Lun (Migration)

[2017] AATA 2836

Lun (Migration) [2017] AATA 2836 (18 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Khanha Sao Lun

VISA APPLICANT:  Mr Vuthy Khy

CASE NUMBER:  1600826

DIBP REFERENCE(S):  BCC2015/1012178

MEMBER:Nicholas McGowan

DATE:18 December 2017

PLACE OF DECISION:  Melbourne

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:

· cl.300.216 of Schedule 2 to the Regulations.

Statement made 18 December 2017 at 1:39pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Reasonable knowledge of review applicant’s life – Messaging chat history – Need for financial stability and emotional support

LEGISLATION
Migration Act 1958, s 5F
Migration Regulations 1994, r 1.15A, Schedule 2, cl 300.216

STATEMENT OF DECISION AND REASONS

1. The visa applicant (the ‘applicant’) applied for the visa on 18 March 2015. The criteria for a Subclass 300 (Prospective Marriage) 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.

2. The delegate refused to grant the visa on January 6, 2016 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations.

3. The review applicant appeared before the Tribunal on Monday 18 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, and a witness (the review applicant’s sister). The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The review applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Do the parties genuinely intend to live together?

4. 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 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).

5. 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).

6. 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.

7. While the parties’ had seen one another (from afar) over the years, they had not spoken until their respective mother’s arranged it. They first spoke (and actually met) on 14 April 2014 in an arranged meeting orchestrated by their mothers in Cambodia. The parties’ oral evidence in this regard is both consistent and plausible. The documentary evidence, including pictures of the families together at their engagement (held 23 February 2015) speaks to the same.

8. The Tribunal conducted an almost three-hour long public hearing which covered all aspects of the parties’ lives. At times the parties’ evidence was not consistent. On occasion the applicant’s knowledge or recall of events and information was poor. These aspects were put formally to the review applicant, most notably the review applicant’s poor knowledge of the review applicant’s daughter; his inability to recall where the review applicant had lived prior; and his seemingly contradictory evidence that the review applicant had ceased living with her ex-husband at the end of 2014, when the review applicant had advised it was around April 2016.

9. The reasons for the apparent inconsistencies appeared to be largely the review applicant’s failure to highlight various arrangements with the applicant, though this can be attributed (in-part) to cultural sensitivities, in these instances the Tribunal accepts these inconsistencies were not in themselves fatal to the criteria that needs to be met for the grant of the visa.

10. Further, the Tribunal accepts that until the applicant arrives in Australia, his relationship with his step-daughter is not a close one, and accepts the ‘integration’ of a step-father would require thoughtful management, particularly as her father continues to play an integral role in her welfare and custody.

11. Conversely, the applicant was able to illustrate that he had a reasonable knowledge of the review applicant and her life, including her finances, the nature of her household and her daily routine, including the custody arrangements in pace for daughter. The applicant was also able to detail with good recall the times and reasons for his transferring money to the review applicant. On these aspects, the review applicant and applicant were both consistent and knowledgeable.

12. Upon request from the Tribunal to look at the review applicant’s Viber history to confirm her claim that she spoke with the applicant regularly, the review applicant willingly provided such. The Viber history contained in her mobile device was very important in this case. It was important because it detailed the past year’s ‘back-and-forth’ conversations between the parties’, including discussions about their finances, the visa process, living arrangements, and an indication of their emotions and feelings toward one another. The Tribunal was satisfied that this evidence – which was sought ad-hoc and willingly provided, perhaps more than any other, spoke positively to the parties’ intentions, and ultimately their intentions as far as their relationship was and is concerned. It was this evidence which also served to corroborate the review applicant and applicant’s oral claims made in the same regard.

13. The Tribunal took the opportunity of the public hearing to quiz the review applicant about why she had not seen the applicant in almost two years. The Tribunal noted the applicant had applied for and was refused a visitor visa for him to come to Australia during that two-year period. The Tribunal also noted the review applicant’s explanation which detailed her work commitments and more tellingly (from her perspective) her need to finalise a land purchase for which she was required to be present in Australia for a prolonged period. On the subject of the land purchase both the applicant and review applicant demonstrated a shared understanding of the current status of the acquisition. The Tribunal also noted that the review applicant has travelled to Cambodia on no fewer than four occasions since 2014 to see and spend time with the applicant.

14. During the public hearing the Tribunal took oral evidence from the review applicant’s sister. The review applicant is presently sharing an apartment with her sister and her husband. The review applicant’s sister’s evidence was helpful, but not determinative. It was helpful to the extent that it spoke consistently to the parties’ future intentions, and claims about their relationship and its inception (based on what she had observed). It was not determinative however, because her recall of details and specifics was somewhat limited, particularly around the ‘time of application’ when her relationship with her sister was less intimate as they lived apart and only saw one another irregularly during that period.

15. The Tribunal has remained mindful that it is not considering the parties’ as a married couple but as a couple with the intention to marry. Accordingly, and having considered all the evidence, the Tribunal has been satisfied that on balance, the parties have demonstrated a clear intention to marry which is, in this case, both consistent with their conservative culture, and within the broader acknowledgment that “usual” expectations around the period of inception of the relationship might not readily be applied in every case.

16. Importantly, one of the key drivers for the review applicant in seeking a partner is to assist in the provision of financial stability and emotional support. This is an important consideration in this case, and ably demonstrated by the review applicant’s at times heartfelt oral evidence in which she spoke of the need to provide a stable family environment for her daughter, and a loving and supportive relationship for herself. Critically, these insights were important because they spoke clearly to the review applicant’s motivations and by logical extension, her future intentions, and favourably so. In this, the applicant was likeminded.

17. Given 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.

18. Accordingly, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.

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