Nguyen (Migration)

[2023] AATA 4728

Nguyen (Migration) [2023] AATA 4728 (23 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Anne Nguyen

VISA APPLICANT:  Mr Chanh Minh Tran

REPRESENTATIVE:  Ms Sandra Tempest (MARN: 9682495)

CASE NUMBER:  2005118

HOME AFFAIRS REFERENCE(S):          BCC2019/1482331

MEMBER:Naomi Schmitz

DATE:23 November 2023

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 23 November 2023 at 12:58pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – non-appearance before the Tribunal – medical certificate – genuine intention to marry – Notice of Intended Marriage – progress of wedding preparations – genuine intention to live together as spouses – financial aspects – nature of the household – social aspects – nature of the commitment – paucity of evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360, 379A
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.215, 300.216

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 Home Affairs to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 24 March 2019. 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 (Cth) (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 and cl 300.216.

3. On 6 March 2020, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 300.215 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant genuinely intended to marry his sponsor (also referred to in this decision record as the review applicant) and that the marriage would take place within the visa period. The delegate was also not satisfied that the visa applicant met cl 300.216 as there was insufficient evidence to demonstrate that the parties intended to genuinely live together as spouses.

   Background[1]

   [1] Departmental file BCC20191482331 and BCC20191482331

4. The applicant is a citizen of Vietnam. He has been previously married, marrying on 11 November 2002 until 28 December 2011. There are two children from this relationship currently aged 19 and 20 years. They are not secondary visa applicants in this review proceedings. It is proposed that they remain with their paternal grandparents. Information submitted at the time of application indicates that the visa applicant has parents and two siblings who reside in Vietnam.

5. The sponsor was previously in a de facto relationship in Vietnam from 1 January 1993 until 1 March 1994. There is one child, a son, from this relationship, currently aged 29 years who resides in Australia. The sponsor arrived in Australia on 11 May 2007 on a Prospective Marriage Visa (Subclass 300). The sponsor subsequently married an Australian citizen on 6 October 2007 until 23 March 2018. There are no children from this relationship. The sponsor's parents are both deceased. The sponsor has eight siblings who reside in Vietnam.

6. The parties claim they first met on 15 December 2015 at Chien Kieu Pagoda in Soc Trang, Vietnam.

7. After the sponsor returned to Australia on 6 January 2016 the parties claim they maintained contact via various web-based communication apps including Tango, Zalo, and Facebook.

8. In the visa applicant’s relationship statement, he claimed after the parties initially met, that the sponsor next travelled to Vietnam on 3 March 2016 until 22 March 2016. During this trip he claimed the parties visited each other's relatives and also the visa applicant’s home in Soc Trang where the sponsor stayed.

9. The sponsor claimed that after initially meeting in December 2015, that she next returned to Vietnam on 26 September 2016 until 24 October 2016. During this time, she claimed that the visa applicant greeted her at the airport and that they stayed at a hotel in Ho Chi Minh City for two days. She also claimed that she took the visa applicant to the graves of her parents to pray. During this time, she claimed that she stayed at the visa applicant’s house in Soc Trang. The sponsor also claimed that she and the visa applicant travelled to Phu Quoc Island, Vietnam for a three-day tour and to Bangkok and Phuket, Thailand, and to Kampuchea, Cambodia.

10. The sponsor subsequently travelled to Vietnam from 8 February 2017 to 2 March 2017.

11. The sponsor again returned to Vietnam from 12 February 2018 until 16 March 2018 and spent Lunar New Year with the visa applicant and his family.

12. It is claimed that the visa applicant proposed to the sponsor by telephone on 13 May 2018 and that she accepted the visa applicant’s proposal.

13. The sponsor subsequently travelled to Vietnam on 6 September 2018 and held an engagement ceremony on 15 September 2018.

14. The sponsor returned to Australia on 11 October 2018. Departmental records showed the sponsor travel to Vietnam from 13 July 2019 until 16 August 2019.

