Nguyen (Migration)

[2021] AATA 4660

Nguyen (Migration) [2021] AATA 4660 (22 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Lam Nguyen

VISA APPLICANTS:  Mr Van Dung Truong
Mr Van Vu Thien Truong

CASE NUMBER:  1806075

DIBP REFERENCE(S):  BCC2017/1349559

MEMBER:David Barker

DATE:22 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named 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;

·cl 300.221 of Schedule 2 to the Regulations;

·cl 300.221A of Schedule 2 to the Regulations.

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

·cl 300.312 of Schedule 2 to the Regulations.

Statement made on 22 September 2021 at 10:37am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – intention to marry – met in person and known to each other personally – genuine intention to marry – genuine intention to live together as spouses – development of relationship – financial aspects – nature of the household – social aspects – nature of the commitment – impediment to marriage under Australia law – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2, cls 300.211, 300.214, 300.215, 300.216, 300.221, 300.221A, 300.312

CASES
In the Marriage of Pavey (1976) 10 ALR 259
Re MILGEA and Dhillon [1990] FCA 144

statement of decision and reasons

application for review

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s 65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 11 April 2017. 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.

3. The delegate refused to grant the visas on 10 January 2018 on the basis that the first named visa applicant did not satisfy cl 300.215 or cl 300.216 of Schedule 2 to the Regulations because they were not satisfied the parties had a genuine intention to marry and live together as spouses.

4. The review applicant appeared before the Tribunal on 26 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal took evidence from the visa applicant’s sister, Ms Thi Kim Thanh Truong, and the review applicant’s daughter, Ms Jennifer Nguyen, by telephone, at a further hearing on 17 June 2021. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

7. The visa applicant (hereafter referred to as the applicant) is a national of Vietnam and is currently 54 years old. His mother, father, brother and a sister reside in Vietnam; and he has a sister who is a permanent resident in Australia. He was previously partnered in a de facto relationship from 1992 to 2012. He has two children from that union, a daughter, aged 28 years, and son, aged 20 years, with the latter linked to the application as a dependent member of his family unit. The applicant then, in May 2014, married a different woman, with that relationship ceasing in July 2016.

8. The review applicant (hereafter referred to as the sponsor) was born in Vietnam and is currently 51 years old. She was granted permanent residency through a humanitarian visa and was then granted Australian citizenship in 1990. She was not nominated or sponsored to Australia. She resides in Australia and works as a tailor. She has not been married to any other person but was in a de facto relationship with another person from 1991 to 2002. There are two children from that union, a son aged 29 years and a daughter aged 19 years.

9. In written statements provided with the visa applications, the parties claim that they first interacted with each other through Facebook in January 2015 upon the suggestion of the applicant’s younger sister who resides in Australia. They first met in person in March 2015 at Da Nang Airport, during a trip the sponsor made to Vietnam with her daughter. The parties spent further time with each other during a further trip the sponsor made to Vietnam in February 2016 and they report that she accepted the applicant’s proposal of marriage in July 2016, following his divorce from his ex-spouse. During a subsequent trip the sponsor made to Vietnam, the parties held an engagement ceremony at the applicant’s home in Da Nang on 1 January 2017.

10. The decision record, a copy of which was provided with the review application, indicates that the delegate who considered the application was not satisfied the evidence provided in support of the applicant demonstrated the parties had a genuine intention to marry.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the parties genuinely intend to marry, live together as spouses and meet the other criteria for the grant of the visa.

    Does the visa applicant intend to marry an eligible person?

12. 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.

13. The review applicant became an Australian citizen in 1990. The parties provided information, including a letter from Huyen Lam, civil marriage celebrant, dated 4 March 2017, stating that he had received a Notice of Intended Marriage to indicate that at the time of the application, the parties intended to marry in Fairfield, NSW. Accordingly, the requirements of cl 300.211 are met.

    Have the applicants met in person and are they known to each other personally?

14. 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.

15. The Tribunal accepts the parties’ claim that they first met each other face-to-face at Da Nang Airport in Vietnam in March 2015 and since then have spent time with each other during trips the sponsor has made to Vietnam in 2016, 2017, 2018, 2019 and early 2020. The Tribunal finds that at the time of application, in April 2017, the parties had met and were known to each other personally.

16. Therefore, at the time of application, the requirements of cl 300.214 were met

    Do the parties genuinely intend to marry?

17. 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.

18. The Tribunal notes a Notice of Intended Marriage was lodged with NSW Births, Deaths and Marriages on 5 February 2018, which has an expiry date of 4 August 2019, and which states that the parties plan a marriage ceremony on 19 March 2019.

19. The Tribunal accepts the sponsor’s evidence that a further marriage date will be set if and when it is apparent the applicant is granted the Subclass 300 visa and his arrival date in Australia can be determined. She said that a date for their marriage would be set as soon as practical and that arrangements for the wedding will depend on financial considerations but will consist of a celebration involving family and friends.

