Nguyen (Migration)

[2019] AATA 5710

Nguyen (Migration) [2019] AATA 5710 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Minh Tung NGUYEN

VISA APPLICANTS:  Ms Thi My Phuong NGO
Mr Huy Phat PHAM

CASE NUMBER:  1703937

DIBP REFERENCE(S):  OSF2016/039500

MEMBER:Mireya Hyland

DATE:3 December 2019

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:

·all of cl.300.21 of Schedule 2 to the Regulations; and

·cl.300.221 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:

·all of cl.300.31 of Schedule 2 to the Regulations

Statement made on 03 December 2019 at 4:58pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – time spent in Vietnam together – communications records and letters – financial assistance provided – credible witnesses – member of family unit – dependent child – wholly or substantially reliant on mother for financial support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12, 1.15A; Schedule 2, cls 300.211, 300.212A, 300.212, 300.213, 300.214, 300.215, 300.216, 300.221, 300.311, 300.312, 300.321

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, Thi My Phuong Ngo and her son, Huy Phat Pham, Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. Ms Ngo and Mr Pham applied for the visas on 29 February 2016 on the basis of Ms Ngo’s relationship with her fiancé, Minh Tung Nguyen. At the time the visa application was lodged, Class TO contained 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. The member of the family unit who is an applicant for the visa needs to satisfy only the secondary criteria. The delegate refused to grant the visas on 24 February 2017 on the basis that Ms Ngo did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the couple had a genuine intention to live together as spouses. Mr Nguyen provided that decision to the Tribunal with his review application.

3. Mr Nguyen appeared before the Tribunal, differently constituted, on 11 September 2018. On 10 April 2019, this matter was reconstituted because that member became unavailable. On 3 May 2019, Mr Nguyen appeared before the Tribunal as currently constituted to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ngo by telephone. Two of Mr Nguyen’s sisters, including Thi My Linh Nguyen, also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The couple were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

4. The issue in the present case is whether Ms Ngo and Mr Nguyen genuinely intend to live together as spouses once they are married and whether Mr Pham is a member of Ms Ngo’s family unit. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Clause 300.211 requires that at the time of application Ms Ngo intends to marry, among other options, a person who is an Australian citizen. The Tribunal finds that Mr Nguyen became an Australian citizen on 26 August 1994. Accordingly, the requirements of cl.300.211 are met. Mr Nguyen is Ms Ngo’s prospective spouse as defined in cl.300.111.

6. Clause 300.212A requires that the visa applicant has turned 18. Ms Ngo was born in 1975 and is 44 years old. On the evidence before it the Tribunal finds that cl.300.212A is met.

7. Clause 300.212 prohibits the prospective spouse from being a sponsor in certain circumstances if the prospective spouse is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application. Mr Nguyen is not prohibited from being a sponsor by cl.300.212.

8. Clause 300.213 requires that at the time of application Ms Ngo is sponsored by Mr Nguyen and Mr Nguyen has turned 18. The Tribunal has sighted the 40SP Sponsorship for a Partner to Migrate to Australia Form in which Mr Nguyen sponsored Ms Ngo for the visa. Mr Nguyen was born in 1976 and is 43 years old. Therefore, cl.300.213 is satisfied.

9. 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. The couple claim that in February 2015 while visiting Vietnam, Mr Nguyen and his foster sister, Ms Nguyen Kim Hoa (also known to Ms Ngo as Ms Chanh), went to the Temple in Soc Trang where they met Ms Ngo. Ms Ngo and Mr Nguyen then spent time together before he returned to Australia on 13 February 2015 and during a subsequent trip to Vietnam in August 2015. The Tribunal is not entirely convinced that the couple met in the way claimed, but it is satisfied that they have met in person since turning 18 and were known to each other personally at the time of application. Therefore, at the time of application, the requirements of cl.300.214 were met.

