NGUYEN (Migration)

[2019] AATA 3732

NGUYEN (Migration) [2019] AATA 3732 (6 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Huong NGUYEN

VISA APPLICANTS:  Ms Thi Huong PHAN
Ms Ngoc Anh NGUYEN
Mr Hai Dang NGUYEN

CASE NUMBER:  1719483

DIBP REFERENCE(S):  2016039745 OSF2016/039745

MEMBER:Mireya Hyland

DATE:6 August 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 the clauses in cl.300.21 of Schedule 2 to the Regulations

·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 and third named visa applicants meet the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.311 of Schedule 2 to the Regulations

Statement made on 06 August 2019 at 2:46pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry – genuine intention to live together as spouses – discussions of plans for the future – good knowledge of each other’s children – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15A; Schedule 2, cls 300.211, 300.212A, 300.212, 300.213, 300.214, 300.215, 309.216, 300.221, 300.311, 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 Huong Phan and her children, Ngoc Anh and Hai Dang Nguyen, Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. Ms Phan and her children applied for the visas on 3 November 2016. 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 delegate refused to grant the visas on 4 August 2017 on the basis that Ms Phan did not satisfy cl.300.215 and cl.300.216 because he was not satisfied that she and her sponsor, Van Huong Nguyen, have a genuine intention to marry or live together as spouses. That decision was provided to the Tribunal with Mr Nguyen’s review application.

3. Mr Nguyen applied to the Tribunal on 26 August 2017. He appeared before the Tribunal on 31 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Phan and her sister, Thi Thu Ha Phan. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The parties 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 Phan and Mr Nguyen genuinely intend to live together as spouses once they marry. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Ms Phan, born 21 June 1972, from Hai Phong city, Vietnam was married in 1998 to Mr Dinh Hien Nguyen. There are three children from the relationship, two daughters, Thi Huong Giang (born 14 August 1992) and Ngoc Anh (born 4 June 2006), and one son, Hai Dang (born 7 September 2013). Ms Phan divorced Dinh Hien Nguyen on 12 March 2015. Thi Huong Giang was granted a spouse visa and lives in Australia. According to the divorce settlement Ms Phan has sole custody of Ngoc Anh and Hai Dang, who are included in this application. Ms Phan gets income from rental property and a retail business in nutritional supplements.

6. Mr Nguyen, born 13 April 1975, currently residing in Casula, New South Wales was married in 2007 to Mrs Phuong Ha Nguyen. There are two children from the relationship, William (born 16 January 2008) and Edison (born 15 June 2012). Mr Nguyen divorced Phung Ha Nguyen on 2 August 2015. They have joint custody of the children who reside with Mr Nguyen in Casula from Monday through Thursday and spend the weekends with their mother. Mr Nguyen is a tax accountant who runs his own business.

7. Ms Phan and Mr Nguyen were introduced to each other by Ms Phan’s younger sister, Thi Thu Ha Phan, who has known Mr Nguyen since 1999 through their mutual friend Khanh. Mr Nguyen was in Australia studying at Martin College, which was next to Embassy College where Thi Thu Ha Phan was studying. Later, all three shared a house in Marrickville. Mr Nguyen, who was granted a Class DD Skilled (Residence) Subclass 880 Independent Overseas Student visa on 26 November 2003, is also the accountant for Thi Thu Ha Phan’s business. When Ms Phan and Mr Nguyen both became divorced in 2015, Thi Thu Ha Phan felt that they would be a good match. She told the Tribunal that she knew Mr Nguyen well and her sister needed a person she could rely on to give her strong support. Therefore, she introduced them in November 2015.

8. After exchanging emails and telephone calls, on 28 December 2015 Mr Nguyen went to Vietnam. He met Ms Phan at her mother’s house on 6 January 2016 and they met again about a week later. Mr Nguyen returned to Australia on 16 January 2016 and they remained in contact. In February 2016 he first broached the subject of marriage and Ms Phan said she would think about it. On 2 August 2016 Ms Phan came to Australia with her mother to see her sister and daughter. She and Mr Nguyen saw each other every weekend. On 13 August 2016 Mr Nguyen asked Ms Phan to marry him and she accepted. Ms Phan returned to Vietnam on 28 August 2016. The couple decided that rather than have an engagement party in Vietnam they would wait for Ms Phan’s visa to be granted and get married in Australia. They planned to marry on 21 June 2017.

9. Mr Nguyen went to Vietnam on 29 December 2016 returning on 18 January 2017 and 19 October 2017 returning on 11 November 2017. During this later trip he and Ms Phan decided that, because the visa had been refused and they could not marry in Australia in June, they would have a significant engagement ceremony for their relatives in Vietnam and Ms Phan’s friends when Mr Nguyen returned to Vietnam between 29 December 2017 and 22 January 2018. Mr Nguyen did not want to get married in Vietnam because of the obligations it would place on them to attend other people’s weddings in Vietnam which he felt would prove too costly over time. On 14 January 2018 the couple held an engagement ceremony and celebration with five male and female matching attendants during which Ms Phan wore both a traditional red dress and a white wedding dress. The official photographs show over 20 relatives in attendance and more candid photos show a number of guests at dinner tables.

