Nguyen (Migration)

[2019] AATA 5646

Nguyen (Migration) [2019] AATA 5646 (13 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Van Nguyen

VISA APPLICANT:  Mr Lat Nguyen

CASE NUMBER:  1700979

DIBP REFERENCE(S):  OSF2016/038301

MEMBER:Mary Urquhart

DATE:13 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 December 2019 at 2:13pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry – legal impediment to marriage – evidence of sponsor’s divorce from previous husband – certified copy of unsigned and unsealed divorce certificate – form of wedding in Vietnam not registered – plans for valid wedding in Australia – financial, household and social aspects of relationship – nature of parties’ commitment – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cll 300.215, 300.221A

Marriage Act 1961 (Cth), s 23B

Evidence Act 1995 (Cth), s 157

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 13 May 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.300.215 which 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. 

4. The review applicant appeared before the Tribunal on 8 October 2019 and 10 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Nhan This Tran, Mr Huu Tuan Le and from the applicant by telephone from Vietnam.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

7. Prior to the hearing the Tribunal  received further material in support of the application including:

   ·     New Notice of Intended Marriage

   ·     I Wedding party photo CD

   ·     CD’s and family photos and other photos  including “wedding” photos

   ·     1 holiday photo album in Thailand together

   ·     1 “wedding” invitation sample

   ·     “Wedding” receipts

   ·     14 Money Transfer Receipts of the review applicant to the visa applicant

   ·     1 letter of the review applicant to the visa applicant

   ·     17 Optus phone bills and 3 Lebara phone bills of the review applicant

   ·     6 letters of the visa applicant to the review applicant

   ·     6 Vietnam Post Service Invoices of the visa applicant to the review applicant

   ·     12 telephone bills of the visa applicant;

   ·     An eTicket of the review applicant to travel to Vietnam to visit the visa applicant

   ·     1 Joint eTicket for holiday of the parties together in Thailand

   ·     3 joint Jetstar and Vietnam Airline eTickets to travel together in Vietnam

   ·     7 Joint Invoices / Receipts for hotel in Vietnam

   ·     Miscellaneous: boarding passes

   ·     Photographs or the couple together and with others in Vietnam.

   ·     A Notice of Intention of Marriage signed by Mr Trung Doan

   ·     Evidence of phone bills showing contact made between the parties.

   ·     Two witness statements from Mr Pham Van Thanh (cousin) and Nguyen Thi Khen (brother in law of the applicant).

8. At the hearing on 8 October 2019 the Tribunal requested further documentation in relation to the death of the review applicant’s former husband Mr Giang Hoang Nguyen and evidence of the review applicant’s divorce from Mr Quang Huan Nguyen.

9. On 23 October 2019 the Tribunal received further documentation being

   ·a Death Certificate for Mr Giang Hoang Nguyen. It states his date of death as 5 December 1997;  

   ·a  Certified copy of an unsigned and unsealed Certificate of Divorce indicating that Mr Quang Huan Nguyen and Ms Thi Van Nguyen divorced on the second day of June 2004 with the divorce becoming absolute on the third day of July 2004 was submitted

   ·a further document, an uncertified copy of a search conducted at the Registry of Births Deaths and Marriages Victoria, dated 21 October 2019 showing no record of any marriage of Ms Thi Van Nguyen from 3 June 2004 to 23 September 2019. The document states the search precludes records in other states.

10. On 31 October 2019 the Tribunal received a translated copy of divorce documents in relation to the applicant from the People’s Court of Ninh Hoa Town Khanh Hoa Province, in Vietnam dated 31 October 2014 indicating a voluntary divorce between the applicant, Mr Nguyen Lat born 1984) and Ms Phan Thi Thuy Huong together with a certificate of marital status for Mr Nguyen Lat.

11. At the hearing the Tribunal asked if any original documents in relation to the sponsor’s Divorce Certificate were available. The reply was in the negative.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the review applicant and visa applicant genuinely intend to marry and live together in a spousal relationship.

14. The applicant Mr Lat Nguyen is a National of Vietnam born 12 June 1984. He is aged 36. He declares one previous marriage in 2011. He confirmed his divorce by agreement took place in October 2014. The evidence is that he works as a driver.

