1733080 (Migration)

[2021] AATA 2021

1733080 (Migration) [2021] AATA 2021 (5 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1733080

MEMBER:Hugh Sanderson

DATE:5 May 2021

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 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 05 May 2021 at 8:20am

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuinely intend to live together as spouses – role of carer for the review applicant – review applicant’s medical and mental health conditions – appearance of contrived relationship – guardianship of the review applicant – review applicant’s visits to Vietnam – possible sexual servitude – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 300.211, 300.214, 300.215, 300.216, 300.221; r 1.15

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 22 June 2016. 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.

3. The delegate refused to grant the visa on 12 December 2017 on the basis that the visa applicant did not satisfy cl.300.215, cl.300.216 and cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant genuinely intended to marry or live together as spouses, as defined in s.5F of the Act, with the review applicant.

   Background

4. The review applicant was born in Vietnam and is currently [age] years old. He became an Australian citizen in 1990. He suffers from cerebral palsy and has been diagnosed as having a mild intellectual disability and mental illness. He has been subject to various guardianship orders.

5. The visa applicant is a citizen of Vietnam and is currently [age] years old. Apart from her mother, she declared that she had no other family. She was previously married and divorced her husband in 2013.

6. The review applicant’s brother, [Brother A], provided a statement to the Department where he made the following claims:

   ·The review applicant had been living with his parents, but due to their age and the severity of the review applicant’s condition, they were unable to continue to care for him;

   ·The review applicant has lived in various group homes for people with a disability;

   ·The review applicant’s family were concerned about the level of care he was being given and the cost of that care;

   ·Staff at the group home complained that the review applicant behaved inappropriately with female staff and residents, touching them inappropriately and asking for sex;

   ·It was suggested a sex worker be employed for the review applicant, however, his brother did not think this was appropriate;

   ·It was hoped that the visa applicant could come to Australia and will not only be the review applicant’s partner, but undertake the role of carer of the review applicant in the home of the review applicant’s brother;

   ·The visa applicant grew up in Vietnam without any family apart from her mother who suffers from mental health issues and has lived an underprivileged life;

   ·The review applicant’s brother met the visa applicant in about 2014 and, after saying that she had many debts, the review applicant’s brother offered to pay off those debts and he remained in contact with her after that;

   ·In late 2015 there seem to be an opportunity for the review applicant to live with his brother and so they travelled to Vietnam from 25 February 2016 to 28 March 2016 where the review applicant met the visa applicant;

   ·At the meeting in 2016, it was decided the visa applicant and the review applicant were happy and compatible together and they agreed to proceed with their marriage; and

   ·The review applicant’s brother has promised to support the parties and provide them with free accommodation during the first 10 years and his children would also support them after that.

7. The parties had an engagement ceremony [in] March 2016. Various statements were provided by relatives of the parties stating they believed the relationship was genuine. A letter was provided from [Ms A], managing director and social worker of [Agency 1] stating that she had been told how the review applicant was not enjoying his life at the group home and that the review applicant’s brother would support the parties in Australia.

8. Since their engagement, the review applicant has travelled to Vietnam as follows:

   ·From [February] 2017 to [May] 2017;

   ·From [November] 2017 to [December] 2017;

   ·From [August] 2018 to [November] 2018; and

   ·From [September] 2019 to [November] 2019.

9. On each occasion the review applicant has travelled to and from Vietnam he has always travelled with his brother, [Brother A]. [Brother A] has himself travelled very frequently to Vietnam, having travelled there on 18 occasions since the review applicant became engaged to the visa applicant

10. The Department interviewed the visa applicant. During that interview, the visa applicant made the following comments:

    ·The visa applicant said that [Brother A] had felt pity for her because she had debts and she agreed to do work for him;

    ·[Brother A] told the visa applicant that his brother needed someone to provide care for him and he needed a wife;

