D'Jordan (Migration)

[2023] AATA 234

D'Jordan (Migration) [2023] AATA 234 (12 January 2023)

Corrigendum

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Todd Cameron D'Jordan

VISA APPLICANT:  Ms Thi Huong Phan

REPRESENTATIVE:  Mr Han Khew (MARN: 0101402)

CASE NUMBER:  2013079

HOME AFFAIRS REFERENCE(S):          BCC2019/4314009

MEMBER:Maxina Martellotta

DATE OF DECISION:  12 January 2023

DATE CORRIGENDUM

SIGNED:17 January 2023

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision:

The reference to the primary review applicant as a ‘New Zealand citizen’ is to be amended to an ‘Australian citizen’ in paragraph 29 of the decision record.

Maxina Martellotta
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Todd Cameron D'Jordan

VISA APPLICANT:  Ms Thi Huong Phan

REPRESENTATIVE:  Mr Han Khew (MARN: 0101402)

CASE NUMBER:  2013079

HOME AFFAIRS REFERENCE(S):          BCC2019/4314009

MEMBER:Maxina Martellotta

DATE:12 January 2023

PLACE OF DECISION:  Perth

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 at the time of application (cl 300.21) and time of decision (cl 300.22):

·cl. 300.211; cl. 300.212A; cl. 300.214; cl 300.215 and cl 300.216 of Schedule 2 to the Regulations.

Statement made on 12 January 2023 at 9:50am

CATCHWORDS
MIGRATION –Prospective Marriage (Temporary) (Class TO) visa – subclass 300– the parties had a genuine intention to marry – parties genuinely intended to live together as spouses – parties continue to meet time of application requirements – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 300.211, 300.212, 300.214, 300.215, 300.216

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 applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 28 August 2019. 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. Relevant to this matter the primary criteria include that at the time of application (300.21) and at the time of decision (300.22) the applicant satisfy clauses 300.14 to 300.16.

3. The delegate refused to grant the visa on 7 August 2020 on the basis that the visa applicant did not satisfy cl 300.21 and cl 300.22 of Schedule 2 to the Regulations because at the time of application and time of decision the visa applicant did not establish that the parties genuinely intend to live together as spouses (300.216).

4. The review applicant appeared before the Tribunal on 10 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the review applicant’s mother Mrs D’Jordan and the visa applicant’s sister Ms Phan. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Other evidence before the Tribunal included documents provided in support of the visa application in the Department file and documents provided by the review applicant to the Tribunal.

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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. Those criteria require that, at the time the visa application was made, the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; the parties have met and are known to each other personally; the parties genuinely intend to marry and intend to do so during the visa period; and the parties genuinely intend to live together as spouses. Accordingly, in order to determine whether the visa applicant continues to meet those requirements, it is first necessary to consider whether they were met at the time of the visa application.

   Does the visa applicant intend to marry an eligible person?

8. 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.

9. Documents provided in support of the visa application to the Department confirms that the review applicant is an Australian citizen born in August 1976. The requirements of cl 300.211 are met.

10. The Tribunal is also satisfied that the visa applicant intends to marry the review applicant. In reaching this conclusion the Tribunal has considered the declaration made by the visa applicant in her visa application and the oral evidence presented at hearing.

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

11. 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.

12. The review applicant is 46 years of age. The visa applicant was born in June 1988 and is 34 years old.

13. In oral evidence presented at hearing the review applicant and visa applicant confirmed, and the Tribunal finds that:

    a)They were introduced through the family priest in September 2018 and were initially introduced via a video chat.

    b)They physically met each other on 13 October 2018 at Ho Chi Minh and spent time in each other’s company whilst the review applicant was visiting Vietnam with his parents.

    c)After the review applicant returned to Australia, he and the visa applicant continued to communicate through social media platforms.

    d)The review applicant travelled to Kuala Lumpur with his family and met the visa applicant there. They travelled and spent time together between 30 December 2018 to 7 January 2019.

    e)The review applicant and visa applicant decided to become engaged.  On 5 May 2019 they had an engagement event in Vietnam which was celebrated with friends and family.

    f)The visa applicant spent six weeks with the review applicant in Australia from December 2019 to January 2020.