10. 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. The couple claim they met in February 2015 and in December 2015 they held an engagement party at Ms Ngo’s house in Soc Trang Province. Evidence set out in the delegate’s decision surrounding Ms Ngo’s brother’s acquaintance with Ms Nguyen and her husband, the timing surrounding trips to Vietnam by Ms Nguyen, and inconsistent testimony given to the delegate brings into doubt for the Tribunal that the couple’s engagement came about in the way claimed. Mr Nguyen lives in Ms Nguyen’s house and is single, Ms Ngo had recently divorced her husband and become the single mother of a son she was still educating. The Tribunal suspects there was some degree of arrangement for the match between the families that they have inexplicably chosen to hide. That does not change the fact that at the time of application the parties had a genuine intention to marry on 2 February 2017, thereby satisfying the requirements of cl.300.215(a). The proposed date for the marriage would have been within the visa period as required by cl.300.215(b) had the visa been granted. Therefore, the requirements of cl.300.215 are met.

    Do Ms Ngo and Mr Nguyen Genuinely Intend to Live Together as Spouses

11. 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 the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is 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). This includes evidence about the future financial and social aspects of the relationship, and the nature of their future household and commitment to each other. 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 the legislation may assist in determining the parties’ aspirations.

12. 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. The Tribunal has considered all of the extensive evidence provided by Ms Ngo and Mr Nguyen, including their comprehensive statements, statements of friends and family, the documents showing that Mr Nguyen has gone to Vietnam on a number of occasions and stayed with Ms Ngo and her family, the large number of photographs, the communications records and letters, and evidence of Mr Nguyen’s financial assistance to Ms Ngo and her son. The Tribunal found the couple to be generally credible witnesses. It accepts their evidence about Ms Ngo’s future employment and the other financial aspects of their intended marriage. It also accepts the consistent evidence about the intended nature of their household, like who will cook or clean, where they will live, Mr Pham’s education, and other relevant matters. The Tribunal accepts that Mr Nguyen’s family and friends know of Ms Ngo and she will be brought into that social network once they marry. It also accepts that Ms Ngo and Mr Nguyen have shown support for each other during the unfortunately lengthy visa process, and that Mr Nguyen has supported, and will continue to support, Ms Ngo with her assistance to her son with his education. However it may have started, the Tribunal has put considerable weight on the length of their relationship to date. It finds the fact that they have maintained their relationship for five years to have overcome some credibility concerns the Tribunal had and significantly strengthened the application.

13. The Tribunal finds that the evidence strongly supports that the future financial aspects of the relationship, nature of their household, social aspects of their relationship, and their future commitment to each other demonstrate that once they marry Ms Ngo and Mr Nguyen will maintain a genuine married relationship: r.1.15A(3), (4). The Tribunal finds that they have the intention that when they are married they will have a mutual commitment to a shared life together to the exclusion of all others, will be in a genuine and continuing relationship, and will live together with Mr Pham. They, therefore, intend to meet all the requirements in s.5F(2)(b), (c), and (d) once they are married and meet s.5F(2)(a) of the Act. Given these findings the Tribunal is satisfied that at the time of application the requirements in cl.300.216 were met. Although some of the matters on which it has relied occurred after that date, it finds they are nonetheless indicative of the couple’s intentions on 29 February 2016.

    Does Ms Ngo Continue to Meet the Time of Application Requirements

14. Clause 300.221 requires that at the time of decision, Ms Ngo continues to satisfy the criteria in cls.300.211, 300.214, 300.215 and 300.216. The Tribunal finds that she intends to marry Mr Nguyen, who is still an Australian citizen; they have met and are known to each other personally; and they have provided documentation and now genuinely intend to marry as soon as possible after the visa is granted and Ms Ngo arrives in Australia, which will be during the visa period. On the basis of the evidence referred to above, the Tribunal also finds that at the time of this decision Ms Ngo and Mr Nguyen continue to genuinely intend to live together as spouses once they are married. Accordingly, cl.300.221 is met.