    Delegate’s Decision

15. The delegate who considered the application noted:

    a.The visa applicant and sponsor did not provide any evidence regarding the financial aspects of their relationship, this is despite the sponsor in her relationship statement claiming that the parties held a joint online bank account. No corroborative evidence was provided to support this claim;

    b.The parties provided evidence that the sponsor obtained a temporary household registration at the visa applicant’s Soc Trang, Vietnam, address from 6 September 2018 until 1 October 2018. Whilst the household registration indicated that the parties were registered at the same address during the specified dates, there was no evidence that the parties shared household responsibilities;

    c.The visa applicant claimed that the sponsor had stayed with him at his Soc Trang address at an earlier period, namely during the sponsor’s visit to Vietnam from 3 March 2016 until 21 March 2016. No temporary household registration was provided in support;

    d.A hotel receipt in joint names was submitted indicating that the parties had rented a hotel room in Kien Giang from 10 March 2016 until 11 March 2016 and a temporary joint registration at Anh Dao Hotel in Kien Giang from 6 March 2016 until 8 March 2016. Whilst the hotel receipt and temporary joint registration indicated that the parties had stayed at the same hotel during the specified dates, there was no evidence that the parties shared the responsibilities of the household during this period and therefore this was accorded little weight;

    e.The sponsor travelled to Vietnam on seven occasions between 2016 and 2019. The parties claimed that they spent a significant amount of time together including at the visa applicant’s home, hotels, and travelling around Vietnam and other destinations including Cambodia. Limited evidence was provided to support these claims and the evidence that was provided was considered incongruent with the claimed periods of time spent together;

    f.The photographic evidence whilst indicating that the parties had undertaken some joint social activities together, in itself was not considered sufficient to demonstrate the social aspects of the parties’ relationship;

    g.The statutory declarations contained generic and limited relationship information;

    h.There were discrepancies in the parties’ recollections regarding the inception and development of their relationship, in particular:

    i.In the visa applicant’s relationship statement, he claimed after the parties’ initial meeting in December 2015, that they next met in Vietnam on 3 March 2016 at the Tan Son Nhat Airport in Ho Chi Minh City. He claimed that he and the sponsor stayed at a hotel in Ho Chi Minh City for two days and then visited relatives and the tombs of the sponsor’s parents before staying together at the visa applicant’s home in Soc Trang. In support, a joint temporary registration at Anh Dao Hotel in Kien Giang from 6 March 2016 until 8 March 2016 and a joint hotel receipt from Kien Giang between 10 March 2016 and 11 March 2016 was provided; and

    ii.In contrast, the sponsor made no reference to a March 2016 visit in her relationship statement. She claimed she next saw the visa applicant on 26 September 2016, who greeted her at the airport, that the parties stayed at Ho Chi Minh City for two days and then she took the visa applicant to pray at the graves of her parents. The sponsor also stated that the parties had a three-day tour to Phu Quoc Island and they travelled to Thailand and Cambodia during this trip.

    The delegate accepted that whilst couples may remember some aspects of their relationship differently, the delegate was concerned that the parties had such different recollections regarding the development of their claimed relationship, this was particularly so given March 2016 was the first time the parties visited relatives and prayed at the graves of the sponsor’s parents. These inconsistencies indicated that the claimed relationship was not presented in a truthful or accurate manner and overall raised significant doubts that the relationship was not genuine;

    i.The parties claimed that after meeting in December 2015, that after the sponsor returned to Australia on 6 September 2016, that they communicated through various social media apps including Tango, Zalo, and Facebook. The communication records did not support the parties’ claims;

    j.The parties claim they first met in December 2015, that they began a relationship in March 2016 and held an engagement ceremony on 15 September 2018. The evidence provided did not demonstrate in convincing detail the development and duration of the parties’ relationship and what led the parties to decide to commit to a serious relationship with each other and that the parties’ decision to marry reflected the level of consideration that is usual between two persons making a genuine and lifelong commitment to each other.

16. Taking into account these matters, the delegate found that there was insufficient evidence to demonstrate that the parties had intended to be in a genuine and continuing relationship. Accordingly, the delegate found that the parties did not genuinely intend to live together as spouses as defined in s 5F of the Act. Therefore, the delegate found that the visa applicant did not meet the criteria in cl 300.215 and cl 300.216 and cl 300.221 and refused the application.

    Application for Review

17. On 14 March 2020, the review applicant applied to the Tribunal for a review of the refusal decision. The review applicant provided a copy of the delegate’s decision record to the Tribunal.

