Ho (Migration)

[2018] AATA 4912

Ho (Migration) [2018] AATA 4912 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hien Thi Ho

VISA APPLICANTS:  Mr Thanh Duong Nguyen  Master Quoc Vinh Nguyen

CASE NUMBER:  1615339

DIBP REFERENCE(S):  OSF2015/071235

MEMBER:Justine Clarke

DATE OF ORAL DECISION:  18 October 2018

DATE OF WRITTEN STATEMENT:         22 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 22 October 2018 at 11:11am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary)(Class TO) – Subclass 300 (Prospective Marriage) – genuine relationship – long distance relationship – represent themselves as engaged to family and friends –trips together – parties’ consistent oral evidence – good knowledge of each other – shared plan – parties intend to marry during the visa period – decision under review remitted for reconsideration

LEGISLATION
Marriage Act 1961 (Cth) ss 5F, 65, 359
Migration Regulations 1994 (Cth) r 1.15A Schedule 2 cls 300.211, 300.214, 300.215, 300.216, 300.221

CASES
Jayasinghe v MIMA [2006] FCA 1700

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. At the time of this decision, the first-named visa applicant, Mr Thanh Duong Nguyen (hereafter ‘the visa applicant’), is a 42 year old national of Vietnam.   

3. On 30 October 2015, the visa applicant applied for the visa on the basis of his prospective marriage to his sponsor, the review applicant, Ms Hien Thi Ho, who is, at the time of this decision, a 33 year old Australian citizen. Master Quoc Vinh Nguyen, the visa applicant’s 13 year old son, was included as a secondary visa applicant.

4. At the time the visa applications were 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 cl.300.216 and cl.300.221.

5. On 13 September 2016, the delegate refused to grant the visas because the delegate was not satisfied that the visa applicant and the review applicant genuinely intended to live together as spouses. The delegate noted a number of concerns, including a lack of evidence of any contact between the parties prior to 19 December 2014 or time spent together prior to June 2016. The delegate was not satisfied that the parties met in 2014 or had any contact prior to 19 December 2014 as claimed and consequently held a significant concern over the rapidity of the relationship’s development. Accordingly, the delegate found that the visa applicant did not satisfy clauses 300.216 or 300.221 of Schedule 2 to the Regulations.

6. On 21 September 2016, the review applicant applied to the Tribunal for review. The review applicant was represented in relation to the review by her registered migration agent. The application form for review did not include the secondary visa applicant as a visa applicant.

7. On 27 August 2018, the Tribunal informed the review applicant that the secondary visa applicant had not been included in the review application. After the conversation, the representative wrote to the Tribunal requesting that the secondary visa applicant be added to the review as he should have been added earlier.

8. The Tribunal considered the submission and the evidence before it, including the fact that the review applicant submitted the primary decision with the review application, which lists both visa applicants. It can be implied that the secondary visa applicant was intended to be included in the review application. Accordingly, the secondary visa applicant was added to the review.   

9. On 18 October 2018, the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Vietnam and from Ms Hang Nguyen (the parties’ mutual friend who introduced them) in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative also attended the hearing.

10. At the conclusion of the hearing, the Tribunal gave its decision on the review. The following are the reasons for that decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issues in this case are whether:

    ·at the time of application, the visa applicant and the sponsor genuinely intended to live together as spouses—cl.300.216; and

    ·at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211 (that is, intention to marry an eligible person), cl.300.214 (that is, that the parties are known to each other personally); cl.300.215 (that is, that the parties genuinely intend to marry each other within the visa period) and 300.216 (outlined above)—cl.300.221.

    Evidence submitted

13. On 27 August 2018, the Tribunal wrote to the review applicant, by way of her registered migration agent, pursuant to s.359(2) of the Act, inviting her to provide further information to support her claims that she and her partner genuinely intend to marry and live together as spouses and that they are known to each other personally.

