1816859 (Migration)

[2022] AATA 453

1816859 (Migration) [2022] AATA 453 (5 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816859

MEMBER:David Barker

DATE:5 January 2022

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 05 January 2022 at 4:02pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry – genuinely intending to live together – sponsor’s visits to Vietnam – Notice of Intended Marriage – money transfers – short periods of cohabitation – rapid development of the relationship – limited evidence of social recognition – limited communication records – lack of familial support – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 300.212, 300.214, 300.215, 300.216, 300.221, 300.321; r 1.15

CASES

Re MILGEA and Dhillon [1990] FCA 144

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 Home Affairs to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 5 June 2017. 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 (Cth) (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.

3. The delegate refused to grant the visas on 27 April 2018 on the basis that the first named visa applicant (hereafter referred to as the applicant) did not satisfy cl 300.215 or cl 300.216 of Schedule 2 to the Regulations because they were not satisfied the parties had a genuine intention to marry and live together as spouses.

4. The review applicant (hereafter referred to as the sponsor) appeared before the Tribunal on 20 September 2021 by video platform to give evidence and present arguments. The Tribunal is satisfied it was reasonable to hold a hearing through video in the context of the coronavirus pandemic, having regard to the nature of this matter and the individual circumstances of the applicant and sponsor. The Tribunal was mindful of the need to minimise health risks to the parties and Tribunal staff that could arise at the present time in an in-person hearing. The Tribunal received an indication from the applicant that he was comfortable with the hearing proceeding utilising this technology platform. The Tribunal also received oral evidence from the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

6. The applicant is a national of Vietnam and is currently [age] years old. The second named applicant, his daughter, is [age] years old. The applicant first arrived in Australia in November 2007 on a three month Tourist visa. He had a subsequent application for a Visitor visa refused in August 2010. He reports his occupation as ‘[occupation 1]’. The applicant was married from 1988 to December 2013, with the marriage ending by divorce. There was one child from the relationship, the second named visa applicant, who was born in [year].

7. The sponsor was born in Vietnam and is currently [age] years old. She first arrived in Australia in July 1993 on a Subclass 200 Refugee visa and became an Australian citizen by grant in 1998. She reports her occupation as ‘retired’. The sponsor’s first marriage ended when she was widowed in 1980. She married her first spouse in 1975 and there were two children from this relationship. She reports a subsequent de facto relationship, which lasted from 1994 to 1995. There was one child from that relationship.

8. Information provided in association with the visa application indicates that the parties claim they first met in 1990, whilst they were both asylum seekers in a refugee camp in [Country 1]. They claim that in 1993 the sponsor was granted a humanitarian visa permitting her to come to Australia, while the applicant’s family was repatriated in 1995 from the refugee camp back to Vietnam. They claim that the sponsor acquired the applicant’s contact details through a mutual acquaintance some years later and contacted him by telephone in October 2013. They claim their friendship was renewed during further telephone conversations and the exchange of presents through the medium of friends visiting their respective countries.

9. The parties met face to face[1] at the airport in Saigon [in] January 2015 and on the same date made a commitment to a shared life together to the exclusion of all others. The sponsor returned to Australia [in] February 2015. They spent further time together in Vietnam and Cambodia between [dates in] September 2015.

   [1] For the first time since their claimed earlier contact as asylum seekers in [Country 1] in the 1990’s

10. Evidence provided to the Department in association with the visa application includes, but is not limited to:

    ·Documents regarding the identity and marital status of the parties and second named visa applicant

    ·Relationship statement of the applicant dated 19 May 2017

    ·Relationship statement of the sponsor dated 19 May 2017

    ·Form 888 statutory declaration by a supporting witness, [Witness A], dated 15 May 2017

    ·Form 888 statutory declaration by a supporting witness, [Witness B], dated 15 May 2017

    ·Civil marriage celebrant letter, Australian Consulate-General, Ho Chi Minh City, dated [in] May 2017 stating confirmation of marriage arrangements and statement of fees for marriage services pertaining to the applicant and sponsor; listing proposed date of marriage as [a day in] April 2018.

