1605714 (Migration)

[2016] AATA 4540

1605714 (Migration) [2016] AATA 4540 (21 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Thanh Nhan PHAM

VISA APPLICANT:  Ms Thi Ngoc Linh BUI

CASE NUMBER:  1605714

DIBP REFERENCE(S):  OSF2015/070659

MEMBER:Glynis Bartley

DATE:21 October 2016

PLACE OF DECISION:  Sydney

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.300.211, 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 5:06pm

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the visa applicant, Ms Thi Ngoc Linh Bui, and the review applicant, Mr Thanh Nhan Pham, genuinely intend to marry and live together in a spousal relationship, both at the time of application and at the time of this decision. 

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant Ms Bui a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

3. Ms Bui applied for the visa on 2 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. Relevantly to this matter the primary criteria include whether the parties intend to marry and live together as spouses at the time of application and at the time of decision.

4. The delegate refused to grant the visa on 16 March 2016 on the basis that Ms Bui did not satisfy cl.300.215, cl.300.216 or cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that Ms Bui and Mr Pham genuinely intended to marry and live together as spouses.

5. On 22 April 2016 Mr Pham lodged an application for review of the Department’s decision with this Tribunal.

6. Mr Pham appeared before the Tribunal by video conference from Rockhampton on 11 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence by video-conference from Mr Phuc Van Nguyen and Ms Muoi Thi Nguyen and by telephone from Ms Bui. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese language. Mr Pham was represented in relation to the review by his registered migration agent who appeared at the hearing.

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

   BACKGROUND

8. Ms Bui is a 29-year-old Vietnamese national. She has not declared any previous marriages or de facto relationships. Ms Bui’s father is deceased. Her mother and four sisters reside in Vietnam. Ms Bui is not currently in paid employment but is studying to become a hairdresser and nail artist.

9. Mr Pham is a 35-year-old Australian citizen by grant. He was born in Vietnam and migrated to Australia in 2006 after being granted a Temporary Work (Skilled) visa (Subclass 457). Mr Pham has declared one previous marriage to Ms Muoi Thi Nguyen in 2008 that ended in divorce in 2014. There were no children of that relationship. Mr Pham sponsored Ms Nguyen and her daughter from a previous relationship to migrate to Australia. Mr Pham is a full-time worker at a meat processing factory.

10. The parties stated that they met through Mr Pham’s sister in April 2013 and communicated through Skype and telephone. They first met in person in Vietnam on 20 December 2013 and Mr Pham proposed marriage to Ms Bui on 29 December 2013. The parties stated on the application that the intended date of their marriage was 26 January 2016.

11. A delegate of the Department interviewed Ms Bui on 25 August 2015.

12. In the Decision Record, a copy of which Mr Pham’s migration agent provided to the Tribunal, the delegate placed weight on movement records which showed that Mr Pham travelled to Australia with his ex-wife, Ms Nguyen, and his step-daughter in January 2014, which was 11 months after he claimed that he and Ms Nguyen had separated. The delegate raised concerns about the rapid inception of the parties’ relationship, the lack of evidence of communication between them prior to August 2014 and Ms Bui’s limited knowledge of Mr Pham’s family and the date of his citizenship ceremony. The delegate was not satisfied that Ms Bui and Mr Pham genuinely intended to marry and live together as spouses.

13. Prior to the hearing Mr Pham’s migration agent provided additional information to the Tribunal including, but not limited to, the following: records of electronic communication between the parties, photographs, witness statutory declarations, money transfer receipts and temporary household registration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided by the parties and witnesses at the hearing.

15. Mr Pham and Ms Bui gave generally consistent evidence about the circumstances in which they met, the history of their relationship and their plans for their shared life together. They demonstrated a detailed knowledge of each other’s current circumstances and families. The Tribunal considers the parties to be credible. The Tribunal accepts that Mr Pham and Ms Bui met through Skype in April 2013 and first met in person in Vietnam in December 2013. They formed a committed relationship and held a formal engagement party in Vietnam on 28 December 2014.

16. The Tribunal finds on the evidence that Mr Pham is not prohibited by subclause (2) of cl.300.212 from being a sponsor and is over the age of 18 years. The Tribunal finds that at the time of application Ms Bui was sponsored by Mr Pham. There is no dispute and the Tribunal finds that the parties have met and are known to each other personally. Therefore the requirements of cl.300.212, cl.300.213 and cl.300.214 are met.

    Does Ms Bui intend to marry an eligible person?

17. Clause 300.211 requires that at the time of application Ms Bui intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. Prior to the hearing the parties provided a letter from a marriage celebrant, dated 23 September 2016, which stated that the intended date of their marriage is 28 January 2017.

18. The Tribunal accepts on the basis of the oral evidence provided at the hearing and the electronic communication records before it that the parties communicate with one another regularly by telephone and Skype. Mr Pham and Ms Bui gave oral evidence that they are marrying because they love one another and wish to spend the rest of their lives together. At the hearing the parties presented as being genuinely committed to the relationship.