10. Mr Nguyen has returned to Vietnam to see Ms Phan from 30 June to 7 July, 3 to 15 October, and 29 November to 10 December 2018. During all his visits he has stayed with Ms Phan in her home. He has not yet returned to Vietnam in 2019 because his business started to increase and he had spent a lot of time away in the first half of the financial year. He also had an unnerving experience at the airport on his last return trip from Vietnam and Ms Phan suggested that he not fly so much. The couple had hoped that Ms Phan would have a visa in time for them to marry in Australia on 10 August 2019. Since that is not possible, Mr Nguyen plans to visit for November and they hope that he can return with Ms Phan and the children.

    Does Ms Phan Intend to Marry an Eligible Person?

11. 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. The Tribunal accepts that Mr Nguyen became an Australian citizen on 27 September 2006. Accordingly, the requirements of cl.300.211 are met.

    Was Ms Phan 18 at the Time of Application?

12. Clause 300.212A requires that the visa applicant has turned 18. Ms Phan was born on 21 June 1972 and was 43 years of age at the time when she lodged the application. On the evidence before it the Tribunal finds that cl.300.212A is met.

    Is the Sponsorship Prohibited?

13. Clause 300.212 requires that at the time of application the prospective spouse, being the Australian citizen or Australian permanent resident or an eligible New Zealand citizen referred to in cl.300.211, is not prohibited by cl.300.212(2) from being a sponsor. The Tribunal finds that Mr Nguyen, the prospective spouse, is not a woman in the circumstances prescribed in cl.300.212(2)  and, therefore, is not prohibited from being a sponsor under that clause. Accordingly, the requirement in cl.300.212 is met.

    Is Ms Phan Sponsored as Required?

14. Clause 300.213 requires that at the time of application the visa applicant is sponsored by the prospective spouse, and that the prospective spouse has turned 18. Based on the ‘Sponsorship for a partner to migrate to Australia Form 40SP’ on the Department of Home Affairs’ (DOHA) file, the Tribunal accepts that at the time of the application Ms Phan was sponsored by Mr Nguyen. Mr Nguyen was born on 13 April 1975 and at the time of application was 41 years of age. Therefore, cl.300.213 is satisfied.

    Have the Parties Met in Person and are They Known to Each Other Personally?

15. Clause 300.214 requires that the parties, being the visa applicant and the prospective spouse, have met in person since each of them turned 18 and that they are known to each other personally. The Tribunal has had regard to DOHA’s movement records which indicate that Mr Nguyen has been to Vietnam on a number of occasions and Ms Phan has been to Australia once. It has also had regard to the photographs and temporary residence registrations submitted. It accepts Mr Nguyen’s and Ms Phan’s evidence that in January 2016 they met at her mother’s. It also accepts that during their trips they spent time together. Therefore, at the time of application, the requirements of cl.300.214 were met.

    Do the Parties Genuinely Intend to Marry?

16. Clause 300.215 requires that at the time of application the parties had a genuine intention to marry, and that the marriage was intended to take place within the visa period. In light of the evidence provided by Mr Nguyen and Ms Phan the Tribunal accepts the undertaking in the visa application and the Intention to Marry form that at the time of application the parties had a genuine intention to marry on 21 June 2017. They satisfied the requirements of cl.300.215(a) and that would have been within the visa period had it been granted as required by cl.300.215(b).

17. Since the visa was not granted, the couple planned to marry on 10 August 2019, however, that too has proved impossible. Therefore, the proposed date for the wedding is now as soon as possible after Ms Phan arrives in Australia, hopefully in November 2019, which will also be within the visa period as required by cl.300.215(b).

18. Therefore, the requirements of cl.300.215 were at the relevant time, and continue to be, met.

    Do the Parties Genuinely Intend to Live Together as Spouses?

19. 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). 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.

20. 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). These include the intended financial and social aspects of the relationship, the intended nature of the household, and the nature of the couple’s intended commitment to each other once they are married. 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.

21. The Tribunal has considered the documentary evidence submitted both to DOHA and to the Tribunal. It took evidence from Mr Nguyen about his relationship with Ms Phan at the hearing and then took evidence from Ms Phan. It found Mr Nguyen to be genuine and enthusiastic about the prospect of his marriage to Ms Phan with strong feelings about his household and the raising of their children. Ms Phan was able to independently corroborate Mr Nguyen’s evidence about the couple’s intentions for the future of their relationship and agreed with most of his views. There is persuasive evidence that they have had discussions about all the matters that it would be reasonable for them to decide before Ms Phan came to Australia if they were genuinely intending to live together as spouses. They gave consistent evidence about those discussions and what had been agreed. As claimed, the couple have a similar background and view on life. They talk about simple things like the children, the difference in the weather, food, or what is happening with the Casula house. They often talk about the future, for instance that they would like to buy a motorhome for holidays, and sometimes they talk about the business. Mr Nguyen told the Tribunal that they respect each other and that is important to both of them in a marriage.