11. The decision record, a copy of which was provided with the review application, makes reference to some documentary evidence provided by the parties which is not contained in the Department file provided to the Tribunal in association with the review. The evidence referred to by the delegate included: temporary household registration at the address of the applicant in Ho Chi Minh City for the period [specified in] September 2015; hotel receipts in the parties’ names and a selection of photographs taken of the parties with each other, with friends and family and on different occasions. The Tribunal accepts this evidence was provided by the parties and has taken it into account when considering different aspects of their relationship. In doing so, the Tribunal has noted evidence provided prior to the hearing appears to include the evidence referred to by the delegate.

12. The decision record indicates that the delegate who considered the application was not satisfied the evidence provided in support of the application demonstrated the parties had a genuine intention to marry and live together as spouses.

13. Evidence provided to the Tribunal prior to the hearing includes, but is not limited to:

    ·Relationship statement of the sponsor dated 16 September 2021

    ·Four envelopes addressed from the applicant to the sponsor dated by postmark in 2017, 2019 and 2020

    ·Invoice from the [named] Guest House, Phnom Penh, dated [for dates in] September 2015

    ·Booking for [a] Hotel, Tinh Ben Tre, dated [in] September 2015

    ·Sponsor travel itinerary dated [in] August 2018 Sydney-Saigon and [in] August 2018 Saigon-Sydney

    ·Application for Confirmation of Temporary Residence for the sponsor staying in Vietnam [between dates in] September 2015

    ·Application for Confirmation of Temporary Residence for the sponsor staying in Vietnam [between dates in] August 2018 [and] September 2018

    ·Records of telephone communication

    ·Evidence of financial remittances from the sponsor to the applicant

    ·Photographs.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

    Does the visa applicant intend to marry an eligible person?

16. 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.

17. The sponsor became an Australian citizen in 1998. The parties provided information, including a letter from [a named] civil marriage celebrant, dated [in] May 2017, stating that he had received a Notice of Intended Marriage to indicate that the parties intended to marry in [a location in] NSW. Accordingly, the requirements of cl 300.211 are met.

    Have the applicants met in person and are they known to each other personally?

18. Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally.

19. The Tribunal has reviewed the available evidence, including photographs of the applicant and sponsor in each other’s company. The Tribunal is satisfied the parties, since each of them turned 18, have met and are known to each other personally.

20. Therefore, at the time of application, the requirements of cl 300.214 were 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. The Tribunal notes that the applicant provided evidence of the parties’ intention to marry in the form of a single status certificate and a letter from an authorised marriage celebrant. The delegate expressed concern that when interviewed by Australian immigration officials, the applicant claimed that the parties had made no plans for a wedding party in Australia and found that the evidence was not sufficient to demonstrate the applicant and sponsor intended to marry within the period a Subclass 300 visa would be valid.

23. The Tribunal accepts that evidence is on the Department file which appears to indicate that at the time of application the parties had an intention to marry and there was not probative evidence to establish that intention was not genuine. Accordingly the Tribunal finds the requirements of cl 300.215(a) are satisfied. The parties contend they will arrange a marriage shortly after the applicant arrives in Australia should a visa be granted, accordingly the Tribunal finds that a 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 parties genuinely intend to live together?

24. 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 reg 1.15A(3) for spousal relationships: reg 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.

25. 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.

    Financial aspects

26. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses.

27. At hearing the parties gave consistent evidence that they are essentially independent financially, with the sponsor receiving an income security payment from Centrelink and the applicant, in normal times, working as [an occupation 1].[2] The parties report that they have no shared assets, are not pooling their financial resources towards major financial commitments, do not have any joint liabilities and do not share their day-to-day household expenses.

    [2][2] The parties indicated the applicant’s income has been impacted for periods of time due to COVID-19 related restrictions.

28. There is evidence of funds remitted by the sponsor to the applicant in the July 2015 to July 2021 period, amounting to the equivalent of approximately $6,850. There is no discussion in the relationship statements provided at the time of application, or in any other document provided in association with the visa or review applications about the purpose of these remittances. When invited at hearing to make submissions in relation to the evidence provided in support of the review and visa application, the sponsor said that she wanted to show that she had sent money to the applicant for the support of his child and for nothing else. The applicant gave evidence at hearing that on occasion the sponsor has sent money to assist with the payment of the secondary applicant’s school fees. There is, however, no third party evidence to support this claim.

