LE (Migration)

[2017] AATA 216

LE (Migration) [2017] AATA 216 (1 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Kim Thanh Le

VISA APPLICANT:  Mr Van Huynh Le

CASE NUMBER:  1619983

DIBP REFERENCE(S):  OSF2015/071498

MEMBER:Helena Claringbold

DATE:1 February 2017

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 01 February 2017 at 7:20am

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Genuine intention to marry – Credibility issues – Biological child – False and misleading information – Inconsistent information

LEGISLATION

Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, r 1.15A, cl 300.215, cl 300.216, cl 300.221

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. On 25 June 2015, Mr Van Huynh Le applied for a Prospective Marriage (Temporary) (Class TO) visa.  The application was made on the basis of his relationship with Ms Thi Kim Thanh Le, the sponsor and review applicant.

3. On 20 September 2016, a delegate of the Minister for Immigration to refused to grant the visa. The delegate refused the visa on the basis that the visa applicant did not satisfy cl.300.215, cl.300.216 and cl. 300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the parties genuinely intended to marry within the relevant time period and was not satisfied that the parties intended to live together as spouses.

4. On 18 January 2017, the review applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record.  The Tribunal also received evidence from Mr Le and a witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.   

5. The parties provided inconsistent evidence to the Tribunal; they contradicted their evidence, were evasive in responding to questions and fabricated their evidence to the Tribunal. The parties have not satisfied the Tribunal that they are credible.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Departmental case file , OSF2015/071498 folios numbered 1-126 and the Tribunal’s case file 11619983, folios numbered 1-160 and the evidence given at the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether at time of application and at time of decision the parties intend to marry within the relevant timeframe and intend to live together as spouses in a genuine and continuing spousal relationship.

   BACKGROUND

9. The applicant was born in 1985 in Dong Thap, Vietnam. His parents and two sisters live in Vietnam.

10. The sponsor was born in 1982 in Dong Thap, Vietnam.  She is an Australian citizen. Her previous marriage began in 2006 and ended in divorce on 30 November 2014.   Her parents, three sisters and a brother live in Vietnam.

11. In 2005, the parties met through familial relationships. In January 2012, the parties met again through their families.  In April 2013, the parties went out together. In January 2014, the parties travelled to tourist destinations and spent time together.  The sponsor told the visa applicant about her troubled marriage.  After gaining permission from both their families on 7 March 2015, the parties wedding party was held at the sponsor’s family home with three hundred attendees.  On 8 March 2015, the traditional wedding took place again at the sponsor’s family home with three hundred and fifty attendees.  In addition the parties stated that the Cuu Long Hotel and Restaurant (where the visa applicant works) organised a twelve table dinner to congratulate them. The visa applicant stated that they were unable to obtain a marriage certificate and decided to apply for the prospective marriage visa which is under review.  They claim to have intended to marry in Australia on 12 December 2015. 

12. On 17 October 2016, the parties’ son, Ethan was born.  Sonic Genetics in a DNA report dated 18 November 2016 stated that the visa applicant is the putative biological father of Ethan and that the sponsor is the putative biological mother of Ethan.  On the evidence before it The Tribunal accepts that the parties are Ethan’s biological parents.

    The Tribunal hearing

13. The sponsor provided information including, but not limited to, the following: At the time of application, the information the parties provided in their statements is incorrect.  At that time the parties claimed the following: They held their marriage ceremony and celebrations on the 7 and 8 March 2015.  On 7 March 2015, the bride’s party was held in her family’s home with between three hundred to three hundred and fifty guests attending.  On 8 March 2015, the official wedding with traditional ceremonies was held at the sponsor’s family home.  The applicant and his family went to the sponsor’s family home for this and both families took part in the events with three hundred and fifty guests attending. In addition, the Cuu Long Hotel and Restaurant hosted a twelve table dinner to congratulate the parties.  The parties applied for a marriage registration certificate however, the sponsor’s divorce documents were incomplete and the parties did not obtain their marriage certificate. In August 2016, the visa applicant stated that at the interview with the Australian Consulate General officer, he had provided some inexact answers due to “job pressure”.  In addition, he stated that the parties attended a friend’s wedding on 6 January 2014, at the Cuu Long Hotel and Restaurant.

14. The sponsor told the Tribunal that the parties were not married on the 7 and 8 March 2015 as they had originally claimed.  She said that the parties were married on 18 and 19 January 2014. The parties provided the March dates, on the advice of their lawyer, who stated, that it would appear better to provide the March dates as they were after the sponsor’s divorce on 18 November 2014.  She said that the lawyer prepared the visa application and the parties left that process to the lawyer.

15. The visa applicant provided information including, but not limited to, the following:  The lawyer stated that if the parties put the correct date for their marriage, the application may be rejected and the visa applicant may go to jail. 

