Ma (Migration)

[2018] AATA 5693

Ma (Migration) [2018] AATA 5693 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Philip Ma

VISA APPLICANT:  Ms Thi Tra My Hoang

CASE NUMBER:  1714674

DIBP REFERENCE(S):  BCC2016/2961550 OSF2016/038493

MEMBER:P. Maishman

DATE:19 December 2018

PLACE OF DECISION:  Perth

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

·cl.300.215 of Schedule 2 to the Regulations

·cl.300.216 of Schedule 2 to the Regulations

Statement made on 19 December 2018 at 5:11pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry – traditional ceremony at home followed by a reception – have not booked a venue due to visa uncertainty – sponsor’s family unaware of engagement – genuine intention to live together as spouses – regular and constant communication – joint bank account – joint contribution to purchase of property – credible witnesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.215, 300.216

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for 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. The visa applicant applied for the visa on 6 September 2016. 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 (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.300.215 and cl.300.216.

3. The delegate refused to grant the visa on 26 June 2017 on the basis that the visa applicant did not satisfy cl.300.215 or cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant and sponsor established that they genuinely intended to marry, that their marriage would take place within the visa period, or that the parties genuinely intended to live together as spouses.

4. The review applicant (sponsor), Mr Philip Ma, appeared before the Tribunal on 1 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (applicant), Ms Thi Tra My Hoang.

5. The review applicant was represented in relation to the review by his registered migration agent, Mr Galloway. Mr Galloway attended the hearing.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The sponsor provided a copy of the delegate’s decision with the application for review. The decision record summarises the applicant’s visa history. The applicant first arrived in Australia on a subclass 573 visa. She was granted a subclass 485 visa on 30 January 2015. She departed Australia on 4 February 2016 and returned on 22 February 2016. The visa applicant is a 27-year-old Vietnamese citizen. She declares that she has had no previous relationship.

8. The Tribunal was provided a copy of the Department’s file containing the visa application, the sponsorship form and the evidence referred to in the delegate’s decision. The sponsor is a 30-year-old Australian born citizen. He declares that he has had no previous relationships.

9. With her application for review the applicant provided the Tribunal a copy of the delegate’s decision record and additional evidence:

   a.seat allocation stubs for a flight on 25 January;

   b.a number of photographs;

   c.flight/travel itineraries;

   d.screenshots of SMS conversations and call records;

   e.an unsigned statement received at the Tribunal on 23 November 2017;

   f.ANZ account statement for joint account *2541;

   g.money transfer receipt; and

   h.documents detailing the purchase of real estate in July 2017.

10. The applicant and sponsor gave evidence separately at the hearing. The Tribunal questioned them about their relationship history, development of their current relationship, knowledge of each other’s backgrounds and family relationships, the financial, social and household aspects of their relationship and the nature of their commitment to one another. Their responses were generally consistent, differing enough to indicate they were providing authentic responses from their own perspectives and knowledge. The Tribunal found the applicant and sponsor to be credible and honest witnesses and accepts their oral evidence on that basis. The Tribunal has considered their oral evidence together with the additional documentary evidence submitted to the Tribunal to reach the findings below.

11. The issues in the present case are whether the parties genuinely intend to marry genuinely within the visa period and whether the parties genuinely intend to live together as spouses

    Do the parties genuinely intend to marry?

12. 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.

13. The Department’s file contains a copy of a Notice of Intended Marriage (NOIM) dated 15 August 2016 indicating the applicant and sponsor intended to marry on 18 March 2017. The parties gave evidence that they had not obtained a further NOIM as they had already paid for one, they were unsure when they might obtain the visa. The parties were consistent in their evidence that they intended to have a traditional ceremony at their home followed by a reception at a Swan Valley winery. They had not yet booked a venue given the uncertainty of their status. The parties have obtained their wedding rings and the applicant is getting her dress made in Vietnam before she comes to Australia. The parties do not foresee that they will have difficulty arranging their wedding to take place during the visa period because they know how many people they are inviting, they are arranging a civil celebrant, and they can readily book restaurant in the Swan Valley.