15. The review applicant (sponsor) Ms Thi Van Nguyen is an Australian citizen by grant. She was born on 2 March 1974 in Vietnam and is 45 years old. She declares 2 marriages one ending in the death of her husband, the second in divorce. She claims one de facto relationship which she said ceased in 2007. She is the mother of two daughters; one aged 22 is married. Her second daughter is aged 11. She gave evidence that she works for a curtain making company part time and is in receipt of single mother benefits from Centrelink. She rents a room in a house owned by her brother.

16. The Tribunal is required to be satisfied that there is no impediment to the marriage in Australian law (cl.300.221A). Whilst there is no judicial authority on the meaning of 'legal impediment to the marriage'. Consistent with the ordinary meaning, the approved form for a 'Declaration of no legal impediment to marriage' indicates that a legal impediment encompasses those circumstances of the type set out in s.23B of the Marriage Act 1961 which would render a marriage void such as where:

    ·One of the parties is already married to someone else - i.e. whether the parties are free to marry and any former marriages have been properly dissolved.

17. The Evidence Act 1995 - SECT 157 provides that evidence of a public document that is a judgment, act or other process of an Australian court or a foreign court, or that is a document lodged with an Australian court or a foreign court, may be adduced by producing a document that purports to be a copy of the public document and that:

    (a)  is proved to be an examined copy; or

    (b)  purports to be sealed with the seal of that court; or

    (c)  purports to be signed by a judge, magistrate, registrar or other proper officer of that court. 

18. Though the Tribunal is not bound by the Evidence Act 1995 the Tribunal has some serious concerns in relation to the document provided to demonstrate the sponsor’s divorce from her second husband Mr Quang Huan Nguyen. This is because though it is certified by a representative to be a true copy, the copy is unsigned and bears no seal. The Tribunal raised its concerns about the document at the hearing. In response it was submitted that courts no longer provide signed copies. The Tribunal was told that the applicant’s previous representative had certified the unsigned unsealed copy as a copy of the original. Asked how the copy was obtained the Tribunal was informed it came from the previous representative. On the basis of the evidence before it the Tribunal has concerns as to whether the sponsor’s marriage to Mr Quang Huan Nguyen has been properly dissolved and that as a result she is free to marry. In any event the Tribunal proceeded to consider other requirements for the visa.

    Does the visa applicant intend to marry an eligible person?

19. 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.

20. Based on the evidence the Tribunal finds that the sponsor is an Australian citizen. The Tribunal accepts that the parties intend to legally marry.  Accordingly, the Tribunal finds that the requirements of cl.300.211 are met.

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

21. 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.

22. The Tribunal accepts the evidence of both parties that they have known each other since June 2015 when the sponsor, a friend of the applicant’s sister, travelled to Vietnam to visit her family there. The evidence is that the parties met when the applicant came to pick up his sister’s gift. The applicant gave evidence that he flew in especially for this and that he spent some hours on the one day with the sponsor before she returned to Australia on 14 July 2015.

23. The evidence is that the parties remained in contact and developed a relationship via telephone.

24. The department’s movement records are consistent with the evidence that the sponsor was out of Australia at the time the parties claim to have met. The sponsor departed Australia on 29 June 2015 and returned on 15 July 2015.

25. The Tribunal is satisfied that cl.300.214 is met.

26. The sponsor gave evidence that her relationship with the applicant developed through communications over the next 5 months and that she returned to Vietnam on 25 December 2015. The sponsor claims marriage was discussed before her return to Vietnam and that the applicant proposed in November or December 2015 before she went to Vietnam.

27. The Tribunal accepts that the parties remained in phone contact but notes that at the time the sponsor claims the applicant proposed they had only spent a number of hours in each other’s company. Inconsistently the applicant claims that he proposed on 25 December 2015, the date the sponsor left Australia. The sponsor gave evidence that when she arrived in Vietnam in December 2015 it was for her wedding but first she needed to have some dental work. The parties decided to get married on 3 January 2016. The marriage was not registered. It was described by the sponsor as an event somewhere between an engagement and a marriage. The Tribunal has serious concerns as to the ability of the parties to make a lifetime spousal commitment to marry each other in all the circumstances revealed through the evidence.

28. The evidence is that the parties' wedding was held at the house of the applicant's parents in Khanh Hoa Province. 

29. Inconsistent evidence was given in relation to aspects of the wedding.

30. The sponsor gave evidence that she did not have time to register the marriage on any of her trips to Vietnam as her trips to Vietnam were always short. She said the paper work takes a long time so she and the applicant promised each other they would organize a wedding when he comes to Australia.