29. As the parties have lived in different countries throughout their relationship, the Tribunal sees nothing untoward in the parties not having merged their financial affairs in the manner that many couples do. This is because they have had limited opportunities to do so. The Tribunal accepts that funds have been remitted by the sponsor to the applicant over a six-year period. The Tribunal has placed only limited weight on this factor, as the overall amount is quite modest.

30. After reviewing the available evidence, the Tribunal does not consider it appropriate to give positive weight to this aspect of the parties’ relationship.

    Nature of the household

31. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

32. The applicant and sponsor both have adult children from previous relationships. The applicant claimed that the sponsor has provided some financial support towards his daughter’s tuition fees but the parties have provided no evidence, such as receipts, to support this claim. In any event, the Tribunal is not persuaded the modest funds remitted by the sponsor to the applicant since 2015 are as a result of any joint responsibility for care and support of the second named visa applicant and there is no claim that the parties’ other adult children have not become independent and started their own families.

33. On the basis of oral evidence, which is consistent with Department movement records, the Tribunal accepts that the sponsor travelled to Vietnam on two occasions in 2015 and returned there again in 2018 and 2019. The Tribunal accepts that the evidence of temporary registration and travel records demonstrates the parties cohabited during periods in which the sponsor was in Vietnam during September 2015 and 2018, but does not consider this to show they have at any stage established a shared household in which they have lived with each other. The Tribunal notes that the sponsor’s most recent trip took place in mid-2019. The Tribunal acknowledges the constraint on travel between Australia and Vietnam since the onset of the COVID-19 pandemic in early 2020 and has placed no adverse weight on a lack of cohabitation in that period.

34. The parties have not established a shared household and the context of their shared time together does not, in the Tribunal’s opinion, make consideration of the degree of shared housework arrangements a useful indicator of this aspect of their relationship.

35. After reviewing the available evidence, the Tribunal does not consider it appropriate to give positive weight to this aspect of the parties’ relationship.

    Social aspects

36. The Tribunal has considered the social aspects of the relationship – including whether the parties represent themselves to other people as being in a committed relationship with an intention to marry; 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.

37. The Tribunal has concern that no witness support statements or declarations were provided in association with the review application and that as a consequence, there is no indication the parties have represented themselves to friends as a couple in a committed relationship with an ongoing intention to marry, at any time more recently than May 2017. With respect to two witness support statement declarations in May 2017, from [Witness A] and [Witness B], the Tribunal is not satisfied significant positive weight can be given to this evidence, as it is apparent neither [Witness A] or [Witness B] had the opportunity to observe the parties in each other’s company and their expressed reasons for their views that the parties’ relationship is genuine are unconvincing.

38. There are no declarations or statements from the parties’ relatives providing their views as to the parties’ relationship and when asked at hearing whether she wished the Tribunal to contact the applicant’s daughter to take evidence from her, the sponsor said that she did not.

39. The Tribunal has reviewed the photographs provided in association with the review and accepts they show the applicant and sponsor together and together in the company of other people in a variety of settings. The Tribunal accepts these occasions appear to include celebration of events such as a birthday and possibly an engagement. It is unfortunate that the photographs are not dated or otherwise contextualised and it is not clear who the people in the photographs with the parties are. The sponsor declined to make any comment or submissions at hearing with regard to the photographs.

40. When considered as a whole, the Tribunal has concern with regard to this aspect of the parties’ relationship. There is no credible evidence that members of their immediate or extended families support the parties’ relationship or attest to the parties having a genuine intention to marry. There is no indication of the views of friends or acquaintances from any time more recently than mid-2017 and those provided at that time are not opinions the Tribunal has given significant weight to. Whilst there is photographic evidence of the parties having contact with other people, the Tribunal considers such evidence to be of limited value, as it can be as easily staged as reflecting genuine situations. The limited weight given to the photographic evidence and travel records does not resolve the concerns raised by other factors considered regarding this aspect of the relationship. Accordingly, the Tribunal does not consider it appropriate to give positive weight to this aspect of the parties’ relationship.

    Nature of the commitment

1. The Tribunal has considered the nature of the persons’ commitment to each other – including 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.

