Nguyen (Migration)

[2021] AATA 3859

Nguyen (Migration) [2021] AATA 3859 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Trang Thi Thuy Nguyen

VISA APPLICANT:  Mr Vu Ngoc Thach Nguyen

CASE NUMBER:  1800954

HOME AFFAIRS REFERENCE(S):          BCC2017/1680913

MEMBER:Nicholas McGowan

DATE:5 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 visa:

· cl.300.211 of Schedule 2 to the Regulations;

· cl.300.214 of Schedule 2 to the Regulations;

· cl.300.215 of Schedule 2 to the Regulations;

· cl.300.216 of Schedule 2 to the Regulations; and,

· cl.300.221 of Schedule 2 to the Regulations

Statement made 5 October 2021 at 12:11pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – intention to marry within visa period and to live together as spouses – oral evidence and notice of intended marriage form – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 5F(2)(a)-(d)

Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 300.215, 300.216, 300.221

STATEMENT OF DECISION AND REASONS

1. Mr Nguyen applied to the Department for the Prospective Marriage (Temporary) (Class TO) visa on May 11, 2017.

2. When the visa application was lodged, the visa contained only one subclass. The criteria for that subclass (300 (Prospective Marriage)) 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.

3. The Department refused to grant Mr Nguyen the visa on January 10, 2018.

4. The Department refused to grant the visa because it found the parties did not satisfy at the ‘time of application’ clauses 300.215 and 300.216, and (at the time of decision) cl.300.221 of Schedule 2.

   BACKGROUND

5. At the time the parties applied for the visa the visa applicant was 26 years old and had declared no previous marriages or de facto relationships. The review applicant (the visa applicant’s sponsor for the visa) was 31 years old, an Australian citizen, residing in Thomastown and had one previous marriage.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the visa applicant intend to marry an eligible person? (clause 300.211)

6. The Tribunal accepts that the visa applicant intends to marry the review applicant who is an Australian citizen.

7. The Tribunal finds that the requirements of clause 300.211 are met.

   Have the parties met and are they known to each other personally? (clause 300.214)

8. On the basis of the available evidence, the Tribunal is satisfied the parties have met (in Australia in December 2015) and were known to each other personally before the visa application was lodged on May 11, 2017. Therefore, clause 300.214 is met.

   Do the parties intend to marry? (clause 300.215(a) and (b))

9. The Tribunal discussed with the review applicant that requirement to marry within a given timeframe. The Tribunal also had regard to the undertaking included in the original application form. The Tribunal has also had regard to new documentation provided as part of this review, including a notice of intended marriage form (notwithstanding the timeframes will change consistent with the grant/or refusal of any visa). Accordingly, the Tribunal is satisfied that when the parties applied for the visa they genuinely intended to marry. Therefore, clause 300.215(a) is met.

10. The Tribunal is also satisfied from the review applicant’s oral evidence and documents provided to the Tribunal that at the time of application the parties intended to marry within the visa period. Therefore, they meet the requirement of clause 300.215(b).

    Do the parties genuinely intend to live together? (clause 300.216)

11. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’.

12. ‘Spouse’ is defined in s.5F of the Act and provides that a person is a 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 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’ circumstances with regard to the definition of spouse in legislation may assist in determining the parties’ intentions.

13. Having the relevant evidence in respect to the aspects outlined above, the Tribunal finds that at the time of application the parties did have a genuine intention to live together as spouses. Therefore, cl.300.216 is met.

    Do the parties continue to meet time of application requirements? (clause 300.221)

14. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in clauses 300.211, 300.214, 300.215 and 300.216. That is, that in this instance, the visa applicant intends to marry (relevantly) an Australian 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.

15. The Tribunal finds that the review applicant continues to be an Australian citizen at the time of decision and is satisfied that the visa applicant intends to marry her. Therefore, cl.300.211 continues to be met.

16. The Tribunal is satisfied that the parties have met and are known to each other personally. The Tribunal is satisfied that cl.300.214 continues to be met.

17. The Tribunal is satisfied by oral evidence at hearing that when the parties applied for the visa they genuinely intended to marry. The Tribunal is satisfied that they are aware of the requirement that they marry within the visa period and have demonstrated at hearing that they have an understanding in this regard.

18. The Tribunal is satisfied therefore that the parties continue to have a genuine intention to marry and that that marriage is intended to occur within the visa period and finds that cl.300.215 continues to be met.

19. The Tribunal finds that the parties continue to have a genuine intention to live together as spouses and finds therefore that clause 300.216 continues to be met.

20. Given the findings above, the Tribunal finds that the visa applicant continues to satisfy clause 300.211, 300.214, 300.215 and 300.216 at the time of its decision and accordingly, clause 300.221 is met.

21. Given all the findings combined, 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

22. 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.300.211 of Schedule 2 to the Regulations;

    · cl.300.214 of Schedule 2 to the Regulations;

    · cl.300.215 of Schedule 2 to the Regulations;

    · cl.300.216 of Schedule 2 to the Regulations; and,

    · cl.300.221 of Schedule 2 to the Regulations.