Ison (Migration) - [2024] AATA 2184

Ison (Migration) [2024] AATA 2184 (21 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Geoffrey Keith Ison
VISA APPLICANT:  Ms Thi Yen Ngo
REPRESENTATIVE:  Mr Cuong Vo (MARN: 9250600)
CASE NUMBER:  1917289
HOME AFFAIRS REFERENCE(S):          BCC2018/4003019
MEMBER:David Barker
DATE:21 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

Statement made on 21 June 2024 at 11:28am
CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry and live together as spouses – rapid progression of relationship – no recent information or evidence provided or appearance at hearing – no specific plans for wedding and date in notice of intended marriage now passed – limited financial, household and social aspects of relationship, nature of commitment and communication while living in different countries – short visits and cohabitation in holiday accommodation – applicant’s lack of knowledge of sponsor’s circumstances – supporting statements contain unexplained contradictory information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 426A, 441A(5)
Migration Regulations 1994 (Cth), r 1.15A(3), (4), Schedule 2, cls 300.215(a), 300.216, 300.221
CASE
In the Marriage of Pavey (1976) 10 ALR 259
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicant (the applicant) applied for the visa on 29 June 2018. 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.
The delegate refused to grant the visa on 17 June 2019 on the basis that the visa applicant did not satisfy cl 300.215 and cl 300.216 of Schedule 2 to the Regulations because the delegate was not persuaded the evidence demonstrated that the applicant and her sponsor (Mr Geoffrey Ison) had a genuine intention to marry, or life together as spouses.
On 26 April 2023, the Tribunal wrote to the authorised recipient / authorised representative for the parties (the representative), in relation to the application for review made by the sponsor (as the review applicant) in respect of a decision to refuse to grant a Prospective Marriage (Temporary) (Class TO) visa to the applicant. This letter, without limiting the information that may be given, invited the parties to provide further information and supporting evidence addressing the circumstances of their relationship in accordance with reg 1.09A (de facto relationship) or 1.15A (married relationship) of the Migration Regulations 1994 (Cth), from the time the relationship commenced until the date on which the letter was sent.[1]
[1] The letter provided examples of the type of information which could potentially be provided regarding relevant aspects of the relationship, as are detailed in reg 1.09A (de facto relationship) or 1.15A (married relationship) of the Regulations.
The Tribunal did not receive a response to the aforementioned letter.
On 10 May 2024, the Tribunal wrote to the review applicant via the representative, advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 30 May 2024. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. No response to the hearing invitation was received on the form provided to the review applicant for that purpose.
On the afternoon of 29 May 2024 the Tribunal received an email from the representative, which stated “The sponsor and the Visa applicant in Vietnam have changed their telephone numbers but they did not inform me. I have just today, at 03PM, I got the sponsor's number and he would like your office to postpone to another day. Your approval would be highly regarded, Otherwise, they will obviously follow your order.”
The Tribunal consented the request for the hearing to be postponed to another day and relisted a further hearing for 14 June 2024 and sent a hearing invitation to that effect. In acknowledgement of the review applicant’s existing contact details, which showed that he was a resident of the ACT, the hearing invitation provided the option of the review applicant to, on 14 June 2024, appear either in-person, or remotely by video using the MS teams platform. Noting the indication from the email received from the representative on 29 May 2024, which indicated the review applicant and applicant (the parties) had changed their phone numbers, the Tribunal requested updated contact information for the parties.
No response was subsequently received to either this second hearing invitation, or the request for updated contact details for the parties. However, on 14 June 2024 the representative attempted to join the video hearing. Unfortunately, this was over a link in which both the audio and visual feed from the representatives end was distorted to the extent effective communication was not possible. A third party linked to the hearing by phone only and as such their purported identity as the sponsor was not able to be verified and their audio connection was in any event inadequate for effective communication. In light of these factors the hearing could not proceed on 14 June 2024 and was relisted as an in person hearing on 21 June 2024. As it was apparent the representative could hear the Tribunal on 14 June 2024, he was requested to respond to the hearing invitation for the hearing relisted for 21 June 2024 by close of business 19 June 2024. No response was subsequently received to this third hearing invitation.
The applicants did not appear before the Tribunal on the day and at the time and place of the rescheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5), the invitation has not been returned to sender, and that SMS reminders were also sent to the review applicant about the hearing on the most recent contact details available to the Tribunal. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a national of Vietnam and is currently 44 years old. The applicant was previously married from January 2000 to September 2016, with the marriage ending by divorce. There was one child from the relationship, who was born in 2002 and who is identified as a non-migrating family member on the visa application.
The review applicant (hereafter referred to as the sponsor) is an Australian citizen by birth and is currently 61 years old. He was previously married from December 1986 until January 1992, with that marriage ending by divorce. There were no children from that relationship.