    ·The visa applicant said she had no choice because she was poor and did not have any chance to provide money for her mother’s medication and thought the review applicant would be lonely, though she had not met him;

    ·The engagement took place in the home of [Brother A’s] parents which he had renovated;

    ·The visa applicant agreed to get engaged to the review applicant because, although he suffers from autism, he was a kind-hearted person;

    ·The visa applicant planned to get work in Australia that would be organised by [Brother A] and also send the money to her mother in Vietnam that the government pays the review applicant for his support;

    ·When it was put to the visa applicant that [Brother A] appeared to be simply trying to find a carer for his brother, the visa applicant said that she agreed to be matched with the review applicant because she found that he and [Brother A] were kind to her and that as her mother also suffers from autism she knew how to care for the review applicant;

    ·The visa applicant was not able to remember the names of relatives of the review applicant and other people they had met; and

    ·The visa applicant provided details of the review applicant’s medical condition.

11. The delegate who considered the application noted the following:

    ·There was no information as to when the parties intended to marry in Australia and the visa applicant was unable to provide any information as to any planned marriage;

    ·The review applicant has sent money to the visa applicant through his brother, however, there is no other evidence of any financial aspects of the relationship;

    ·When the review applicant has been in Vietnam, he has shared a hotel room or lived in the home of the review applicant’s parents with the visa applicant, although there was little evidence to support this;

    ·Various documents and photos had been provided to show the social aspects of the parties’ relationship;

    ·The purpose of the proposed marriage appears to be so that the visa applicant can come to Australia to care for the review applicant due to his medical issues;

    ·The visa applicant was approached to enter into the arrangement due to the fact that she had little money and no other support;

    ·In response to why she agreed to the arrangement, the visa applicant said “I have no choice. I was too poor. I don’t have any chance to have any more money to help pay for my mother’s medication”;

    ·It appeared from the arrangement being made that the relationship between the visa applicant and review applicant was contrived to bring the visa applicant to Australia to act as the review applicant’s carer; and

    ·An allegation had been received from the Department that the relationship was contrived to allow the visa applicant to come to Australia.

12. Taking these matters into account, the delegate was not satisfied the parties genuinely intend to marry or that they genuinely intend to live together as spouses. The delegate found the visa applicant did not meet the time of application criteria in cl.300.215 and cl.300.216 or the time of decision criteria in cl.300.221. Accordingly, the delegate refused the application.

    Information to the Tribunal

13. Further documents were provided to the Tribunal in support of the application, including the following:

    ·Care plan prepared by the review applicant’s general practitioner;

    ·Photos of the parties together in Vietnam;

    ·Money transfers sent to the visa applicant;

    ·Telephone records;

    ·Copies of correspondence;

    ·Excel spreadsheet of money paid to the visa applicant;

    ·Appointment from the NSW Civil and Administrative Tribunal appointing [Brother A] as the guardian of the review applicant under the Guardianship Act 1987;

    ·Statements by relatives of the review applicant;

    ·Letter from [Ms A], partner with [Agency 1], dated 11 October 2020 stating that although the review applicant suffers from significant disabilities, this does not mean that he does not wish to marry the visa applicant and the review applicant’s support needs are having a significant negative impact on the health of his family;

    ·Report from [Doctor A], senior clinical consultant, dated 11 November 2020; and

    ·Submissions from [Brother A].

14. In the report from [Doctor A], the following was noted:

    ·The review applicant suffers from a wide range of mental health concerns, including PTSD, OCD, schizophrenia, anxiety, depression, and psychosis;

    ·The review applicant is living with his family, however, meeting his support levels is proving unsustainable;

    ·The report was prepared to assess whether the parties had the capacity to understand the meaning of marriage and entering into a relationship voluntarily;

    ·The visa applicant was interviewed using [Brother A] as an interpreter;

    ·The visa applicant said that people get married when they love each other but also for many different reasons, including to make their life better;

    ·The visa applicant believed her past experience in caring for her mother would make her able to care for the review applicant and she would be able to cope with some of the review applicant’s behaviours;