16. The Tribunal put information to the sponsor under the relevant provision.  The sponsor requested and was granted additional time to respond.  The information is as follows:

17. 1) The visa applicant provided evidence that on the 18 January 2014 a party was held at the sponsor’s family home to introduce both families to each other and both families attended.  The party began in the daytime and continued into the evening. The visa applicant’s evidence was put to the sponsor as it was inconsistent with her evidence that on 18 January 2014 friends arrived at her family home and they prepared food for the evening celebration.  Only the sponsor’s family attended the celebration and they prayed to their ancestors.

18. The sponsor did not respond to this matter.  The Tribunal on the evidence is not satisfied that the parties are credible.  They have been unable to provide agreed information about the events that took place with regard to their wedding celebrations.  At the time of visa application they provided erroneous dates of 7 and 8 March 2015 claiming that their marriage took place then.  To the Tribunal the parties provided dates of 18 and 19 January 2014 claiming that is when their marriage took place.  Even if the Tribunal accepted that the dates of 7 and 8 March were given on the advice of the parties’ lawyer.  The parties provided those dates in support of their relationship and now claim the dates were incorrect.  On the parties evidence they provided false and misleading information as part of the visa application and did so knowingly.

19. 2) The visa applicant provided evidence that the 19 January 2014 was “the main day” and they had a party, “actually it was an engagement party”.  Family, friends and neighbours gathered.  The visa applicant’s family went to the sponsor’s family home to collect the sponsor and her family. The visa applicant’s evidence was put to the sponsor as it was inconsistent with her evidence that the 19 January 2014 was the official and traditional wedding.  The visa applicant’s family went to the sponsor’s family home and presented items to their ancestors.  The combined families then went to the visa applicant’s family home and the official ceremony took place there in front of three hundred attendees.

20. The sponsor did not respond to this matter.  As discussed at paragraph 18, the Tribunal on the evidence is not satisfied that the parties are credible because on the sponsor’s own admission they provided false information as part of their visa application.

21. 3) The visa applicant provided evidence that the sponsor was generally healthy throughout her pregnancy.  However from the first to the fourth week she was uncomfortable. The sponsor was sick from the second to the fourth month and she fainted at work.  The sponsor worked until she gave birth when she stopped working. The visa applicant’s evidence was put to the sponsor as it was inconsistent with her evidence that she suffered from sickness from her third month of pregnancy until she gave birth.  In the thirtieth week, because of the sickness, she couldn’t continue working and stopped working.

22. In her post hearing submission the sponsor stated that the parties were in contact every day.  The visa applicant does not pay attention to details but he basically knew what was happening.  He did not know how long the sponsor had suffered sickness but he knew she was unwell.  Additionally, the sponsor took maternity leave earlier than planned and because in Vietnam people take maternity leave two weeks prior to birth; the visa applicant assumed that the sponsor would do the same.  The Tribunal’s view is that pregnancy is an important event in life.  The parties told the Tribunal that they spoke to each other every day and the sponsor told the Tribunal at hearing that the applicant knew about her circumstances.  However, this was not the case.  The Tribunal on the evidence is not satisfied that the parties offered each other companionship and support during an important time in the parties lives because on the evidence the visa applicant was not aware of the sponsor’s sickness and when she stopped work prior to giving birth.

23. The visa applicant provided evidence that the sponsor borrowed money from her cousin.  When the cousin travelled to Vietnam the visa applicant returned the money to that person.  The visa applicant’s evidence was put to the sponsor as it was inconsistent with her evidence that the visa applicant transferred $15,000 to assist the purchase of her home and the money was brought from Vietnam by the sponsor’s cousin.

24. In her post hearing submission the sponsor stated that “the actual story is my husband and his family managed to gather 15 thousand to help me pay the mortgage”. Her husband gave the sponsor’s visiting cousin, the money for the sponsor.  This saved the sponsor transfer and conversion fees and the hassle of carrying the money.  This transaction may or may not have taken place, because of the parties’ inconsistent evidence and the Tribunal’s concerns about the parties’ credibility and because there is no independent evidence to support this transaction, the Tribunal places no weight on it.

25. The Tribunal asked the sponsor about her evidence that the dinner held on the 6 February 2014 the Cuu Long Hotel and Restaurant was to introduce the parties as a future couple.  This was perplexing because on the information provided to the Tribunal the parties’ corrected dates for their marriage was 18 and 19 January 2014. The sponsor responded that most of the parties’ friends had not attended the marriage and the parties announced themselves as a future couple.

26. The witness provided information including, but not limited to, the following:  The sponsor is in a difficult financial position.  The Prospective marriage visa application was made because it would be faster than a spousal visa application.  It is a genuine relationship but the parties failed to demonstrate this.  The witness didn’t attend the parties wedding.

    Are the parties validly married?

27. Although the parties claimed to have married, the parties provided inconsistent dates and information to support their claimed marriage. The parties did not provide independent evidence about the recognition or legality of their marriage from any relevant authority. There is no evidence before the Tribunal that the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Do the parties genuinely intend to marry?