19. The Tribunal finds that Mr Pham has been transferring money to Ms Bui at regular intervals and that she uses the funds received for general living expenses. While Mr Pham’s parents were in Australia for a 12-month period from September 2015, Ms Bui was the primary carer for Mr Pham’s 16-year-old niece. Some of the funds that Mr Pham sent to Ms Bui during that period were used to meet the living expenses and education costs associated with Mr Pham’s niece.

20. Having considered this evidence, the Tribunal finds that at the time of application Ms Bui intended to marry Mr Pham, who is an Australian citizen. Accordingly, the Tribunal finds that the requirements of cl.300.211 are met.

    Do the parties genuinely intend to marry?

21. 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.

22. Mr Pham gave convincing evidence that the parties intend to marry in Australia. The marriage was originally planned to be held on 26 January 2016, but could not go ahead on that date due to the refusal of the application. They have instead decided to marry on 28 January 2017 and will hold the ceremony at Mr Pham’s Rockhampton home. The parties gave consistent oral evidence about who will attend the event and what they will wear. There was a discrepancy in the evidence about where Mr Pham and Ms Bui plan to spend their honeymoon, but the Tribunal considers that this was due to confusion over their immediate and long-term plans rather than a lack of genuine communication about the matter.

23. The Tribunal finds that at the time of application the parties had a genuine intention to marry and the proposed date for the marriage is within the visa period.

24. Accordingly, the Tribunal finds that the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together?

25. 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.

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.

27. Based on the evidence before it, the Tribunal finds that at the time of application the parties were committed to each other, maintained regular contact and presented to family members and mutual friends as being in a committed relationship. At the time of application Mr Pham had transferred some money to Ms Bui for her personal use. At the time of application the parties had travelled in Vietnam together and spent some time living in their parents’ homes.

28. The Tribunal has carefully considered the evidence regarding Mr Pham’s travel with his ex-wife, Ms Nguyen, on a flight from Singapore to Brisbane on 16 January 2014. The Tribunal notes that Mr Pham and Ms Nguyen travelled separately to Vietnam in December 2013. Ms Nguyen stated in her statutory declaration to the Tribunal that she did not see Mr Pham while she was in Vietnam. Ms Nguyen and Mr Nguyen attended the hearing and gave oral evidence to the Tribunal about the circumstances that resulted in Mr Pham and Ms Nguyen being on the same flight to Australia in January 2014. Mr Nguyen is Mr Pham’s former brother-in-law. Their evidence was consistent with the oral evidence provided by Mr Pham and the Department’s movement records and the Tribunal considers their explanation to be sincere.  Mr Pham, Ms Nguyen and Mr Nguyen told the Tribunal that the joint flight was a coincidence due to Mr Pham and Ms Nguyen working at the same company and having leave during the same close-down period. Mr Pham and Ms Nguyen gave consistent oral evidence that they were unaware that they were on the same flight until they saw one another at Singapore airport. They did not sit together on the plane and their tickets were booked separately. Mr Pham, Mr Nguyen and Ms Nguyen said that they came through customs together and caught a taxi from the international terminal to the domestic terminal. There were five or six in the group and they did this to save money and also because they speak limited English. The group all knew one another from work and felt safer together. They then caught a plane to Rockhampton together, but Mr Pham and Ms Nguyen did not sit together. The flights to Rockhampton were also booked separately. Despite the inherent unlikelihood of such a coincidence, the Tribunal was ultimately satisfied that the explanation provided at the hearing regarding the joint travel in January 2014, which was supported by statutory declarations by witnesses submitted before the hearing, was genuine. In reaching this conclusion the Tribunal notes that there is no other evidence to support that the relationship between Mr Pham and Ms Nguyen continued after their separation in March 2013. The Tribunal has also taken into account the consistency and plausibility of the other evidence before it to the contrary.

29. The Tribunal is mindful that Mr Pham did not subsequently disclose to Ms Bui that he and Ms Nguyen were on the same flight in January 2014, as evidenced by Ms Bui’s responses during the Departmental interview. The Tribunal does not accept that Ms Bui was being untruthful when she told the delegate that she did not see Mr Pham and Ms Nguyen together when she dropped Mr Pham at the airport. While there is unambiguous evidence that Mr Pham and Ms Nguyen caught the same flight from Singapore to Brisbane, it is not clear that they were on the same flight from Vietnam to Singapore. At the hearing Mr Pham explained that it was not an unusual occurrence to be on the same flight as an ex-partner, so he did not mention this to Ms Bui. The Tribunal is not prepared to accept that explanation and considers it a particularly notable coincidence that would be worth mentioning to his fiancé, especially given their evidence of daily communication. Mr Pham also stated that Ms Bui may have reacted with suspicion or jealousy. The Tribunal considers this a much more likely reason for Mr Pham’s failure to disclose that Ms Nguyen was on the same flight as him back to Australia in January 2014. While this indicates a lack of open and honest communication between the parties, given the relationship was relatively new at the time and in the context of the evidence as a whole, the Tribunal does not regard Mr Pham’s decision to conceal from Ms Bui that Ms Nguyen was on the same flight to be critical. As Mr Pham’s migration agent pointed out at the hearing, Mr Pham most likely assumed that Ms Bui would never find out about it.