14. The letter included an information sheet, entitled ‘Information about your relationship which may be considered by us’, which outlined intentions with regard to the factors in r.1.15A(3) (which provides a range of factors for decision-makers to consider when determining whether a spousal relationship exists). The information sheet included factors to consider with respect to intended financial aspects of the relationship when the parties are married, the intended nature of the household after the marriage, the intended social aspects of the marriage and the nature of the parties’ commitment to each other.

15. On 10 September 2018, the last day permitted for responding, the representative provided records of money transfers from the review applicant to the visa applicant and photographic evidence to the Tribunal.

16. The Tribunal notes that, at the hearing, the review applicant also filed a number of documents pertaining to her brother’s medical conditions to corroborate her claim about why her parents did not travel to Vietnam for her engagement party. Telephone records were also provided.

    Do the parties genuinely intend to live together?

17. 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).

18. 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.

19. The Tribunal is also mindful that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J, cited by Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at [35].

20. 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.

    The financial aspects of the relationship

21. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of a spousal  relationship.

22. The Tribunal accepts that the parties’ circumstances—living in different countries and being engaged rather than married—have been such that they have had little need or opportunity to pool their finances and arrange joint ownership of assets.

23. Notwithstanding, when asked, both parties gave consistent oral evidence that when the review applicant had been visiting the visa applicant in Vietnam that they had taken a flexible approach to paying for their daily expenses and had both paid for expenses as needed and not according to a strict 50/50 arrangement. Each of them said words to the effect that they did not take note of whether one person paid more than the other because they did not take a ‘mine’ and ‘yours’ approach to their finances.

24. The Tribunal notes the evidence of a number of money transfers from the review applicant to the visa applicant (two dates in 2016; two dates in 2017 and six dates in 2018; varying in amount from $200 to $500). The Tribunal asked both parties why the review applicant had made these transfers. The review applicant told the Tribunal that the visa applicant was in full time employment so was able to provide for him and his son financially. Both parties gave consistent oral evidence that the payments had been made in order to encourage the secondary visa applicant with his studies, particularly his English classes. The review applicant explained that she wanted to encourage the secondary visa applicant to learn as much English as he could while he was in Vietnam because it would make the transition to school and life in Australia much easier for him. The visa applicant also said that some amounts were for gifts such as for the secondary applicant’s birthday.

25. Both parties gave consistent oral evidence that they intended to buy a house together in Australia and that, if the visas are granted and the visa applicant and his son move to Australia, they will live in the review applicant’s family home until such time that they have saved sufficient money to purchase a house of their own. The review applicant speculated that it may take them 1–2 years to save for their own home.

26. The Tribunal accepts the parties’ oral evidence pertaining to the financial aspects of their relationship, both up to the date of this decision and relating to their future intentions. 

27. The Tribunal places weight on the evidence of this factor.

    The nature of the household

28. The persons’ living arrangements, any sharing of the responsibility for housework and any joint responsibility for the care and support of children are relevant considerations when assessing the nature of the household for the purpose of establishing whether parties are in a spousal relationship. As explained earlier, in the present case, it is the parties’ future intentions with regard to these aspects which are relevant.

29. The review applicant told the Tribunal that, on the three trips when she visited the visa applicant in Vietnam (that is, subsequent to the first trip when she met him), she and her son slept in a hotel very close to the visa applicant’s home and that the visa applicant came to stay with them. She said that she had not stayed at the visa applicant’s home because it is a very small two bedroom house with a number of other people living there and because it does not have amenities that she likes such as a microwave and air-conditioning. The visa applicant said that they had stayed in a hotel because they had needed a clean place with no mosquitoes so that the review applicant’s son would be happy.

30. The Tribunal asked the review applicant about the documentary evidence which contradicted her claim that she had stayed in a hotel, namely the temporary household registration which is mentioned in the primary decision. She explained that they had been required to give an address other than the hotel address in case the authorities had needed to contact them and that that is why she had obtained the temporary household registration for the visa applicant’s uncle’s property.