    ·The visa applicant said that she would need a break at times and these could be filled by the review applicant’s family and other support networks;

    ·The visa applicant reported sexual knowledge and understanding of consent issues;

    ·The visa applicant said that she was not thinking of having a child with the review applicant;

    ·The visa applicant said that she was not being coerced into marrying the review applicant;

    ·[Brother A] indicated that he would be monitoring the financial arrangements of the review applicant and would provide other support;

    ·Both the visa applicant and the review applicant understand what it is to be married and what it means to marry each other;

    ·Both the visa applicant and the review applicant have entered the relationship voluntarily and the care needs of the review applicant are not the only reason why the visa applicant is entering the relationship;

    ·While it is not typical in Australian culture for women to marry a person with such high support needs, this is not uncommon in Vietnam; and

    ·Both parties understood the need for consent in any sexual relationship but do not intend to have children.

15. The review applicant appeared before the Tribunal on 3 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s brother, [Brother A], his nephew, [named], two workers from the review applicant’s NDIS provider, and [Ms A] from [Agency 1]. The Tribunal also took evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

16. The review applicant had difficulty giving evidence. He said that he wanted his wife to be given the visa so that they could live together and she could care for him. When asked why the visa applicant would want to come and live in Australia with him, he said that he did not know why she would want to do this.

17. As the visa applicant was not comfortable answering questions and had difficulties in remembering things, the Tribunal took only limited information from him.

18. The review applicant’s brother, [Brother A], gave evidence in support of the application. He said that their father had originally considered finding a wife for the review applicant in about 2000. He said that their father introduced the review applicant to another woman with plans that they get married. He said that an engagement celebration took place in Vietnam. The review applicant’s father asked [Brother A] to help the review applicant sponsor the woman, but [Brother A] was not confident in the claimed relationship and he said the woman then “ran away”.

19. [Brother A] said that he had known the visa applicant for about two years before he raised the issue of her marrying the review applicant with her. He said that he knew of her situation and he believed that she would make a good wife for the review applicant. He said that he and his sister had provided financial support for the visa applicant both in her rent and in her daily expenses.

20. The Tribunal raised the issue of whether the visa applicant genuinely intended to live with the review applicant as his spouse or whether her agreement to the relationship was simply to be able to live in Australia. The Tribunal asked [Brother A] what he would do if the visa applicant simply left the review applicant, possibly claiming that she had suffered family violence committed by him.

21. [Brother A] said he did not believe that the visa applicant would act in that way. He said that he knew that her past behaviour was such that she genuinely cared for the review applicant. He said that the visa applicant had lived with another man who abused her and could not find a way to leave him. He said that she now has the support of the review applicant and all their family and she has shown loyalty and support to the review applicant. He said that he did not believe that they would separate and even if they were together for just five years it would be worth it.

22. [The named] nephew of the review applicant, gave evidence in support of the application. He said that he had only met the visa applicant on two occasions. He said that there were advantages for both the visa applicant and the review applicant in the relationship. He said the visa applicant had led a hard life and would be able to provide care for the review applicant and get the support from his family in Australia. He said he believed the visa applicant genuinely cared for the review applicant.

23. Two workers from the review applicant’s NDIS care providers, [named], gave evidence in support of the application. They said that they provided care for the review applicant including respite care for one or two weeks each time. They said the review applicant sometimes does get angry and occasionally hits out. He continues to act sexually inappropriately with female staff and residents. They said that they had never spoken to the visa applicant.

24. They said that they could not identify other people with the care needs comparable to that of the review applicant who had got married to somebody who would then provide care for them.

25. [Ms A] gave evidence in support of the application. She said that people with disabilities often get married, however, she had noted that it was from culturally diverse people where this happened with the person needing care sponsoring their partner from overseas. She said that for Australian residents she usually saw people with similar disabilities marrying each other.