20. 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 was within the anticipated visa period as required by cl 300.215(b) and the parties planned to marry each other in Australia as soon as possible. Therefore, the requirements of cl 300.215 are met. The Tribunal accepts that the parties continue to genuinely intend to be married and, although no set arrangements have been made, the Tribunal finds that it is intended that the marriage is to take place within the visa period.

    Do the parties genuinely intend to live together?

21. 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.

22. 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.

    Development of relationship

23. 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.

24. The delegate expressed some concern that the parties’ relationship overlapped with the applicant’s previous marriage, as the parties claim they met and commenced a relationship from March 2015 and the applicant did not divorce his previous spouse until July 2016. The Tribunal understands this concern and reviewed submissions provided by the applicant with respect to this factor.

25. In a relationship statement prepared in March 2017, the applicant indicates his first major relationship, from which his two children were born, stemmed from the period he and his first partner lived and worked in Russia. He indicates that this relationship broke down after their return to Vietnam in 2011. The Tribunal accepts this claim is plausible. The applicant’s explanation for the breakdown of his subsequent marriage, after only three months, in the view of the Tribunal provides some explanation for why he was required to wait at least a year before formalising his divorce, which he did in July 2016, a little over two years after the marriage.

26. The parties are quite open as to their being put in touch with each other, by the Australian‑based younger sister of the applicant, as two mature-age people who may be compatible and build a future together. To this extent, there are some elements of an arranged relationship, but not in a way that is of inherent concern, as this way of meeting a prospective partner is not that unusual. To some extent, this is what a multitude of people do through dating applications on the internet, or through engaging the services of an introduction agency. The Tribunal is aware that an introduction such as the one described above can also reflect a contrived arrangement to facilitate a migration pathway to Australia, but would not conclude that was the case unless there was other probative evidence upon which to make such a finding.

27. Given the time that has now passed since the parties made an overt commitment to become a couple and marry, the Tribunal, in the course of progressing the review application, invited the parties to provide evidence of a marriage registration. The parties’ evidence at hearing is that they have not taken that further step in their relationship for two main reasons. The applicant explained that they wish to marry in Australia as they have a clear intention to reside together in Australia, not Vietnam. The Tribunal accepts that this is a choice open to the parties and notes that a visa applicant having an overt wish for a particular migration outcome is not in itself problematic, or indicative that the relationship is inherently not genuine.[1] The Tribunal was not however persuaded that this explanation provided a clear rationale for why the applicant and sponsor had not elected to progress their relationship to a fully married state.

    [1] Re MILGEA and Dhillon [1990] FCA 144

28. In my view, the sponsor provided a more reasonable explanation for the length of time the parties have remained engaged, without taking the step to register their marriage. She gave evidence at hearing that this was because it is a requirement in Vietnam that she be resident there for a period of between three and six months prior to the marriage registration and that this was not a viable option due to her need to provide care and support to her children in Australia. She explained that she has raised the children in a single parent family and that her daughter continues to rely on her financial support whilst she completes her tertiary education.

29. On considering the cumulative evidence before it, the Tribunal is satisfied the parties have provided a plausible account of the inception and development of their relationship. The Tribunal is satisfied that this factor provides support to the contention that they genuinely intend to live together as spouses.

    Financial aspects

30. 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.

31. As the parties live in separate countries, there is little information which would indicate the parties have shared assets, are pooling their financial resources towards major financial commitments, have any joint liabilities or are sharing their day-to-day household expenses to any significant degree. The Tribunal accepts the parties are essentially independent financially, with both in normal times earning a modest income in the circumstances of the relative economies they live and work in. The Tribunal accepts that the sponsor has sent some money to the applicant during the current Covid-19 pandemic to assist with his and his son’s daily expenses.

32. As the parties have lived in different countries throughout their relationship, the Tribunal is satisfied they have not merged their financial affairs to any extent. As a consequence, the Tribunal gives no weight to this aspect of the relationship.

    Nature of the household

33. 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.

34. The applicant and sponsor both displayed insight into the circumstances of their partner’s children. However, this does not equate to joint responsibility for care and support of the children who are yet to be independent of their respective parent.

35. On the basis of oral evidence, which is consistent with Department movement records, the Tribunal accepts that the sponsor travelled to Vietnam on an annual or more frequent basis, and during these trips spent time with the applicant. The Tribunal accepts that the evidence of temporary registration and travel records demonstrates the parties cohabited during periods in which the applicant was in Vietnam during these trips. The Tribunal notes that the most recent trip took place at the beginning of 2020. The Tribunal acknowledges that the lack of time spent in each other’s company since then is reflective of the disruption experienced by multitudes of people worldwide as a consequence of the current pandemic.

36. The parties have not established a shared household and the context of their 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.

37. The Tribunal is satisfied the sponsor has proposed a viable arrangement upon which she, the visa applicant and their dependent children could share a household in Australia after marriage should the visas be granted.

    Social aspects

38. The Tribunal has considered the social aspects of the relationship – including whether the parties represent themselves to other people as being married to each other; 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.

39. The Tribunal is satisfied that photographs provided with the visa and review applications show the parties in the company of family or friends during social outings and social occasions, including their engagement ceremony in 2017.