22. The Tribunal discussed the way in which they intend to set up their family finances, including what Ms Phan will do when she works part-time in Mr Nguyen’s business. Mr Nguyen is already supplementing Ms Phan’s income and assisting with the children’s education, particularly to learn English. Ms Phan told the Tribunal she considers the money he sends her to be part of her income, not just for gifts or extras. Ms Phan is the primary beneficiary of Mr Nguyen’s superannuation and he intends to add her to the title of the Casula house where they will live once they marry.

23. The couple told the Tribunal that Mr Nguyen has extended the Casula house to include four bedrooms. He and Ms Phan will have the main bedroom, while William and Edison share a room, and Ngoc Anh and Hai Dang share a room. The fourth bedroom will be for guests or if Thi Huong Giang comes to stay. Ms Phan will cook and take care of the children, for instance taking the boys to school (her daughter will be able to walk to school). By helping Mr Nguyen part-time in his business, Ms Phan will give him the time to come home for dinner with her and the children, which they both believe is important for family cohesion. Mr Nguyen told the Tribunal that the children need to see him and Ms Phan together so they learn how parents should behave towards each other, how they should respect one another.

24. Both Mr Nguyen and Ms Phan have a good knowledge of each other’s children (for instance that William has won a place in a selective school and Hai Dang started kindergarten the week of the hearing) from regularly discussing what is going on in their lives. Mr Nguyen has a good relationship with Thi Huong Giang (who he sees in Australia and sometimes calls him ‘dad’), and Hai Dang (who he plays with since he is very young). Ngoc Anh is learning to trust him. Ms Phan has not yet met William and Edison, who do not speak any Vietnamese. They have discussed how they will manage the language barrier between Ms Phan and Mr Nguyen’s children, as well as how Ms Phan’s children will cope with schooling in English; they will go to Casula Public High School and Casula Primary. By only speaking English at home, Mr Nguyen believes the children will pick it up quickly. He has already been providing them with extra English classes in Vietnam. Ms Phan told the Tribunal that as soon as she arrives she will learn to drive and learn English. But she expects that it will be challenging with William and Edison in the beginning. However, she said, they will know that she cares about them by the love she will show them and she does not need to speak English for that.

25. The couple told the Tribunal that on Sundays they will go to the meditation classes that Mr Nguyen likes to attend. Ms Phan said she looks forward to learning more about meditation. Mr Nguyen said it is in the country and a good place for family weekends. Otherwise, they will socialise with each other’s families and Mr Nguyen’s clients who are often also friends.

26. The Tribunal finds that the evidence supports that Mr Nguyen and Ms Phan have always intended to legally marry and, when they do, have a mutual commitment to a shared life as a married couple to the exclusion of all others. It finds that at the time of application they intended that their married relationship will be genuine and continuing and that they will live together with their children in the renovated Casula house. At the time of application, the parties genuinely intend to live together as spouses and, therefore, meet the requirements in cl.300.216 of the Regulations.

    Do the Parties Continue to Meet Time of Application Requirements?

27. Clause 300.221 requires that at the time of this decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. The Tribunal finds that Ms Phan still intends to marry an Australian citizen, Mr Nguyen; that Mr Nguyen and Ms Phan have met and are known to each other personally; that they genuinely intend to marry and intend to do so during the visa period; and that Mr Nguyen and Ms Phan continue to genuinely intend to live together as spouses as defined in the Act once they are married. Accordingly, cl.300.221 is met.

    Ngoc Anh and Hai Dang Nguyen

28. Clause 300.311 requires that at the time of application the secondary applicants are members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.300.211 to cl.300.212 and cl.300.214 to cl.300.216. Since Ms Phan is the person who satisfies the primary criteria in cl.300.21, Ngoc Anh and Hai Dang Nguyen must be members of her family unit.

29. Regulation 1.12 sets out the definition of ‘member of the family unit’. Relevantly, at r.1.12(1)(b), it states that a person is a member of the family unit of another person (in the subregulation called ‘the family head’) if the person is a ‘dependent child’ of the family head or of the spouse of the family head. To be a ‘dependent child’ Ngoc Anh and Hai Dang must meet the definition in r.1.03 of the Regulations. Relevantly, at (a), it  states that a dependent child of a person means the 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. Ngoc Anh, who was born on 4 June 2006, was 9 on the day that the application was lodged and Hai Dang, born 7 September 2013, was 2 years old. At the time of application they were both the dependent child of Ms Phan. The Tribunal finds that they made a combined application and are members of Ms Phan’s family unit so they meet cl.300.211.

30. Clause 300.321 requires that the secondary applicants continue to be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 300 visa. The Tribunal finds that, currently being ages 13 and 5 respectively, Ngoc Anh and Hai Dang continue to be members of Ms Phan’s family unit at the time of this decision. They will meet cl.300.321 should Ms Phan become the holder of a Subclass 300 visa.

1. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for the Subclass 300 visas.

   DECISION

2. 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 the clauses in cl.300.21 of Schedule 2 to the Regulations; and

   ·cl.300.221 of Schedule 2 to the Regulations.

3. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the second and third named visa applicants meet the following criteria for a Subclass 300 (Prospective Marriage) visa:

   ·cl.300.311 of Schedule 2 to the Regulations.

   Mireya Hyland
   Member