1517567 (Migration)

[2016] AATA 4735

1517567 (Migration) [2016] AATA 4735 (30 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr KIMCHHAN LENG

VISA APPLICANT:  Ms SREYLEAP NORN

CASE NUMBER:  1517567

DIBP REFERENCE(S):  BCC2015/1647769 OSF2015/042351

MEMBER:Kate Millar

DATE:30 November 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 30 November 2016 at 5:16pm

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 Ms Norn 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 24 April 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 Ms Norn. The primary criteria include cl.300.216 which requires that the parties genuinely intend to live together as spouses.

3. The delegate refused to grant the visa on 5 November 2015 on the basis that Ms Norn did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied they genuinely intend to live together as spouses.

4. Mr Leng appeared before the Tribunal on 30 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Norn, Mrs Thyda Chea and Mr Chorn Hem.  The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Do the parties genuinely intend to live together?

6. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’.

7. The term ‘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. People 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).

8. 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).  These are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment. 

9. While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an examination of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.

10. The main difficulty in this case was that Mr Leng and Ms Norn both gave oral evidence that was inconsistent with Ms Norn’s prior written statement provided with the application.  They were also inconsistent and vague about dates as well as some details such as who approached Ms Norn’s parents to discuss marriage on Mr Leng’s behalf.   I have carefully considered whether this affects their credibility.  They gave consistent evidence on other significant and relatively detailed matters, such as whether Ms Leng’s mother attended the engagement ceremony and when they visited her after the ceremony they gave consistent oral evidence.  They were both inaccurate about dates.  They did not provide identical evidence about who approached Ms Norn’s parents about the marriage, but were consistent in the parties involved in the inception of the relationship and the agreement that they would be married.  They both said Mr Phon Samley, Ms Norn’s father’s godson, arranged for them to be introduced and that a close family friend Ms Ong Sophal acted in Ms Leng’s mother’s place because his mother is too ill to travel.

11. The majority of the inconsistency was between the parties’ oral evidence and Ms Norn’s prior statement that accompanied the application.  Ms Norn’s statement was provided in English.  The parties are unrepresented in this matter and Ms Chea has been helping them with the paperwork.  English is also not Ms Chea’s first language.  Ms Chea said Ms Norn’s statement was provided in Khmer and translated to English.  It is not clear who translated this document, as it does not have the stamp of a translation service.  In the circumstances where it would not seem any of the documents were produced by an accredited translator and were developed without the assistance of a representative and may well have been generated second hand I place greater weight on the oral evidence of the parties and prefer this to the written statement. 

12. It was difficult to elicit evidence from the parties about when they had first discussed getting engaged.  However both said   Ms Norn’s parents were approached to agree to the engagement.  They were consistent about the date of the engagement celebration, and provided photographs of a large function.  They were consistent about who from Mr Leng’s family had attended the celebration, and specifically that his mother was not able to attend because she was unwell. 

13. I was not assisted by the evidence of Mr Hem. He gave evidence that was inconsistent with both the parties’ oral evidence and the telephone records provided.  I appreciate he may have been attempting to help Mr Leng, but I have not had any further regard to his evidence and do not consider it reliable. 

14. On balance, and having had the opportunity to speak to the parties over a relatively lengthy hearing, I found them to be genuine, if a bit confused at times, about the nature of their relationship.  This impression was supported by other documents provided by Mr Leng and Ms Norn, such as receipts for money sent by Mr Leng to Ms Norn and telephone records showing they have been consistent in communicating with each other.  

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 observations and findings.

16. The financial aspects of the relationship include joint ownership of assets, and joint liabilities; extent of pooling of financial resources, any legal obligations owed to the other party; any sharing of day-to-day household expenses.

17. On this case Mr Leng has been sending between USD100 and USD1,000 approximately monthly to Ms Norn.  There is a gap in this financial support between February and September 2016, and Mr Leng said this was because he did not have work.  I looked at the timing of the cessation of support, and the financial support extends after the date the delegate made the decision and recommences before Mr Leng was invited to this hearing.  As a result, I do not consider the break in support has any connection with this application. 

18. Ms Norn does not work and I consider they pool financial resources as Mr Leng provides her with financial support.  Mr Leng works in a vineyard pruning and fixing fences, and I consider his financial support of Ms Norn in the context of his limited income shows a significant commitment to the relationship. 

19. The nature of the household includes any joint responsibility for care and support of children, parties’ living arrangements, and any sharing of housework.

20. This has limited significance in this case as the parties live in separate countries.  Both said it would be inappropriate for them to share accommodation unsupervised if they are not married.  Both gave consistent evidence that when they went to visit Mr Leng’s mother after the engagement ceremony they both stayed at her house.  Ms Norn gave evidence consistent with Mr Leng of the name of the person who lives with his mother and the nature of the relationship with his mother. 

21. The social aspects of the relationship include whether parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities. 

22. Ms Chea attended the hearing and gave evidence.  Mr Leng lives with her, and the parties plan to live with her if Ms Norn comes to Australia.  She said her parents have been very close to Mr Leng’s parents for a long time, which is why her mother Ms Ong Sophal acted in his mother’s place.  Mr Leng lived with her parents when he was in Cambodia.  Ms Chea supports the relationship as genuine.

23. A number of statutory declarations and statements were provided both with the visa application and to the Tribunal in support of the relationship.

24. Mr Leng was able to give the names of all seven of Ms Norn’s siblings, the occupation of one of her brothers, and gave consistent evidence to Ms Norn on the marital status of two of her sisters, the number of children some of the other siblings have and the approximate ages of the children.  I consider this displays detailed knowledge of Ms Norn’s family that supports the family involvement in the relationship and also supports the parties’ evidence of the communication they have with each other. 

25. The parties provided a copy of the invitation to the engagement celebration and photographs of a considerable number of guest at this celebration.  They have also provided photographs of both of them together at other times and locations.  They gave consistent evidence on places they visited together after the engagement celebration. 

26. The nature of the commitment includes the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term.  Some of these factors are of limited relevance to whether they intend to live together as spouses.  I am satisfied on the telephone records and the oral evidence of the parties that they are in regular contact with each other.  They gave consistent evidence of their immediate plans if Ms Norn comes to Australia, in that they will marry, Ms Norn will study English and they will live with Ms Chea.  I accept they have a genuine commitment to a long term relationship. 

27. Having considered these factors I am satisfied the parties genuinely intend to have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and they do not intend to live separately and apart on a permanent basis.  

28. As a result, I find that at the time of application the parties had a genuine intention to live together as spouses, and that Ms Norn meets cl.300.216 of Schedule 2 of the Regulations.

29. Given these 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

30. 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.

    Kate Millar
    Member