30. The Tribunal has considered the rapid inception of the parties’ relationship, in particular Mr Pham’s proposal to Ms Bui just nine days after the parties first met in person. Mr Pham and Ms Bui gave inconsistent accounts about whether Ms Bui accepted the proposal immediately, or after she consulted her family, but the Tribunal placed limited weight on this in light of the consistency of the evidence as a whole. Given the parties were communicating on a regular basis between and April 2013 and December 2013 and did not hold an official engagement party until December 2014, they had sufficient time to get to know one another before they officially celebrated the relationship with their families and friends in Vietnam. The photographs of the engagement show a large number of people at the event.

31. A witness statutory declaration was provided to the Department by Mr Pham’s brother-in-law, Mr Joseph Osborne There was a substantial amount of detail in that declaration and Mr Osborne stated that he travelled to Vietnam to attend the parties’ engagement ceremony. He lives with Mr Pham and said he has witnessed the parties’ communication. The Tribunal places weight on that evidence.

32. The parties gave consistent evidence about their future intentions regarding the establishment of a household in Mr Pham’s home in Rockhampton. Mr Pham is currently living with his sister and her family and the parties stated that they intend to find their own accommodation once Ms Bui is settled in Australia. The Tribunal is satisfied that this evidence reflects the parties’ intention at the time of application. The Tribunal finds that at the time of application Mr Pham and Ms Bui had a genuine intention to live together as spouses. The Tribunal therefore finds that Ms Bui meets the requirements of cl.300.216.

    Do the parties continue to meet time of application requirements?

33. Clause 300.221 requires that at the time of decision, Ms Bui continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, that Ms Bui intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses.

34. Mr Pham gave oral evidence that the parties’ parents and siblings attended their engagement ceremony and the relationship has been disclosed to all of their friends and relatives. Mr Pham and Ms Bui were able to demonstrate extensive knowledge about each another’s families at the hearing, including the names and current circumstances of their parents and siblings. Mr Pham was aware that Ms Bui’s father had died in 2015 and the cause of his death. Ms Bui said that she has met all of Mr Pham’s sisters. The parties gave consistent oral evidence that they have stayed together with each other’s families in Vietnam.

35. Mr Pham has visited Ms Bui on three occasions since the parties formed a relationship and they have spent time in Vietnam in the same household. They gave consistent oral evidence that they tried to conceive a child during Mr Pham’s most recent visit as they are concerned about Ms Bui’s advancing age, but Ms Bui did not become pregnant. That evidence impressed the Tribunal as sincere.

36. The Tribunal has placed weight on the consistent evidence that Ms Bui has been living in Mr Pham’s family home since January 2015 and was the primary carer for his 16-year-old niece while Mr Pham’s parents were in Australia for 12 months.

37. After taking into account the oral evidence at the hearing, the parties’ regular contact with one another and the consistency in their evidence about their future plans, the Tribunal is satisfied that at the time of this decision Ms Bui intends to marry Mr Pham who is an Australian citizen, the parties have met and are known to each other personally and the parties genuinely intend to marry. On the basis of the parties’ oral evidence the Tribunal is satisfied that the marriage is intended to take place within the visa period and therefore Ms Bui continues to meet cl.300.215(b) at the time of decision. The Tribunal is also satisfied that the parties genuinely intend to live together as spouses.

38. Accordingly, the Tribunal finds that cl.300.221 is met.

    CONCLUSIONS

39. The Tribunal is in the position of having additional information that was not before the delegate, in particular the oral evidence provided by Mr Pham, Ms Nguyen and Mr Nguyen at the hearing. The Tribunal notes the delegate’s concerns regarding the movement records that show that Mr Pham travelled to Australia in January 2014 with his ex-wife, but as discussed above is satisfied that Mr Pham has been able to explain this. The delegate also noted inconsistencies in the parties’ evidence at the interview and the fact that they had not seen one another for some time. The Tribunal notes from the Certificate of Australian Citizenship provided to the Tribunal that Mr Pham was granted Australian citizenship on 18 February 2016, which was significantly later than the date referred to by the delegate. The Tribunal was also given numerous photographs of the parties together in Vietnam taken over a period of almost three years since the inception of their relationship, including during Mr Pham’s recent trip to spend time with Ms Bui. The Tribunal is mindful of the timing of Mr Pham’s most recent trip, which occurred after he was invited to the hearing, but considers that it reflects Mr Pham’s strong desire for the application to succeed so Ms Bui can join him in Australia rather than a last minute attempt to misrepresent the true nature of the parties’ relationship.

1. 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

2. 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

   Glynis Bartley
   Member