14. The Tribunal raised concern of the Department that the sponsor’s family were unaware of his engagement. The parties gave consistent evidence that the applicant was concerned about the sponsor’s family’s reaction to them announcing our getting married so soon after commencing a relationship. The anxiety resulted in the sponsor not telling his family about the strength of their relationship for some time.

15. The Tribunal finds that the applicant and sponsor genuinely intend to marry and that their marriage is intended to take place within the visa period.

16. At the time of application the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a). The proposed date for the marriage is within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together?

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). 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.

18. The parties gave evidence that the applicant had been in Australia for about 10 years as a student/skilled worker and was introduced to the sponsor by a friend of a friend in April 2016. Over the next few months they spent most of their time together and the applicant stayed at the sponsor’s house mostly, although they did not formally move in together. The applicant and sponsor new the applicant’s visa was to cease and on 10 July 2016 he proposed that they get married. The applicant left Australia because her visa ceased at the end of July 2016. The sponsor went to Vietnam in early September 2016 and the applicant and sponsor celebrated an engagement ceremony with the applicant’s family. The applicant lives in Vietnam with her parents and sister lives nearby. The sponsor has visited the applicant in Vietnam 5 times and stays with her at her parent’s house.

19. 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.

20. The Tribunal considered the financial aspects of the applicant and sponsors relationship. The parties have a joint ANZ Saver account opened in July 2016. The account statement shows some deposits through July 2016. It is not used as a transaction account and continues to earn interest on the balance. The parties gave evidence that they purchased a house in July 2017. Documents provided after the hearing show that a house was purchased in the sponsor’s name in July 2017. The sponsor has a mortgage in his name only. The parties gave evidence that the applicant contributed $20,000 to the deposit and the sponsor contributed $30,000 to the deposit. The sponsor provided account statements showing that 4 instalments of $5000 were deposited into his bank account between 21 August and 27 August 2017 the payments are referenced as coming from My Hoang. There is no documentary evidence of direct joint ownership of real estate or other major assets, and no evidence of joint liabilities. The Tribunal finds that the applicant and sponsor have both contributed significant amounts of money to the purchase of an asset held in the sponsor’s name in trust for the applicant. The Tribunal considers that the financial arrangement between the applicant and sponsor shows a significant level of trust between them and weighs in favour of finding that they genuinely intend to live together.

21. The Tribunal considered the household arrangements of the applicant and sponsor. The parties did not live together when they’re in Australia but the applicant did stay over regularly at the sponsor’s house. The applicant insisted on doing most of the cooking and cleaning. SMS communications between the couple indicates discussions about the purchase of preferred properties and furniture. The Tribunal considers that evidence supports that the applicant and sponsor actively plan the running of their household together. The Tribunal finds the household arrangements of the applicant and sponsor when they are together, weighs in favour of finding that they genuinely intend to live together.

22. The Tribunal considered the social aspects of the applicant and sponsor. The Tribunal queried why the sponsor’s family were unaware of his engagement to the applicant. The sponsor was forthright in his evidence that the applicant didn’t want his family to know because she was nervous she would be rejected by them. The sponsor said that he didn’t push the issue because they were rushing into their relationship. They rushed into their relationship because they wanted to be together. When the Partner application was refused the sponsor told his family and they were accepting of the applicant and their relationship. The Tribunal accepts the explanation in the context of a prospective marriage visa application and does not weigh the lack of social recognition of their relationship at the time of the application against finding that they genuinely intend to live together.

23. The Tribunal considered the applicant and sponsors commitment to each other. The applicant said she had lived in Australia for nearly 10 years and was westernised in her outlook. She considered the sponsor was Australian and neither of them were inclined to follow the traditional Vietnamese ceremony in order to get married. They wanted to be together and they declared their relationship to the applicant’s parents and family in Vietnam. The sponsor’s family did not attend because of the applicant’s uncertainty about how they would accept her and also that they only wanted a small celebration. They have entered into a significant financial arrangement with the purchase of their property. They see the relationship has been permanent. The Tribunal finds that the applicant and sponsors commitment to each other weighs in favour of a finding that they genuinely intend to live together.

24. 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.

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

    DECISION

26. 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.300.215 of Schedule 2 to the Regulations

    ·cl.300.216 of Schedule 2 to the Regulations

    P. Maishman
    Member