2. Whilst the development of a couple’s relationship is not a factor specified in reg 1.15A(3), the Tribunal is satisfied it is a relevant aspect to consider when determining the parties’ aspirations and their commitment to the relationship. The parties claim they first met in 1990, at a time when they were both asylum seekers in [Country 1], but that they lost contact when the sponsor came to Australia in 1993. The Tribunal accepts the claim that both the applicant and sponsor were asylum seekers in [Country 1], given the sponsor’s migration to Australia from that location on a humanitarian visa and the evidence attesting to the applicant’s return to Vietnam in May 1995.

3. It is claimed they started communicating by phone in October 2013, after the sponsor asked a mutual acquaintance to provide her with the applicant’s phone number. There is discussion in the delegate’s decision of the lack of evidence to support the parties’ claim that they communicated with each other from October 2013. The delegate noted that the applicant provided inconsistent evidence with regard to this factor, in that during an interview with Immigration officials on 13 January 2018 the applicant claimed that he did have evidence that he could produce, but in a further interview on 13 March 2018 withdrew this claim and confirmed that he had no such evidence.

4. It is of some concern to the Tribunal that, despite having been put on notice by the delegate’s findings with respect to this issue and having representation in relation to the review application, the parties have not produced credible evidence to support their claim that they had interacted prior to their face to face meeting with each other in Vietnam [in] January 2015.

5. At hearing the parties claimed that they had not kept evidence of their contact prior to January 2015 because they were not officially in a relationship during that earlier period. This claim is consistent with the applicant’s concession when interviewed on 13 March 2018 that no evidence of their contact existed prior to January 2015. A concern the Tribunal has with regard to this explanation is that it infers the reason to document their relationship history is for the purpose of supporting the visa application, rather than, as many couples do, to have records and documentation regarding pleasant memories and significant life events.

6. The parties claim that they made a commitment to a shared life together to the exclusion of all others on the day the sponsor arrived in Vietnam, [in] January 2015.[3] The sponsor was in Vietnam for around four weeks at that time and held an engagement celebration during a further two week trip the sponsor made to Vietnam in September 2015. They had no direct contact with each other for approximately three years following their engagement and, accepting at face value they spent all periods the sponsor has been in Vietnam during the two trips there in 2015 and further trips in 2018 and 2019 together, in total have potentially spent 12 weeks in each other’s company since January 2015.

   [3] Form 40SP Sponsorship for a partner to migrate to Australia.

7. At hearing the parties explained their decision to agree to marry after only brief direct contact with each other by contending they had communicated regularly prior to the sponsor going to Vietnam in January 2015 and from that time until the sponsor returned for their engagement celebration. In relation to the communication records which the parties have provided, the Tribunal has placed only limited weight on them. This is because, while copies of what appear to be Viber and other electronic communication records have been provided, they mostly just record call times and others, which have more detail, are untranslated. Whilst some of what appear to be Viber records are dated from February 2015, as they are not translated it is not apparent who was communicating with who in these records and the Tribunal has placed no weight on them. Further communication records from 4 June 2021 to 5 September 2021 are also untranslated and, as with the earlier records, either only record call times and give no indication of the content of the communication, or are mostly untranslated text messages. This evidence includes what appear to be selfies taken by the applicant and sponsor and on this basis the Tribunal accepts the 2021 records reflect some communication between the parties over approximately a three-month period in 2021. The Tribunal notes however that these records cover a three-month period following the Tribunal writing to the sponsor in an outreach initiative, requesting information about the status of the parties’ relationship and as to whether they had progressed to marriage. The Tribunal has concern that the communication records were as a consequence produced in response to this communication from the Tribunal highlighting the review may proceed to hearing in the near future. The Tribunal has accordingly placed no weight on this more recent evidence as an indicator of companionship and support in the parties’ relationship but does accept they communicated prior to the hearing.

