t know where. She said that they would decide when her fiancé arrived but had given no further thought to where a reception may be held.

21. The visa applicant told the Tribunal that he had left the planning of the wedding to the review applicant and could not tell the Tribunal about venues or dates or any details of planning except that the review applicant wanted to get married in a church.

22. In her written submission to the Tribunal after the hearing, the review applicant did not address the matter of concern to the Tribunal which was the inconsistent evidence provided by the parties in relation to the conduct of their claimed forthcoming marriage. The review applicant stated that the reason why the visa applicant thought they would be getting married in a church was because he had seen Western movies where this occurred and assumed that was what would happen.  

23. The Tribunal understands that the venue or size of a wedding in itself is not a test of an intention to marry. However consistent evidence, particularly about whether it was to be held in a Church or not, surely is.

24. It is equally insufficient to have a piece of paper stating an intention to marry without such a document being backed up by evidence of a genuine intention to marry. Evidence of the latter surely includes shared knowledge or at least consistent evidence about the forthcoming marriage arrangements, something the parties to this claimed marriage do not have. The fact that the visa applicant now claims to have relied on Western movies to inform his view about his forthcoming marriage arrangements rather emphasises his lack of interest in, and commitment to, his marriage to the visa applicant than confirming it.

25. Equally, evidence of party celebrating the engagement between the parties is insufficient, in itself, to support an intention to marry. The engagement is after all in the past, and the intention to marry is in the future. It is not uncommon for engaged couples to separate prior to marriage and the test for the Tribunal is not only whether the parties had an intention to marry at the time of application, but whether the parties continue to have an intention to marry at the time of its decision.

26. Having considered and weighed the evidence provided by the parties as a whole, the Tribunal is not satisfied that the parties have a genuine intention to marry and therefore the requirements of cl.300.215 are not met.

    Do the parties genuinely intend to live together?

27. 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.

28. 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.

29. The oral evidence given by both parties at the hearing was largely consistent. For example, they knew how much each other earned and how much government benefits the review applicant received. Both gave consistent evidence about the amount of the visa applicant’s savings and the source of the funds that he would be able to bring to Australia. Both also gave evidence that those funds would be used to support their living expenses after the visa applicant and his children arrived in Australia and that they would make an application for a larger house from the public housing stock. The visa applicant would find a job and learn English.

30. The Tribunal acknowledges that it is difficult for the parties to establish joint ownership of assets and liabilities and share their finances whilst they live apart. The Tribunal therefore gives some positive weight to this aspect of their relationship.

31. The parties gave evidence that they spent nine days together in Cambodia in March 2016 when the review applicant and her children stayed at the visa applicant’s house with his father and his children. The visa applicant did not work during this time and they just cooked together and visited relatives.

32. The parties also gave consistent evidence about their previous relationships and the review applicant’s current health issues, so it is evident that they have spoken to each other about these matters as they would expect the Tribunal to ask such questions. These matters were confirmed in the parties’ written submission to the Tribunal after the hearing. The Tribunal also accepts that the parties held an engagement party in Cambodia and gives some weight to this aspect of the parties’ relationship.

33. However, during the hearing the Tribunal was also told by the review applicant that the visa applicant was learning English in a private school in Tak Mao. On the other hand the visa applicant said that he was not having any English language lessons but that his children were learning and they occasionally told him what they had learnt.

34. Neither of the parties gave any compelling or consistent evidence in relation to the plans they had together as a family if they were reunited in Australia. The review applicant told the Tribunal that she did not know and nor did she investigate where the nearest high school was that the visa applicant’s children could attend. When questioned by the Tribunal about how his children felt about coming to Australia, the visa applicant said he hadn’t asked them because in Cambodia, the culture was that the children just followed the parents.

35. The visa applicant similarly showed no interest his children’s future schooling in Australia saying that he would wait until he arrived before thinking about these matters. He claimed that they would have to learn English first before being placed in a school. In their submission to the Tribunal after the hearing, the parties claim that they have no need to discuss the children’s schooling in detail as they will enrol them in the local Government school, whichever one that is depending upon where they will live.

36. The parties gave evidence that all six of them would be living together in the review applicant’s two bedroom unit when they arrived in Australia. Both claimed that they would apply for a bigger house on the public housing list as soon as the visa applicant arrived. The review applicant told the Tribunal that she expected that it would take about a week but hadn’t made any actual inquiries of the housing authorities. In their post hearing submission they claimed that if the housing commission could not find them a larger house, they would seek a private rental.

37. The Tribunal accepts that it is difficult to make future plans when the parties are living in separate countries. However where children are also involved in the formation of a future family in a foreign country  the Tribunal needs to be satisfied that the parties have given proper consideration to the responsibility, care and support of any children and made arrangements accordingly.  The Tribunal is not satisfied that such consideration has been given.

38. In this case, the Tribunal is not satisfied that the parties’ lack of interest and planning for their future together as a family supports a finding that the parties genuinely intend to live together as spouses.

39. The Tribunal finds that the parties do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others nor does it find that the relationship between them is genuine and continuing. The Tribunal finds that they live separately and apart on a permanent basis.

40. Having carefully considered and weighed the totality of the evidence before it, the Tribunal finds that at the time of application, and at the time of decision, the parties did not have a genuine intention to live together as spouses, and therefore cl.300.216 and cl.300.221 are not met.

    CONCLUSION

41. For the reasons above, the Tribunal finds the primary visa applicants does not satisfy the criteria for the grant of the visa. As such, the Tribunal also finds that the secondary visa applicants do not meet the criteria for the grant of visas.

    DECISION

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

    Ann Brandon-Baker
    Member