14. The oral evidence provided at hearing is supported by documents and statements provided by third parties which were provided to the Tribunal by the review applicant. The Tribunal is satisfied that the review applicant and visa applicant have met in person since each of them turned 18 and are known to each other personally. Therefore, at the time of application, the requirements of cl 300.214 were met.

    Do the parties genuinely intend to marry?

15. 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.  The review applicant and visa applicant provided oral evidence at the hearing that following their engagement they made plans to marry in Australia.

16. They participated in an engagement party held in Vietnam in May 2019. The event was attended by family and friends of both the visa applicant and review applicant.

17. The visa applicant had been granted a multiple entry visitor visa in December 2019 with the intention that she would travel to Australia on a regular basis throughout 2020 and advance their marriage plans. 

18. Their initial plans were disrupted by the COVID-19 pandemic which restricted the visa applicant from returning to Australia after her initial visit. She was subsequently unable to make full use of the visa due to pandemic travel restrictions and the wedding plans were postponed.  The visa applicant’s visa lapsed.  When borders re-opened the visa applicant re-applied for a visitor visa but it was refused. The visa applicant had obtained an initial intent to marriage certificate for a ceremony in February 2020 but due to the visa applicant being unable to return to Australia the date was rescheduled on several occasions.

19. The current intention is that if the visa is granted the visa applicant and review applicant will schedule their marriage to take place in 2023 as soon as they are able to do so.

20. The oral evidence provided at hearing is supported by documents provided to the Department and to the Tribunal by the review applicant and visa applicant. This included an intent to marry certificate issued by the Department of Justice, Registry of Births, Deaths and Marriages, photographs of the visa applicant in her wedding dress purchased for the ceremony, preliminary inquiries made for a venue for the wedding lunch as well as statements provided by family members confirming these plans and intention.

21. The Tribunal finds that the review applicant and visa applicant were engaged in May 2019 and have made plans to marry in 2020 which were disrupted by travel restrictions imposed because of the COVID-19 pandemic.  They have made other plans confirming their intention to marry in Australia, should the visa be granted. Taking this evidence as whole it supports the Tribunal’s conclusion that as of the date of application the parties had formed a genuine intention to marry as evidence by their actions both prior and after the date of the visa application.

22. At the time of application, the parties had a genuine intention to marry and satisfy the requirements of cl 300.215(a).  The Tribunal is also satisfied that the marriage is intended to take place 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 as spouses?

23. 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.

24. The review applicant and visa applicant provided the following evidence regarding their intention to live together as spouses:

    a)The review applicant’s parents have built a fully self-contained two-bedroom micro home at the rear of their property. This is where the review applicant and visa applicant intend to live after their marriage.  This property was built after the visa applicant’s holiday to Perth in December 2019 when she stayed with the review applicant in what was previously a one-bedroom granny flat.   

    b)The review applicant states that in terms of the household the intention is that he will likely do most of the cleaning and washing and the visa applicant will do most of the cooking. This is because she is a better cook, and he enjoys Vietnamese food. The review applicant states he has been learning to cook and hopes to teach some Indian cooking to his wife when they live together as spouses. The visa applicant told the Tribunal that they will share the household tasks.

    c)Neither the review applicant nor the visa applicant have any debts.  The intention is that the review applicant will look for employment and they will pool financial resources. The visa applicant has qualifications as a Kindergarten teacher and hopes to find work in her field, until then the visa applicant has siblings who live in Perth and will be able to assist her to find work through their networks.