31. When asked who had cooked the meals during the review applicant’s trips to visit the visa applicant, both parties gave consistent oral evidence that they had mainly eaten out or taken bought food home to eat. The review applicant noted that she loved Vietnamese street food and that it is very cheap to eat out in Vietnam.

32. Notwithstanding a lack of corroborating evidence, the Tribunal accepts the parties’ consistent oral evidence that they lived together in a hotel during the review applicant’s trips to Vietnam in 2015, 2016 and 2017.

33. The Tribunal asked both parties questions about their intentions with respect to their future living arrangements and the responsibility for housework. As noted earlier, both parties gave consistent oral evidence that, if the visa applicants are granted the visas and permitted to come to Australia, they will live together in the review applicant’s family home until such time that the review applicant and the visa applicant can purchase their own home.

34. With respect to any intended sharing of the responsibility for housework, both parties said that they would do housework. The review applicant said that she had already warned the visa applicant that the houses in Australia are much larger than in Vietnam and have lawns that require mowing. The Tribunal accepts the parties’ oral evidence about their mutual intention to share housework when they live together in Australia.

35. Both parties also gave consistent oral evidence as to their future intentions with respect to joint responsibility for the care and support of the review applicant’s son and the secondary visa applicant. The Tribunal notes that the review applicant gave detailed oral evidence about the role the visa applicant has already played in supporting and caring for her son. She explained that the visa applicant was the one who had managed to toilet-train her son and that he has fed him and showered him as well. She said that she envisaged the visa applicant playing a ‘hands on role’ in providing care and support for her son when they live together. She also displayed detailed knowledge of the secondary visa applicant, remarking that he was a good child who listened and respected older people and who shared her love of Vietnamese street food and bubble tea. She said that both she and the visa applicant were willing to do whatever was needed to care and support the two boys. The visa applicant spoke of the review applicant’s caring nature and he said that when he and review applicant live together in the future that they will each care for both boys.   

36. The Tribunal gives weight to the evidence of the parties’ intentions about the nature of their future household.

    The social aspects of the relationship

37. The opinion of the persons’ friends and acquaintances about the nature of the relationship is a relevant factor to consider. The witness Ms Nguyen told the Tribunal that she is friends with both the review applicant and the visa applicant. When asked, she denied being a relative of the visa applicant or having known Ms Le Khanh Van, the visa applicant’s ex-wife’s sister, who lives in Australia. She said that she was of the opinion that the relationship is a genuine relationship. She noted that each person was bringing lessons learned from their past failed relationship and said that they would respect each other. She said that she was of the opinion that the parties would marry and live together as spouses and when asked, she said that she did not think that the visa applicant’s primary purpose was for him and his son to migrate to Australia. She said that she did not think that it would be easy for someone, such as the visa applicant, to take advantage of the review applicant. She said that the review applicant is a party to the relationship and that she would know if the visa applicant’s intentions were not sincere. She said that she had also married a Vietnamese man and that while people may have speculated that that was not a genuine marriage, it was and she said that she and her husband had gone on to have two more children together. She said that she was of the opinion that the review applicant and the visa applicant were in love and that they would have a genuine marriage and she thought it was unfair for other people’s opinions of the relationship to prevent them from being together. Having had the opportunity of hearing and testing Ms Nguyen’s evidence in person, the Tribunal accepts it and gives weight to it.

38. The Tribunal notes that the delegate expressed a number of concerns about the parties’ engagement party in Vietnam. The written submissions of 10 October 2018 sought to address these concerns. At the hearing, the review applicant also gave evidence consistent with the submissions that her parents had not been able to attend the engagement celebrations because it was short notice and they provide daily care for her brother. She also gave oral evidence that not everyone who had attended the engagement celebrations had been photographed. Having had the benefit of hearing the review applicant’s oral evidence in person and reviewing the medical evidence that was submitted, the Tribunal accepts the review applicant’s evidence and does not share the delegate’s concerns in this regard.