26. [Ms A] acknowledged that it was a concern that the visa applicant was being forced into the relationship or that she was not entering into the relationship genuinely. She said that it was for this reason that a report from [Doctor A] had been obtained and had specifically addressed that issue. She said that it was impossible for her to say whether the visa applicant was genuine, however, she believed she was.

27. The visa applicant gave evidence by telephone. She said that if she came to Australia she would likely work for three or four days a week but would spend most of her time caring for the review applicant. She provided details of where it was planned they would be living with the support of the review applicant’s family.

28. The visa applicant gave details of the review applicant’s care needs. She said that when she has been with him and he gets angry she tells him to go into a room to calm down and this has always worked. She said that she was not scared of the review applicant because he is usually gentle and kind. She said that she had had a tough life and had dealt with people with mental health issues. She said that she wanted to be able to look after the review applicant. The review applicant said that her mother is elderly and will be cared for by her cousin.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. The issue in the present case is whether the parties genuinely intend to marry and genuinely intend to live together as spouses. The Tribunal has considered further the criteria to satisfy the time of decision criteria in cl.300.221.

    Does the visa applicant intend to marry an eligible person?

31. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

32. The evidence of the parties is that the visa applicant intends to marry the review applicant who is an Australian citizen. Accordingly, the requirements of cl.300.211 are met. This criterion continues to be met at the time of this decision.

    Do the parties genuinely intend to marry?

33. 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.

34. The arrangements for the proposed wedding have been made by the review applicant’s brother. This is due to the review applicant’s intellectual handicap and the fact the visa applicant is living in Vietnam. At the time of the application, an approach had been made to the marriage celebrant to conduct a marriage between the parties soon after the visa applicant arrives in Australia. Evidence has been provided of an approach to a marriage celebrant to be able to conduct the wedding ceremony. The parties have previously held an engagement ceremony in Vietnam.

1. The Tribunal is satisfied the review applicant’s brother will ensure that a wedding takes place between the review applicant and the visa applicant shortly after the visa applicant arrives in Australia.

2. The Tribunal is satisfied that, at the time of application, the parties 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 and continue to be met at the time of this decision.

   Do the parties genuinely intend to live together?

3. 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 a married couple 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). While 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.

4. 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.

5. The circumstances of the relationship between the visa applicant and the review applicant are unusual in light of the mental health issue suffered by the review applicant and the background of the visa applicant and how she came to first meet and agree to marry the review applicant. In particular, the review applicant’s family have been involved in trying to find an appropriate “wife” for the review applicant to provide the assistance in his daily care that he requires as well as providing a person who would be willing to satisfy the review applicant’s sexual needs. This latter requirement is reflected in the report from [Doctor B] dated 19 April 2016 and the behaviour of the review applicant described in that report which continues to be reported by his carers.

6. This raises a concern that the visa applicant is entering a type of sexual servitude, combined with a requirement that she provide continuing care for the review applicant at the instigation of the review applicant’s family. This in turn raises the question as to whether the review applicant was aware of the nature of the relationship he is entering into with the visa applicant and whether the visa applicant does genuinely intend to live with the review applicant as his spouse.

7. Evidence of other aspects of the relationship have been provided. The review applicant’s family have been providing financial support to the visa applicant. Arrangements have been made for the review applicant to travel to Vietnam and spend extended periods of time living with the visa applicant in a home provided by the review applicant’s brother or in hotels. The parties conducted an engagement ceremony in Vietnam declaring their relationship to their friends and family members there. The review applicant and his family spoke openly to his professional carers in Australia of the relationship and those carers have provided statements and evidence in support of the application.

8. The review applicant’s carers obviously recognise that the review applicant marrying a person who would also provide his care would be a significant advantage to the review applicant. [Doctor B] in his report dated 19 April 2016 stated: “having a primary carer who is also (the review applicant’s) wife can greatly improve his overall health as she can attend his doctors’ appointments and provide me/his doctors with much more consistent information regarding (the applicant’s) progress”.