31. Asked who organized the wedding on 3 January 2016 the sponsor replied that her husband’s “side” did this. She said they organized restaurants and a ceremony in the restaurant. Asked what were the traditional elements of the wedding she said “they had a big tent organized in front of the house”. She replied vaguely said that she and her husband were in “the same town” and “the same region”. She said like many other weddings his side came to see her side in front of the ancestral platform. Asked why her older daughter did not attend she said her older daughter was busy with work and study. Asked if her father attended she replied he did not as he was unwell having physiotherapy following a stroke. Asked why the wedding was not held at her house the sponsor replied it was because they were older, mature and had been married before. The Tribunal does not accept the explanations for breaking with tradition as satisfactory.

32. The applicant gave evidence that he and his wife did not register their marriage as his wife was always short of time. He said the procedure was long and complicated. Asked how the Tribunal could be sure the parties would register a marriage in Australia the applicant replied because he had “put in an application to do so”. The Tribunal finds the applicant’s response unconvincing.

33. The Tribunal has serious concerns regarding the very brief contact the parties had before committing to a spousal relationship; it has serious concerns that the ceremony was not held at the sponsor’s home and that her daughters, though said to be either unwell or busy, did not attend. There is no independent evidence regarding her father’s non-attendance for health reasons. The Tribunal is not satisfied that the parties have held an engagement ceremony according to custom.

34. The evidence is that the parties travelled to Ho Chi Minh City after the wedding. The sponsor departed Vietnam for Australia on 10 January 2016. At the time of the delegate’s decision on 9 December 2016 Departmental movement records indicated that the sponsor had not departed Australia since returning on 11 January 2016 and the applicant had not travelled to Australia.

35. The sponsor next departed Australia on 5 July 2017 and returned on 18 July 2017. She gave evidence at the hearing that she travelled to Vietnam in February 2019 and stayed 10 days. Asked what family she has in Vietnam she replied that her parents live there.

    Do the parties genuinely intend to marry?

36. 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.

37. 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. 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.

38. The Tribunal has considered all of the circumstances of the relationship, including the following matters, in arriving at its decision concerning the intention of the review applicant and visa applicant, at the time of application and the time of decision, to live together as spouses. The Tribunal notes it is not appropriate to consider whether the parties' are spouses at the time of application or time of decision, however considers an investigation of their intentions with regard to the definition of spouse in the legislation may assist in determining their aspirations.

39. The Tribunal questioned the parties carefully in relation to their marriage plans in Australia.

40. The sponsor gave vague and evidence in response to questioning that the parties plan to marry next year when the applicant comes. She said they will then “sign the papers”. Asked if she had a date she replied 4 April 2020. Asked where this would take place she replied vaguely “in Victoria”. Asked if there would be any celebration the sponsor said she prefers to have a family party at a friend’s home, “a big BBQ”.

41. Asked which friend she said it would be at her brother’s house. She said they would hire a tent. Asked where she would hire the tent she replied vaguely “like other parties” her brother would use his car port. She said he normally organizes parties there. She said she would rent some tables and that her brother already had some tables. She said she would organize people to cook and to bring food. Asked if she had discussed these plans with the applicant the sponsor replied that she had. She said he wanted something comfortable and easy for her. She said there would be 60-70 guests at some 6-7 tables. She said the guests would be close friends. Asked what family the applicant has in Australia the sponsor replied that he has 2 sisters and 1 brother all married.

42. The Tribunal questioned the applicant in relation to marriage plans. He said he and his sponsor have agreed to organize a party, “not big”. Asked how many guests he replied “not too big”. Asked if they had talked about the number of people they would invite he replied that they “are old” and have not talked about it. Asked what sort of party was planned he said once he arrives they will make decisions. He said his wife would pay for the party. The Tribunal is unable to be satisfied that the parties have discussed wedding plans in any meaningful manner; the applicant’s evidence is an indication that he knows nothing of the intended venue or arrangements. The Tribunal is not satisfied that the parties have a genuine intention to marry.

    The financial aspects of the relationship

43. The Tribunal had before it documentary evidence regarding the financial aspects of the relationship including statements and funds transfer receipts. The Tribunal has had regard to the documentation. Asked if the applicant discussed future financial matters with the sponsor he replied that they respect each other sand that they have individual finances. Asked if he knew what the sponsor was earning he said $1300-$1400. He said she pays $100 a month in rent. He said she sends him small amounts of pocket money.