39. Both the review applicant and the visa applicant gave consistent oral evidence that the review applicant had introduced the visa applicant to her mother and a younger sister by phone/an app and that he speaks to them. The visa applicant also said that he had met the review applicant’s older sister in person when she had visited Vietnam, at which point the review applicant interrupted to tell the Tribunal that she had forgotten to tell the Tribunal that information. The Tribunal accepts the evidence.

40. On the basis of the evidence before it, the Tribunal finds that the parties have represented themselves as engaged to each other to various members of their families and to other friends.       

41. The Tribunal asked both the review applicant and the visa applicant about whether they had undertaken any joint social activities when the review applicant had visited the visa applicant in Vietnam. They both gave oral evidence that they had and the Tribunal notes that the review applicant’s oral evidence was particularly detailed. The Tribunal notes that there is also photographic evidence of the parties socialising together in a number of different places and with different people. The Tribunal gives weight to the evidence before it.

42. The Tribunal gives weight to the evidence of the social aspects of the relationship.

    The nature of the person’s commitment to each other

43. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other for the purposes of a spousal relationship.

1. The Tribunal questioned both parties about the inception of their relationship, noting that the delegate had expressed concerns about the rapidity of the relationship development. The Tribunal also questioned them about the visa applicant’s relationship with his former wife. The visa applicant told the Tribunal that he and his former wife had been separated prior to the divorce. The Tribunal accepts the visa applicant’s oral evidence that he is in limited contact with his former wife due to them having two sons together and finds that he is not in a relationship with his former wife.

2. The Tribunal notes that the relationship has endured—despite the parties living in different countries and spending much time apart—for around four years. As noted earlier, the Tribunal has found that the parties lived together when the review applicant visited the visa applicant in Vietnam on a number of occasions. While the length of time that they have lived together is quite short compared to the duration of the relationship, the Tribunal does not consider that it necessarily weighs against a positive finding about the nature of their commitment.

3. The Tribunal also questioned the parties about the degree of emotional support and companionship that they draw from each other. Both parties were able to provide the Tribunal with details of emotional support that they had drawn from the other. Both parties gave consistent oral evidence that they speak to each other several times a week, sometimes daily. They both said that they mainly used Viber because it was free. They also gave consistent oral evidence about who calls the other (each saying that it was cheaper for the review applicant to call and that if the visa applicant called first then the review applicant would call him back) and the duration of their calls (both saying that it could vary from 20 minutes to half an hour). The Tribunal notes that the documentary evidence submitted of the parties’ communication between each other is extensive (the review applicant’s phone records from July 2017 to October 2018). The Tribunal accepts the parties’ oral evidence which is corroborated by documentary evidence.

4. When the Tribunal asked both parties whether they saw the relationship as long-term, they replied in the affirmative and were able to provide reasons for holding this view. In view of the parties’ oral evidence provided at the hearing, the Tribunal finds that at the time of this decision, both the review applicant and the visa applicant view their relationship as being for the long term.

5. The Tribunal questioned both applicants, in depth, about their knowledge of each other and their lives and is satisfied that both the review applicant and the visa applicant demonstrated a good knowledge of the other.

6. The Tribunal found both parties to be credible. The Tribunal notes that the parties gave consistent oral evidence but, despite similarities, their evidence did not appear to be rehearsed but rather natural. The Tribunal accepts the parties’ oral evidence that they are in a genuine relationship.

7. For these reasons, the Tribunal places great weight on the evidence of the nature of each person’s commitment to the other.

   Other matters

8. The Tribunal notes that, in the primary decision, the delegate outlined his concern that the circumstances indicated that the visa applicant may have undertaken a divorce of convenience with his former wife and that the relationship with the review applicant was being used as a pathway for the visa applicant and the secondary visa applicant to be granted visas so that they could be reunited with the former wife’s relative in Australia.

9. As noted earlier, the delegate was also concerned by a lack of corroborating evidence from the period when the parties claim to have met and the claimed early stages of their relationship.

10. As noted earlier, both parties gave oral evidence that their relationship is a genuine relationship. For example, the review applicant said that she felt that the visa applicant was the right person for her as he is mature and she felt safe with him. She said that she wanted to follow her heart and that she did not want to leave it too long.