Information provided in association with the visa application indicates that the parties claim that they were introduced by cousin of the applicant who was a long term friend of the sponsor. They claim to have met face to face for the first time when the sponsor travelled to Vietnam on 22 May 2017 and that they spent time with each other until the sponsor’s return to Australia on 11 June 2017.
The sponsor returned to Vietnam on 15 November 2017 and an engagement ceremony was held at the home of the applicant’s uncle on 4 December 2017.
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;
- Relationship statement of the applicant and sponsor (with translation) dated 1 November 2018;
- Form 888 statutory declaration by a supporting witness, Thi Lieu Tran, dated 30 March 2019;
- Form 888 statutory declaration by a supporting witness, Dao Thi Tran, dated 7 March 2019;
- Letter from Judy Aulich, registered marriage dated 10 April 2019;
- Untranslated records of phone communications in the April 2018 and May 2018 period;
- Photographs.
No documentary evidence or submissions were filed with the Tribunal in association with the review application.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant and sponsor have a genuine intention to marry and live together as spouses.
In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files.
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?
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.
The sponsor is an Australian citizen by birth. The parties filed a letter from Judy Aulich, registered marriage celebrant with the Department in association with the visa application. This letter dated 10 April 2019 confirmed the parties signed a Notice of Intended Marriage (NOIM) with her and paid a deposit for a marriage service scheduled for 10 August 2019, pending a visa being granted to the applicant.
Accordingly, the requirements of cl 300.211 are met.
Have the applicants met in person and are they known to each other personally?
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.
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.
Therefore, at the time of application, the requirements of cl 300.214 were met
Do the parties genuinely intend to marry?
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 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 specific plans for a marriage and wedding party, beyond identifying a month in which the marriage may take place in Australia, namely August 2019. The delegate 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. In particular, the delegate noted that when interviewed the parties could notidentify a specific date for the marriage, nor a location for the wedding celebration, nor how many guests the sponsor may invite.
Nearly five years has now passed and there is no evidence before the Tribunal which would suggest that the parties have arranged for an updated NOIM or otherwise made credible arrangements for a marriage or wedding celebration. In so far as their intention at the time of application can be gleaned from the available information, the Tribunal is not satisfied that at the time of application the parties had a genuine intention to marry and as a consequence the requirements of cl 300.215(a) are not met.
Do the parties genuinely intend to live together?
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.
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
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.
The parties have filed no financial documentation with either the Department or the Tribunal in support of the visa or review applications. There is no reference to the parties financial circumstances in the relationship statement which was filed with the Department in November 2018. The delegate refers to comments made by the applicant when interviewed by Departmental staff in which the applicant indicated that she does not ask the sponsor for money, as he was on unemployment benefits, but that eh had given her between $50 ad $100 in cash when he had visited Vietnam.
The Tribunal acknowledges that the parties have lived in different countries throughout their relationship and in such circumstances members in a committed relationship may not find it convenient to merge their financial affairs in the manner that couples may do when they reside in the same country. However, the Tribunal considers the extent to which there is no evidence to suggest the financial aspects of the parties relationship are indicative of those of a couple in a committed relationship with a genuine intention to live together to be of concern.
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
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.
The applicant has an adult children from her previous marriage. However there is no claim and no evidence of the sponsor assuming any joint responsibility for the care and support of this or any other children.
The parties have not provided any evidence to the Department or the Tribunal regarding the nature of their household. The delegate noted that when interviewed the applicant claimed she and the sponsor lived together during his trip to Vietnam from in May 2017 at guest houses in Hanoi and Thai Binh and that during the sponsor's subsequent trips, the parties also stayed at guest houses. The delegate noted that no evidence was provided to support those claims.
On the basis of Department movement records, the Tribunal accepts that the sponsor travelled to Vietnam on two occasions in 2017 and returned there again in 2019 and December 2023. The Tribunal does not consider this to show the parties have at any stage established a shared household in which they have lived with each other, or even that the parties were together during the periods in which the sponsor has been in Vietnam since 2017. With regard to this factor, the Tribunal is aware of photographs which were provided to the Department in association with the visa application but is not persuaded these photographs can demonstrate the extent of contact between the parties during trips the sponsor has made to Vietnam. In any event short term cohabitation in holiday accommodation in the view of the Tribunal does not constitute the establishment of a shared household.
The parties have not established a shared household and the context of their claimed 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.
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
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.
The delegate noted that the applicant had not had by the time of their decision in June 2019 had any contact with the sponsor’s siblings and considered this to be implausible if the parties had a genuine intention to marry and live together as spouses. There is no evidence before the Tribunal that the applicant has had, since that time contact with siblings or other relatives oof the sponsor, either in person or through talking with them by phone or other electronic platforms.