8. The Tribunal accepts the delegate’s record that communication covering the period from November 2015 to January 2017 was provided with the visa application. However, the Tribunal also accepts the frequency and duration of interactions in those earlier records was as intermittent as reported by the delegate. There is no credible evidence of the parties communicating by phone or electronic means from January 2017 to sometime shortly before the hearing in 2021. A period well over four years. Taking at face value the evidence of some contact between them, during the sponsor’s trips to Vietnam in 2018 and 2019, in the view of the Tribunal there is limited credible evidence of the degree of communication between a couple in a committed relationship with an intention to marry and share their future lives together. In the view of the tribunal, this is particularly the case in the context of the current COVID-19 pandemic. Whilst the Tribunal accepts this has, since early 2020, constrained direct contact between the parties due to restrictions on international travel, it has been a time in which one would expect a reasonable degree of communication between a couple separated by physical distance in countries which have both at times struggled to contain the pandemic.

9. At hearing the parties were able to provide a reasonable summary of each other’s circumstances and the Tribunal has given some weight to this factor. The applicant made reference to some health issues affecting the sponsor and she made reference to some disruption to the applicant’s employment and as to the circumstances of the second named visa applicant.

10. With respect to the duration of the relationship, the Tribunal is not satisfied the evidence of the parties entering into a committed relationship on the date of their first direct contact in January 2015 is convincing. The Tribunal has therefore measured the duration of the relationship from their engagement in September 2015, which would provide a duration of over six years. The Tribunal has given positive weight to this factor. They have not, however, spent more than 12 weeks in each other’s actual company during this time and have not at any stage established a household together. Accordingly the Tribunal gives no weight to this factor as an indicator that they are in a committed relationship. The Tribunal is not satisfied the parties have demonstrated through credible evidence that there is a significant degree of emotional support and companionship in their relationship. In forming this view the Tribunal has taken into account the paucity of reliable evidence about the parties’ communication with each other over the majority of the period in which they have claimed to be in a committed relationship.

11. The Tribunal is not satisfied the parties are sincere in their wish to marry and establish a household together in Australia. The Tribunal is not satisfied that the parties consider their relationship as long‑term.

    Assessment of intention to live as spouses

12. The Tribunal is aware of the principles established by the Family Court of Australia In the Marriage of Pavey (1976) 10 ALR 259 whereby ‘what comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage’. The Tribunal considers the principles established in Pavey are broadly consistent with the matters outlined in the Act as appropriate considerations to be undertaken, in relation to the current visa class, when making a determination about the genuineness of a relationship, or the related issue of whether there is a genuine intention to live together as spouses. The Tribunal agrees with the principle that a wide range of factors need to be considered in any given case, taking into account the degree to which these factors may be applied to determine a future intention.

13. The delegate expressed concern that the extent to which the applicant has relatives residing in Australia provided him with a strong incentive to seek a migration pathway here. The Tribunal shares this concern, but does not see this as inherently problematic if the parties were in an ongoing committed relationship and that they have a genuine intention to live together as spouses. With regard to this finding, the Tribunal is guided by the principles discussed in Re MILGEA and Dhillon [1990] FCA 144, where the Federal Court stated:

    people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as ‘community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.

14. The Tribunal is not satisfied the evidence that is before it supports a finding that the applicant and sponsor have a mutual commitment to a shared life as spouses. As discussed in this decision, consideration of the financial and social aspects of the parties’ relationship, and of the nature of their household arrangements provide no credible indication that they are in a genuine relationship. In the view of the Tribunal this is so even when due consideration is given to their not residing in the same country and the impact this has on consideration of the factors outlined in reg 1.15A. The lack of credible evidence of familial support for the relationship and the rapid development of the relationship and the limited time the parties have spent in each other’s company are of particular concern to the tribunal. In conjunction with the other factors discussed in the decision the concerns held by the Tribunal outweigh the positive weight given to the duration of the relationship and the limited weight given to the photographic evidence, awareness of each other’s circumstances and evidence of funds remitted to the applicant.

15. In summary and having regard to the considerations set out in reg 1.15A(3) for spousal relationships, the Tribunal considers there is insufficient evidence to demonstrate that the applicant and sponsor have a genuine intention to live together as spouses. The applicant therefore does not meet cl 300.216 and cl 300.221.

16. As the Tribunal does not accept that the applicant satisfies the primary criteria, the second named visa applicant is unable to meet cl 300.321 because they are not members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl 300.221.

17. For the reasons above, the Tribunal finds the visa applicants do not satisfy the criteria for the grant of the visas.

    DECISION

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

    David Barker
    Member