11. The review applicant stated that she believed that a number of the delegate’s concerns arose because of misunderstandings. Similarly, the visa applicant said that the atmosphere at his departmental interview had not been as friendly in tone as the Tribunal hearing.

12. The visa applicant said that when they had been introduced in 2014 that neither of them knew that they would later become engaged and plan to marry so they had not thought to keep records of all that they did together. He said that their feelings had developed over time but that at first their contact had been by way of Tango so they did not have records for that. Similarly, the review applicant said that there was a lack of evidence of their commitment in the early stages of their relationship because, while the visa applicant had wanted to send her gifts, she had discouraged this as she had no need for such things. 

13. The visa applicant denied that he and his former wife had been living at the same address when the divorce came into effect on 5 March 2015. He gave detailed evidence to explain why the divorce certificate showed the same residential address.

14. The parties impressed the Tribunal as credible and accordingly the Tribunal accepts their oral evidence and does not share the concerns expressed by the delegate in the primary decision. 

    Conclusion

15. 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?

16. 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. That is, that 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.

    The visa applicant intends to marry an eligible person—cl.300.211

17. The Tribunal accepts the visa applicant’s oral evidence that he intends to marry the review applicant. There is evidence of the review applicant’s Australian citizenship on the Department’s file. The Tribunal is satisfied that she is an Australian citizen.

18. At the time of this decision, the visa applicant continues to meet cl.300.211.

    The parties have met and are known to each other personally—cl.300.214

19. The Tribunal refers to the evidence mentioned earlier—namely, both parties’ oral evidence at the hearing as well as photographs of them together in Vietnam—and on this basis is satisfied that the visa applicant and the review applicant have met in person since each of them turned 18 and are known to each other personally.

20. At the time of this decision, the visa applicant continues to meet cl.300.214.

    The parties genuinely intend to marry and intend to do so during the visa period—cl.300.215

21. The Tribunal asked each of the applicants about their wedding plans. They gave consistent oral evidence that, when the visa applicant is permitted to come to Australia, they plan to marry.

22. When the Tribunal questioned the review applicant about why they had not married already, she said that she wanted to get married in Australia so that her parents could be present and involved. She outlined her brother’s medical conditions (corroborated by medical evidence) and said that her mother needed to stay in Australia in order to care for her brother and that her father needed to work. She explained that they had celebrated their engagement relatively quickly because they had wanted to have evidence for the Department of their intention to marry. She said that she had been happy to have a simple celebration in Vietnam at the time.

23. The review applicant told the Tribunal that her preference was for a summer wedding and she explained that they intended to have the ceremony in the morning at her family’s house—as is traditional—and that they would have a wedding reception in the evening. She told the Tribunal that she intended having a wedding reception with about 100 people and mentioned Clayton as the likely suburb for the reception. 

24. The visa applicant could not give precise details of their wedding plans, explaining that the review applicant had used English words so he could not remember what she had said. However, he thought that they would have a big wedding with a lot of people—family and friends—as that would make the review applicant happy.

25. On the basis of the evidence before it, the Tribunal finds that, at the time of this decision, the parties genuinely intend to marry each other. A prospective marriage visa is valid for nine months. The Tribunal finds that the parties intend to marry during the visa period.

26. At the time of this decision, the visa applicant continues to meet cl.300.215.

    The parties genuinely intend to live together as spouses—cl.300.216

27. Some of the evidence outlined with respect to the factors in r.1.15A(3) relates to the time of decision so is relevant here. The Tribunal finds that, at the time of this decision, the review applicant and the visa applicant genuinely intend to live together as spouses.

28. At the time of this decision, the visa applicant continues to meet cl.300.216.

    Conclusion

29. Accordingly, cl.300.221 is met.

    CONCLUSION

30. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 300 visa.

    DECISION

31. The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300.216 of Schedule 2 to the Regulations

    ·cl.300.221 of Schedule 2 to the Regulations

    Justine Clarke
    Member