    d)The review applicant has been providing the visa applicant with regular financial support. He has also paid for the costs associated with their holiday in Malaysia and when she was visiting him in Australia. He works part time as a store security officer and also receives a part pension.

    e)Their intention once married is to open a joint bank account and to jointly meet any day-to-day household expenses once the visa applicant finds employment. As the visa applicant’s family covered the cost of the engagement, the review applicant and his family intend to cover the cost of the wedding. They have a joint plan to build a secure financial future through building their joint savings.

    f)The review applicant and visa applicant are known to each other family and friends both in Vietnam and in Australia. They intent to continue to build on their existing family networks which includes members of the visa applicant’s family who live in Perth.  The review applicant and visa applicant families are both Catholic and this has been and will continue to be a strong commonality in their relationship.

    g)The review applicant and visa applicant have known each other since first speaking online in September 2018. Since meeting in October 2019, they have maintained a strong commitment to each other and to their future relationship which they see as including, their marriage and building a long-term life together.

    h)The review applicant spoke about his strong feelings for the visa applicant and that he loves her because she does not try to change him and accepts him for who he is. The visa applicant spoke about the qualities she admired in the review applicant which included his gentle and kind nature.

25. The review applicant provided a large number of materials to the Tribunal in support of the oral evidence presented at hearing. This included photographs, extracts of text messages and regular contacts. Copies of airline bookings and insurance.  Statements made by third parties confirming the relationship and the stated intention of the parties to marry and to live together as spouses once married.

26. The review applicant’s mother and visa applicant’s sister both gave oral evidence confirming their knowledge of the review applicant and visa applicant’s future plans to live together once they are married.  Both of these witnesses spoke about the genuineness of the relationship evidenced also by the fact that it has endured periods of separation. The review applicant’s mother spoke about how her son is in daily contact with the visa applicant.

27. 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.

    a)The review applicant and visa applicant first met by video and later in person in 2018.

    b)Since then, they have maintained regular contact  through social media and holiday visits. They holidayed together in Malaysia in December 2018, the review applicant visited Vietnam in May 2019 and the visa applicant visited Australia in December 2019.

    c)They were engaged in May 2019. Their plans to marry were interrupted by the COVID-19 pandemic and the resulting travel restrictions.

    d)Their intention once they marry will be to live together in a property located at the rear of the review applicant’s parents’ home.

    e)They intend to both work and each contribute to the household expenses and to potentially purchase a home together.

    f)They intend to operate as a household each undertaking household tasks.

    g)Their future plans include securing their financial future through joint savings, spending time with each other and each other’s family and friends.  Enjoying their life together.

28. In this matter the Tribunal has considered evidence of the parties’ intentions which included consideration of evidence regarding financial and social aspects of the relationship, nature of the household and the parties’ commitment.  In this regard the Tribunal also considered relevant evidence of events that has occurred after the date of application. Such evidence is relevant if it tends logically to show the existence or non-existence of factors relevant to be determined.[1] 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.

    [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Pochi (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

    Do the parties continue to meet time of application requirements?

29. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl 300.211, 300.214, 300.215 and 300.216.  In this matter, the Tribunal is satisfied given its findings of fact and for the reasons outlined above, that the review applicant continues to satisfy 300.211, 300.214, 300.215, and 300.216 at time of decision.  In reaching this conclusion the Tribunal is satisfied that as of the date of decision, the review applicant is an eligible New Zealand citizen, that the visa applicant intends to marry. The review applicant and visa applicant have met in person since each of them turned 18 and are known to each other personally. The parties had a genuine intention to marry and the proposed date for the marriage is within the visa period. The parties genuinely intended to live together as spouses, Accordingly, cl 300.221 is met.

30. 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.

31. 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 at the time of application (cl 300.21) and time of decision (cl 300.22), cl. 300.211; cl. 300.212A; cl. 300.214; cl 300.215 and cl 300.216 of Schedule 2 to the Regulations.

    Maxina Martellotta
    Member