Nguyen (Migration)

[2019] AATA 2226

Nguyen (Migration) [2019] AATA 2226 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Tham Nguyen

VISA APPLICANT:  Mr Van Lang Nguyen

CASE NUMBER:  1618338

DIBP REFERENCE:  OSF2016/039127

MEMBER:Rosa Gagliardi

DATE:27 February 2019

PLACE OF DECISION:  Melbourne

DECISION: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.300.216 of Schedule 2 to the Regulations; and

·cl.300.221 of Schedule 2 to the Regulations.

Statement made on 27 February 2019 at 2:51pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – limited financial resources – sharing a household during visits to Vietnam – traditional engagement ceremony – knowledge of sponsor’s history – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.211, 300.216, 300.221

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 7 January 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.300.216.

3. The delegate refused to grant the visa on 20 October 2016 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because he/she was not satisfied that the parties genuinely intended to live together as spouses as defined in s.5F.

4. The review applicant/sponsor appeared before the Tribunal on 9 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, Mr Van Lang Nguyen, over the phone overseas.  In addition, the sponsor’s daughter, Ms Thu Ong also gave evidence.  The Tribunal hearing was 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. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

7. The applicant is a 42 year old male from Tieng Giang Province, Vietnam.  He has declared consistently that he has had no previous marriages or de facto partnerships. 

8. The sponsor is a 51 year old female and has advanced that her previous de facto partnership ended in 2009.  There are two children from this relationship.  She has also declared that she had a child born in 2006 from a brief encounter during a visit to Vietnam.

9. According to the information provided to the Department at the time of application, and at time of review, the parties first me each other while they sat next to each other on a bus from Ho Chi Minh City to their homeland in Tien Giang and in Tra Vinh in 2006.  They began regular contact in 2011 as the sponsor’s relationship with her former partner, as the father of his biological children, was particularly problematic.  He had gambling and drug addiction issues and was in and out of his biological children’s lives causing distress to the sponsor.  The sponsor had turned to the applicant during her difficulties and after 2009, with the relationship between herself and her former partner over her relationship over, phone contact with the applicant became more regular.  The applicant proposed marriage to the sponsor by telephone in January 2013 and she agreed.  On 4 June 2013, the sponsor travelled to Vietnam with her her youngest child and other family members.   On arrival in Vietnam the applicant followed the sponsor to her home area in Tra Vinh, before they travelled to Vung Tau beach, Dai Nam Park in Binh duong and Dam Sen Park in Ho Chi Minh City.  They held an engagement on 16 June 2013 in Tra Vinh.

10. The sponsor’s movement records illustrate that since the engagement in 2013 the sponsor has travelled overseas: twice in 2014; twice in 2015; and for a period in 2018.

    Do the parties genuinely intend to live together?

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 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 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.

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 financial aspects of the relationship

13. The sponsor has two children living at home.  The elder child is not working and only recently started to receive Centrelink payments.  Her younger child is at school and her daughter is living independently.  The sponsor does not currently work outside the home but has done so in the past as a hairdresser.  She is also in receipt of Centrelink payments and some disability payments due to her youngest son’s health condition.  The sponsor is living in government housing and the Tribunal gauged from the hearing that finances within the family are tight.  The applicant is a farmer living with his mother and several siblings.  As such, it would be unreasonable to expect the parties to have purchased significant assets together.  The Tribunal notes, however, that despite these circumstances, the sponsor has travelled to Vietnam to visit the applicant on five occasions since their engagement and the Tribunal places weight on such evidence.

14. The Tribunal also places significant weight on the evidence indicating that over the years the sponsor has made transfers to the applicant totalling AUD$6450.  In the context of the demands placed on the sponsor’s limited finances, the Tribunal considers such funds represent significant support to the applicant.