40. The Tribunal has reviewed the witness support declarations provided in support of the parties and is satisfied they are credible and provide an indication the relationship of the parties is regarded as authentic and continuing by the declarants. The oral evidence provided at hearing by the second named applicant, the daughter of the sponsor and the sister of the applicant was consistent with evidence provided by other declarants in relation to the nature of the parties’ relationship. The Tribunal was satisfied the evidence provided by the witnesses was credible and can be relied on.

41. When considered as a whole, the Tribunal is satisfied positive weight can be given to this aspect of the parties’ relationship as an indicator of their intention to live together as spouses.

    Nature of the commitment

42. The Tribunal has considered the nature of 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.

43. The parties’ relationship developed through a suggested social media connection. The Tribunal accepts they met for the first time face-to-face in March 2015. The parties have provided translated copies of extensive communication by text and electronic means. The Tribunal is satisfied the nature of this communication demonstrates a degree of companionship within the couple’s relationship.

44. The sponsor provided plausible reasons as to why she was open to forming an attachment to a man within a short time of their initial meeting. She indicated that she felt comfortable with his personality, in that they were both of a quiet nature and that they were both in similar situations, as mature-age single parents.

45. The parties displayed an understanding of each other’s circumstances and those of their children. The sponsor was able to provide clear detail as to how the applicant’s financial circumstances have been impacted by the current pandemic and displayed congruent responses when discussing this issue with the Tribunal. On the basis of the oral evidence provided at hearing, the Tribunal is satisfied that the parties derive emotional support from the relationship.

46. The parties have set out their plans for their future together should the application be successful. They have provided details of where they would live, their wish to support their children and the sort of work the applicant would seek to obtain in Australia.

1. The Tribunal is satisfied the parties are sincere in their wish to marry and establish a household together in Australia. The Tribunal is satisfied that the parties are in a relationship that is appropriately regarded as longstanding, given their commitment to a shared life together was made over six years ago.

2. The parties’ plans for their future together indicate they consider their relationship as a long‑term one.

   Assessment of intention to live as spouses

3. The Tribunal is aware of the principles established by the Family Court of Australia in the Marriage of Pavey (1976) 10 ALR 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 the Marriage of 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.

4. In Re MILGEA and Dhillon [1990] FCA 144, the Federal Court stated:

   people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as ‘community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.

5. Having had regard to the considerations set out in reg 1.15A(3) for spousal relationships, the Tribunal finds that at the time of application, the parties did have a genuine intention to live together as spouses, and therefore cl 300.216 is met. Whilst the financial and household aspects of their relationship do not provide clear indicators of their having a commitment to a shared life together as spouses, any concern arising from these factors is, in the Tribunal’s view, resolved by the weight given to the social aspects of the relationship and the nature of their commitment to a relationship with each other.

6. 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.

   Do the parties continue to meet time of application requirements?

7. 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. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand 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.

8. Having considered the totality of the evidence, the Tribunal is satisfied that the applicant continues to intend to marry the sponsor who is a citizen of Australia and the parties continue to know each other personally, therefore the visa applicant continues to meet cls 300.211 and 200.214. The Tribunal finds that the applicant continues to satisfy cl 300.215. On the basis of all of the evidence, the Tribunal is satisfied that the applicant and sponsor genuinely intend to live together as spouses at the time of decision, in that they intend to be validly married, with a mutual commitment to a shared life together, and that they intend to form a relationship which is genuine and continuing. Therefore, the visa applicant continues to satisfy cl 300.216.

9. Having considered the available evidence, the Tribunal is satisfied that the applicant continues to satisfy the criteria in cls 300.211, 300.214, 300.215 and 300.216. Accordingly, the Tribunal finds that cl 300.221 is met.

   Is there any impediment to the marriage?

10. Clause 300.221A requires that at the time of decision, there is no impediment to the marriage in Australian law. If the applicant or prospective spouse is under 18, the Minister must be satisfied that they will turn 18 before the end of the period within which the intended marriage is to take place, or have an Australian court order issued under s 12 of the Marriage Act authorising the parties to marry. In the latter case, the Minister must be satisfied the marriage will take place: cl 300.221B.

11. The Tribunal finds both the applicant and sponsor are over the age of 18 years. The Tribunal is satisfied the applicant has divorced his previous spouse.

12. As there is not an impediment to the proposed marriage under Australian law, cl 300.221A is satisfied.

13. 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.

    The second named visa applicant

14. The Tribunal is satisfied on the basis of the information in the visa application form that the sponsorship referred to in cl 300.213 in respect of the person who satisfies the primary criteria includes sponsorship of the second named visa applicant, Van Vu Thien Truong. Accordingly, the Tribunal finds that the second named visa applicant meets cl 300.312.

15. Given the findings in relation to the visa applicant, the application of the second named visa applicant is remitted so that he may now be reconsidered against the secondary criteria.

    decision

16. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named 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;

    ·cl 300.221 of Schedule 2 to the Regulations;

    ·cl 300.221A of Schedule 2 to the Regulations.

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

    ·cl 300.312 of Schedule 2 to the Regulations.

    David Barker
    Member