    The nature of the household

44. The Tribunal had before it documentary evidence relating to the nature of the household including, but not limited to photographs and hotel receipts. The Tribunal notes the parties have spent less than 10 nights together in hotels though they claim at other times to have stayed together on the sponsor’s short trips in the homes of their respective parents.

45. The Tribunal acknowledges that the parties are living in different countries and have had limited time together. However the Tribunal asked the applicant if he and the sponsor had ever set up home together. He replied they plan to when he arrives in Australia. Asked where they plan to live he replied off point that at the moment the sponsor lives with her brother. Asked where they plan to live together he said that his “wife knows” and that they can decide the next step after he comes.

    The social aspects of the relationship

46. The Tribunal has some documentary evidence in relation to the social aspects of the relationship including, but not limited to photographs. Further, the Tribunal has duly considered the oral evidence of the sponsor, the applicant and the two witnesses. The Tribunal notes the sponsor’s eldest daughter met the applicant for the first time in February 2019. 

47. Asked at the hearing about the 888 Declarations lodged with the application the representative withdrew them indicating they had been wrongly included and were in relation to a different application. The representative explained the two witnesses were in attendance for this reason.

1. The witness Mr. Huu Tuan Le is married to one of the applicant's sisters who live in Australia. He gave evidence in relation to the nature of the relationship.  He said that he attended the wedding of the parties in Vietnam. Asked to describe the wedding he replied vaguely there was an "ancestral table and decorations". Asked why the wedding took place at the home of the groom not the bride, he replied that the distance to her home was far in the country; as well he said the parties were "quite old". The Tribunal pointed out that the groom was 36 years old and looked it in photographs. The witness responded that the applicant looks older than he does in photos. The witness said the sponsor's mum and uncles and aunties attended the wedding. The evidence was not detailed. Asked why the parties did not register their marriage in Vietnam he replied it was because the system in Vietnam is corrupt; he said the people involved "want bribes". 

2. Ms. Nhan This Tran, a witness, said she met the sponsor a long time ago and that they are friends and not related. When asked if she had met the applicant Ms. Tran replied that she had not. She had not ever spoken to him. She has however seen a photo of him she said. She gave evidence that the sponsor had a husband in Vietnam. Asked if she knew if another wedding was planned she replied "yes, she had heard that". The Tribunal gives little weight to her evidence in relation to the genuine nature of the relationship between the parties.

3. The Tribunal finds that there is some evidence that the parties' represent themselves to other people as being engaged to each other, there is some evidence of family, friends and acquaintances recognizing the parties' as being engaged to each other, and there is some evidence that the parties' have undertaken joint social activities. However the Tribunal finds this this evidence alone is not persuasive of a genuine intention to marry.

   The nature of the parties’ commitment to each other

4. The Tribunal had before it documentary evidence regarding the nature of the parties commitment to each other including, telephone records, letters, cards, Notices of Intended Marriage, photographs, hotel receipts, and other miscellaneous matters. As well the Tribunal has considered the oral evidence of the applicant and sponsor with respect to the nature of their commitment to each other. Asked about commitment the applicant gave no satisfactory evidence that he sees the relationship as long term. He said he likes the sponsor’s smile and is happy when they talk. The Tribunal has considered the evidence of some communications between the parties the Tribunal also notes the applicant’s evidence that he never writes letters. The Tribunal notes the variety of numbers called in the applicant’s phone records. Asked about this he said he calls his sister in Australia sometimes.

5. The sponsor gave evidence that even though she is older than the applicant their love was good. She said he jokes about the ages. She said she would like him to come so her daughters could have a father at their birthdays.

6. Overall the Tribunal is unable to be satisfied that at the time of application the parties were committed to each other and had a genuine intention to marry and live together as spouses.

7. After careful consideration of all the evidence the Tribunal finds that at the time of application the parties did not have a genuine intention to marry and do not satisfy the requirements of cl.300.215 (a).

   Do the parties' continue to meet time of application requirements?

8. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, the 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.

9. Having regard to the matters outlined above, the Tribunal finds that at the time of application the parties' did not genuinely intend to marry or to live together as spouses, and therefore the requirements of cl.300.215 and cl.300.216 are not satisfied by the visa applicant. It follows that the visa applicant does not satisfy the requirements of cl.300.221.

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

    DECISION

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

    Mary Urquhart
    Member