9. [Ms B] of [Agency 2] in an undated letter notes the rights of all persons with disabilities of a marriageable age to marry on the basis of free and full consent of the intended spouses must be recognised. [Ms A] stated that just the fact that the review applicant suffers significant disabilities does not negate his ability to be cognizant of and consent to, as well as actively wish for, being married to the visa applicant.

10. The Tribunal accepts the evidence that the review applicant, after having met the visa applicant and having discussions with his family, wishes to genuinely marry the visa applicant and live with her in a spousal relationship. The two main concerns are whether the visa applicant is being forced into a relationship of possible sexual servitude and whether she wishes to have the visa granted to her to be able to live in Australia with no intention to live in a spousal relationship with the review applicant.

11. [Brother A] gave evidence that his father had previously considered finding a woman to marry the review applicant so that she could care for him. [Brother A] gave evidence that he advised caution in sponsoring any person and the person with whom his father had suggested the review applicant sponsor as his wife “ran away” before any application was made.

12. The history of the relationship between the visa applicant and the review applicant’s brother indicates continued caution from [Brother A] in finding a wife for the review applicant. He knew the visa applicant for about two years before suggesting she marry his brother. The visa applicant’s background as a carer for her mother indicated her capacity to be more understanding of the review applicant’s mental health issues and the care he requires. The parties have spent extended periods together in Vietnam living together to allow the visa applicant to experience the particular behaviours of the review applicant and to develop strategies to control those behaviours.

13. The Tribunal places significant weight on the report from [Doctor A] dated 11 November 2020. As is stated in that report, the visa applicant recognised that people get married for different reasons. There are a number of reasons why the visa applicant considered her relationship with the review applicant is a positive one for her. She had been in a long-term abusive relationship whereas she found the review applicant to be gentle and kind. Certainly, her knowledge of the review applicant’s brother and the assistance that he has provided to her would also play a factor in her desire to enter into a relationship with the review applicant. The advantages of being able to live in Australia compared to Vietnam provides a further incentive for entering into the relationship. The assistance she would continue to receive from the review applicant’s family in Australia, both in providing respite care for the review applicant and emotional and financial assistance for herself, would add to the benefits of living with the review applicant in a spousal relationship in Australia.

14. The report from [Doctor A] indicates that the visa applicant has entered into the relationship voluntarily and wishes to continue the relationship. She is aware of the sexual needs of the review applicant and is understanding of “consent issues”. Although the expectation that the visa applicant will be the carer for the review applicant provides a significant aspect of the relationship, it is not the sole factor for the parties to be married. Mr [Doctor A] reported the companionship that both parties displayed for each other appeared genuine.

15. The Tribunal has considered all the circumstances of the visa applicant and the review applicant both individually and cumulatively. As set out above, there are concerns as to the reasons why the visa applicant is committing to a relationship with the review applicant and whether the marriage is in fact being arranged by the review applicant’s family to provide a carer and sexual partner for the review applicant.

16. After considering all the evidence, the Tribunal has concluded that the parties do genuinely intend to live together as spouses. The Tribunal is satisfied the parties’ relationship is genuine and continuing and they have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied the parties intend to live together in a home in Australia provided by the review applicant’s family. The Tribunal is satisfied that the parties genuinely intended to live together as spouses at the time of the application and continue to do so at the time of this decision.

17. On the basis of the above, the Tribunal is satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl.300.216 is met.

    Do the parties continue to meet time of application requirements?

18. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cls.300.211, 300.214, 300.215 and 300.216. That is, that the visa applicant 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.

19. As set out above, the Tribunal finds that the visa applicant meets the criteria in cls.300.211, 300.214, 300.215 and 300.216 and continues to meet that criteria at the time of the decision. Accordingly, cl.300.221 is met.

20. 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

21. 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 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.

    Hugh Sanderson
    Member