    The nature of the household

15. The Tribunal has had regard to the photographic material which shows the parties in household situations together and as a couple with the sponsor’s son who has travelled to Vietnam with the sponsor on some occasions.  The photographic material appears natural and on the strength of the credibility of the parties overall, the Tribunal is satisfied that the parties have shared a household during the time the sponsor has been to Vietnam.  At hearing the sponsor readily stated that she also took the opportunity to visit her own family members during these visits.

16. At the time of application, the delegate observed, “…as the parties live in separate countries, I recognise the difficulty in sharing a household and the responsibilities of a household.  I accordingly give little weight to this factor in my consideration of this application”.  The Tribunal finds the photographic material submitted persuasive in terms of demonstrating that the parties started cohabitating in Vietnam after they were engaged.

    Social aspects of the relationship

17. The photographic material submitted to the Tribunal shows the parties together and with others in a variety of social situations.  Some of these situations include holiday settings and in household situations with family and friends.  The parties have also submitted photographic material of them at formal occasions as a couple.  The Tribunal is satisfied that the parties present in public as a couple with an intention to marry and live together as spouses, and just as importantly, the couple and the sponsor’s son presented as a family unit in Vietnam. 

18. In addition, the Tribunal relies heavily in making its decision on the verbal and written evidence of the applicant’s daughter, Ms Thu Ong, who spoke convincingly of the amount of support the applicant provides his mother over the phone and that she has witnessed they spoke together frequently about their daily lives and concerns.  The applicant’s detailed knowledge of the sponsor’s background and her family circumstances support this claim.  Ms Ong stated that her mother needed the applicant to be by her side to assist with their difficult family circumstances.

19. The Tribunal also notes the Forms 888 submitted more recently attesting to the genuine and ongoing nature of the relationship.  One of the writers declares she is aware that the parties communicate frequently and that she will attend the wedding in Australia.  Another declarant also refers to the extent of communication between the parties and reflects a solid awareness of the relationship.

20. The Tribunal notes that the delegate was concerned that it did not appear that the parties had held an engagement ceremony but a selection of photos of a traditional ceremony with family members, elders and friends has been submitted.  The photographic material of the engagement ceremony does not point to the ceremony having been conducted in a concealed or low key manner, and the Tribunal is satisfied that the families and friends of the parties perceive the couple to be in a relationship in which they intend to marry and live together as spouses as defined.

    The nature of the commitment to one another

21. At hearing the Tribunal probed the applicant robustly about the sponsor’s history, including her time in Malaysia as a refugee prior to coming to Australia, and he was aware in detail about these matters, even though the Tribunal would not have expected him to have anticipated such questions.  The Tribunal is satisfied that his consistent discussion about the sponsor’s life was a genuine reflection of the level of communication the parties have engaged in since their engagement in 2013.  It also demonstrates that the applicant had, over the years, taken an interest in the history of the sponsor and her family.

22. The applicant was also aware of the sponsor’s family struggles with her eldest son suffering serious depression and her youngest son also having an illness (autism).  He spoke persuasively at hearing about providing the sponsor with support over the phone when she was distressed as she had limited assistance with managing her sons’ conditions.  The Tribunal found the applicant’s knowledge of the sponsor’s home life in this regard also detailed, and the Tribunal is satisfied that such knowledge has been gained through regular communication as claimed. 

23. The relationship is a long-standing one since the parties were engaged in 2013.  The Tribunal is satisfied that the parties are seen by their respective communities as intending to live together as spouses and that their relationship is genuine and continuing.  Further, the Tribunal is particularly satisfied that the parties provide one another with support and companionship, even though they are currently living apart on a temporary basis.  The Tribunal is satisfied on the evidence that the parties are not living separately and apart on a permanent basis.  The evidence, the Tribunal finds, points to the parties having a mutual commitment to one another to the exclusion of others and that they have a joint vision of their life together as a family unit.

24. 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.  For similar reasons the Tribunal is also satisfied that the parties continue to meet cl.300.216 at the time of decision and accordingly, cl.300.221 is also met.

25. 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.

    DECISION

26. 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.300.216 of Schedule 2 to the Regulations; and

    ·cl.300.221 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member