28. At the time of application the parties provided a Notice of Intention to Marry with an intended date of marriage of 12 December 2015. The sponsor told the Tribunal that the parties intended to marry on that date. She stated that when the visa applicant arrives in Australia they will organise their wedding. She stated that her cousin knows a Marriage Celebrant and someone to witness the marriage and she will help with organising the wedding. Other than this evidence the parties did not provide independent information about their future marriage. The parties have not satisfied the Tribunal that they intend to marry within the visa period. Therefore, the applicant at the time of application and at the time of decision does not meet cl.300.215.

    Do the parties genuinely intend to live together?

29. Clause 300.216 requires that at the time of application and the time of decision ‘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 husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). Whilst 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.

30. 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.

31. The parties do not share a bank account.  The sponsor is purchasing a property in Australia.  She told the Tribunal that she obtained deposit for the property through her involvement in a pyramid money saving and lending group. She said she contributed $50 to $100 monthly and her repayments are $100 monthly and sometimes more.  She provided a bank statement for her bank account. In addition, she stated that the visa applicant transferred $15,000 to assist her in the purchase.  When the Tribunal asked about the money transfer, the sponsor stated that the money was brought from Vietnam by the sponsor’s cousin.  The Tribunal has been provided a bank statement showing a repeated payment of $1,500 to a person.  A statement is also provided that this is the repayment to the pyramid group.  Other information is that the parties have individual bank accounts and live financially independently of each other.  There is no independent evidence to support the claimed $15,000 transfer from the visa applicant to the sponsor.  On the evidence, the parties do not appear to have pooled their financial resources.

32. The sponsor told the Tribunal that the visa applicant’s work is not easy because of his working hours.  To celebrate the New Year the parties went to visit relatives, they travelled and went out together.  Photographic evidence depicts the parties with a group of people. The photographs are dated 6 and 8 February 2014.  Other video images depict the parties during what appears to be their wedding celebration.  Third party statements provide general comment about the sponsor’s circumstances. They do not give insight into the development of the relationship or into how the parties support each other.

33. The parties have not formed a household.  The sponsor told the Tribunal that she stayed in the visa applicant’s home after her divorce became finalised.  The Tribunal accepts that the parties live in separate countries and have not formed a household.

34. When discussing their child the parties stated that they want to be together and want to raise their child and live together as a family. The parties will organise their wedding in Australia once the visa applicant arrives here and will live as a family.

35. With regard to the considerations for a spousal relationship and the degree these factors may be applied to determine a future intention, the Tribunal is not satisfied that the review applicant and the visa applicant demonstrated knowledge of each other broadly consistent with a couple who intend to live together as spouses.  The Tribunal accepts that the parties are known to each other and that the sponsor has returned to Vietnam. The Tribunal examined the parties’ knowledge of their individual and combined financial affairs; the nature of their respective households; their families; the recognition of their relationship by their families; the social aspects of the parties’ relationship and the nature of the parties’ commitment to each other. Having discussed these aspects thoroughly at hearing and as recorded in the Tribunal audio recording and after considering the evidence individually and as a whole, the Tribunal is not satisfied that the parties have a genuine intention to live together as spouses. The parties have not satisfied the Tribunal that they are credible. The parties knowingly provided false and misleading information about their marriage with the visa application.  At the Tribunal hearing the parties provided inconsistent information including, but not limited to, the events surrounding sponsor’s pregnancy; the circumstances and proceedings about their engagement-wedding celebrations and ceremony.  With regard to the parties claim that false and misleading information was provided as a result of the advice from their lawyer.  The visa applicant and the sponsor signed the visa application forms stating that the information they provided was complete, correct and up to date in every detail. The Tribunal considers it the parties’ responsibility to ensure that they provide correct and truthful information to support the Prospective marriage visa application and that they would be able to support that information with an agreed account of events. 

36. Therefore, the applicant at the time of application and at the time of decision does not meet cl.300.216.

37. The Tribunal has considered the evidence both individually and as a whole.  The parties have not satisfied the Tribunal that they intend to marry within the visa period and have a genuine intention to live together as spouses.  The Tribunal is not satisfied that the parties knowledge of their personal circumstances is commensurate with that of a couple who have known each other for over three years; who claim to have communicated with each other over that time and have been in each other’s company on many occasions; who claim to have committed to a future life together and to have a genuine intention to live together as spouses.

1. The Tribunal has also considered that the parties have a biological child together. While acknowledging its importance, the Tribunal is not satisfied that a child born to the parties, in itself, supports that the parties are in a genuine prospective marriage relationship and it is does not accept this consideration to prevail over the requirements for the visa applicant to meet the mandatory visa criteria for the grant of the visa.

2. Accordingly, at the time of application and at the time of decision the Tribunal is not satisfied that the parties’ intend to marry within the visa period or intend to genuinely live together as spouses; therefore cl.300.215 cl.300.216 and cl.300.221 are not met.

3. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

   DECISION

4. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

   Helena Claringbold
   Member