    Mr Huy Phat Pham

15. Clause 300.311 requires that at the time of application Mr Pham was a member of the family unit of, and made a combined application with, the person who satisfies the primary criteria in cls.300.211 to 300.212 and 300.214 to 300.216, being Ms Ngo. Mr Pham made a combined application with Ms Ngo.

16. Section 5(1) of the Act states that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides that ‘member of the family unit’ has the meaning set out in r.1.12. Pursuant to r.1.12(1)(b) Mr Pham is a ‘member of the family unit’ of Ms Ngo if he is her dependent child. Regulation 1.03 states ‘dependent child’ of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who has not turned 18. There is evidence that Mr Pham is not engaged and does not have a spouse or de facto partner. The Tribunal has before it evidence that Mr Pham is Ms Ngo’s child and he was born on 13 August 1999. Therefore, on 29 February 2016 he was 16 years old and Ms Ngo’s dependent child. At the time of application Mr Pham was a member of Ms Ngo’s family unit and met cl.300.311.

17. Clause 300.312 requires that the sponsorship referred to in cl.300.213 includes sponsorship of Mr Pham. The 40SP Sponsorship for a Partner to Migrate to Australia Form in which Mr Nguyen has sponsored Ms Ngo for the visa includes Mr Pham. Therefore, cl.300.312 is met.

18. Clause 300.321 requires that at the time of decision Mr Pham continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 300 visa. On 13 August 2017 Mr Pham turned 18. Where, as in Mr Pham’s case, the child of a person has turned 18, r.1.03 defines ‘dependent child’ as a child who is dependent on Ms Ngo or incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. There is no indication that Mr Pham has the relevant incapacity. Regulation 1.03 states that ‘dependent’ has the meaning given by regulation 1.05A. Mr Pham is dependent on Ms Ngo if at the time of this decision he is, and was for a substantial period immediately before that time, wholly or substantially reliant on Ms Ngo for financial support to meet his basic needs for food, clothing and shelter, and his reliance on Ms Ngo is greater than his reliance on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter.

19. Ms Ngo and Mr Nguyen provided the Tribunal with extensive statements about Ms Ngo’s assistance to her son. Mr Pham has lived in a boarding house and attended university supported by his mother since he turned 18. He is now 20 years old. According to their submissions, he receives approximately VND5,000,000 per month from his mother. VND1,400,000 is paid in rent (including water and electricity), VND2,200,000 goes on food and groceries, and VND300,000 goes on clothing. The rest is spent on things like petrol, school books, phone, and transport with a little left over for pocket money. Mr Nguyen sends about AUD200 to add to Ms Ngo’s wages to help Ms Ngo meet her costs, giving her an income of around VND11,200,000. Mr Pham does not work and his father does not contribute to his living costs. Ms Ngo covers all Mr Pham’s accommodation, food, and clothing costs. Sometimes she brings him clothing and food to help Mr Pham save his monthly allowance. This can cost an extra VND2,000,000 per month.

20. The Tribunal finds that at the time of this decision Mr Pham is, and has been since he turned 18 years old, wholly or substantially reliant on Ms Ngo for financial support to meet his basic needs for food, clothing and shelter. He has no reliance on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter. Mr Pham is dependent on Ms Ngo and, therefore, is her dependent child. He continues to be a member of Ms Ngo’s family unit. Consequently, if Ms Ngo satisfies the remainder of the primary criteria and becomes the holder of a Subclass 300 visa, Mr Pham will meet the requirements for cl.300.321 of the Regulations.

    DECISION

21. 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.

22. 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:

    · all of cl.300.21 of Schedule 2 to the Regulations; and

    · cl.300.221 of Schedule 2 to the Regulations.

23. 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:

    · all of cl.300.31 of Schedule 2 to the Regulations.

    Mireya Hyland
    Member