With respect to two witness support statement declarations in May 2019, from cousins of the applicant, Dao Thi Tran Thi Lieu Tran, the delegate noted that the declarations contain relationship information that is in contradiction with information provided by the applicant during her interview. In the statutory declaration provided by Thi Lieu Tran, she claims that she introduced the parties, helped them get in touch with each other and assisted with the visa application process. In the statutory declaration provided Dao Thi, no mention is made of her having introduced the parties as was claimed by the applicant during the interview, only that the parties started to ask her if they you could talk to each other. The Tribunal is concerned that there is no explanation for the inconsistencies between what the applicant is reported to have said during an interview and information in the two witness support statement declarations which were filed with the Department in association with the visa application.

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 or relatives as a couple in a committed relationship with an ongoing intention to marry, at any time more recently than March 2019.
No photographs have been filed with the Tribunal in association with the review application. As a consequence there is no photographic evidence from a time more recent than early 2019 and given, as pointed out by the delegate all bar one of photographs which were filed were from an engagement celebration in December 2017, it is likely there is no indication through photographs of whether the parties present to other people as a couple form any time more recent than December 2017.
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 sponsor’s family support the parties’ relationship or attest to the parties having a genuine intention to marry. There is no indication of the views of any friends or acquaintances, or members of the applicant’s family from any time more recently than March 2019 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 and such as it is, some six and a half years have passed since the photographs were taken. Accordingly, the Tribunal does not consider it appropriate to give more than very limited weight to this aspect of the parties’ relationship.
Nature of the commitment
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.
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 May 2017 and then became engaged to marry in December of that year. The Tribunal considers this to be a rapid progression in a relationship, particularly in light of an indication from the delegate’s decision record that the parties required the assistance of the applicant’s cousin to interpret so that they could communicate with each other. The relationship statement filed with the Department in 2018 provides no indication of factors which influenced the parties decision to become engaged and planned to live together. There is no indication of shared interests or that the parties derived emotional support or companionship from each other.
As referred to earlier in this decision, there is indication from Department movement records that the sponsor has travelled to Vietnam on two occasions in 2017 and returned there again in 2019 and December 2023. There is however no credible evidence to show the parties spent the time the sponsor was in Vietnam during those trips, which cumulatively amounts to around 87 days, in each other’s company on more than a limited amount of occasions.
The delegate noted the applicant’s lack of knowledge of the sponsor’s circumstances and raised concern this was inconsistent with the extent of the parties claimed regular communication with each other. The delegate noted that when interviewed, the applicant:
·did not know the actual number of siblings the sponsor has. She stated that the sponsor has a sister and a brother and some siblings who are deceased. In the 40SP form , the sponsor referred to four siblings in total, one sister who is deceased, two brothers and one sister who live in Australia.
·did not know the name of the brother's sponsor who the applicant claimed lives with him . She stated that she did not know how to say the name as it's an English name.
·stated that the sponsor's house he lives in has two bedrooms. The sponsor declared that in the 40SP form that his house has three bedrooms.
·stated that the sponsor lives with his brother. In the 40SP form, the sponsor declared that only one person lives in his house.
·did not have a clear idea of the sponsor's financial situation, including how much in unemployment benefits the sponsor receives, since when he started to receive unemployment benefits and whether he has any savings or how much he pays in rent. The applicant claimed during the interview that she did not ask him questions relating to money or finance.
·did not know where the sponsor's lives, only that it is about one kilometre away from her cousin's place.
·stated that the sponsor uses some part of the day to collect empty beer cans to sell for money but she did not know much the sponsor receives for this or in which areas the sponsor walks around to collect these cans.
Whilst the Tribunal does not consider some of the circumstances of the sponsor which the applicant was unaware of at the time she was interviewed in 2019 to be that significant, no evidence or submissions with regard to the commitment aspect of the parties’ relationship have been filed with the Tribunal in association with the review application. There is therefore no basis on which the Tribunal could have confidence the parties relationship has progressed such that their knowledge of each other’s circumstances and the extent to which they provide emotional support and companionship to each other is indicative of a couple with a genuine intention to live together as spouses.
The Tribunal is aware that some screen shots of untranslated electronic communication were provided to the Department in association with the visa application. This communication appear to have occurred in April and May of 2018 and there is no indication as to the content of communication, or even who participated in the interactions. The Tribunal is not satisfied positive weight can be given to this evidence.
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 engagement on 4 December 2017 is convincing. The Tribunal has therefore not accorded positive weight to this factor or to the claimed duration of the relationship. The parties 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 and that they have an intention to live together as spouses. 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 period in which they have claimed to be in a committed relationship.
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
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.
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 and of the parties’ commitment to the relationship 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 recent familial support for the relationship and the rapid development of the relationship and the limited time the parties have possibly 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 limited weight given to the photographic evidence.
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.
For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.
David Barker
Member