18. On 26 April 2023, the Tribunal sent a letter to the review applicant requesting information regarding the circumstances of the parties claimed relationship in accordance with reg 1.09A or reg 1.15A including the financial and social aspects of the parties’ relationship, the nature of the parties’ household, and the nature of the parties’ commitment to each other. The Tribunal requested that this information be provided by 10 May 2023.

19. On 8 May 2023 and 12 May 2023, the representative submitted various unannotated photographic evidence and untranslated video/chat logs.

20. On 26 October 2023, the Tribunal wrote to the representative and advised that the Tribunal Member has considered the material submitted and noted that all of the communication records were not translated into English and therefore in an unacceptable format. The Tribunal explained that any documents submitted to the Tribunal must be translated into English by an accredited translator. The Tribunal Member requested that a representative sample of the material already submitted be translated into English by an accredited translator and resubmitted to the Tribunal. The review applicant was asked to provide this information by 13 November 2023.

21. On 27 October 2023, the Tribunal invited the review applicant under s 360(1) of the Act to appear in-person at a Tribunal hearing commencing at 9:30 am (VIC time) on 20 November 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the review applicant. The invitation advised the review applicant to provide all documents intended to be relied on by 13 November 2023.[2] The review applicant was represented in relation to the review. The letter further advised that if the review applicant did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the review applicant to appear before it. The letter instructed the following:

    [2] Migration and Refugee Division Practice Direction dated 22 February 2023.

    Arrangements for the hearing

    To allow for the hearing to commence on time you should arrive at least 15 minutes before the start of the hearing. You should report immediately to reception on level 4. Registration and preparation for the hearing will begin at this time.

22. On 8 November 2023, the representative submitted to the Tribunal:

    a.A response to hearing invitation signed by the review applicant on 3 November 2023. The response indicated that the review applicant, the visa applicant, and the representative would participate at hearing. The response further indicated that the review applicant sought to call evidence from two friends, Hien Ngoc Nguyen and Tien Quang Ha. A covering email from the representative which stated ‘In addition, I seek leave to attend the hearing via telephone, as I am in Queensland and have fractured my ankle.

    b.A letter from a marriage celebrant dated 3 November 2023 confirming a marriage ceremony would be conducted between the parties on 12 October 2024 at 12:00 pm, attached with a Notice of intended Marriage signed by the sponsor only on 3 November 2023, indicating that the parties intended to marry on 12 October 2024 at 12:00 pm at an address in Abbotsford;

    c.Nine translated witness statements;

    d.Business and company registration certificate and guest information for temporary stay registration (in the visa applicant’s name only check-in date 10/09/2022 and check-out date 12/09/2022); and

    e.A zip file said to contain photographic evidence (which was inaccessible to the Tribunal).

23. On 9 November 2023, the Tribunal wrote to the representative and requested written statements from the proposed witnesses referred to in [22a] so that the Tribunal Member could consider the relevancy of the witnesses’ evidence and determine if it was necessary to call them at hearing. The Tribunal requested that written statements be provided to the Tribunal by 13 November 2023.

24. In the same letter, the Tribunal further advised that the Tribunal Member had carefully considered the representative’s request to appear by telephone, however the application was refused. Whilst the Tribunal Member accepted that the representative had fractured her ankle and had considerable sympathy for her situation, the Tribunal requested that the representative appear virtually by Microsoft Teams video-link to facilitate communication at the hearing. The Tribunal did not consider that requiring the representative to appear by Microsoft Teams video-link would cause any additional inconvenience or difficulty for the representative given the representative would not be required to physically appear before the Tribunal. The Tribunal provided the representative with a Microsoft Teams video-link for 20 November 2023 at 9:30 am (VIC time) and 8:30am (QLD time).

25. On 10 November 2023, the Tribunal wrote to the representative and advised that the zip file containing photographic evidence referred to in [22e] was inaccessible. The Tribunal requested that the representative ensure that the materials provided were in an accessible format such as by email attachments or via the Tribunal’s online portal.

26. On 10 November 2023, the Tribunal received:

    a.Various unannotated photographic evidence;

    b.One video; and

    c.Various untranslated chat records.

27. The review applicant, visa applicant, and two civilian witnesses did not appear at hearing. The Tribunal did not receive any correspondence from the review applicant regarding her non-attendance. There was no information before the Tribunal at the time of hearing to indicate that the hearing would not proceed. The representative also did not appear at hearing. There was no evidence before the Tribunal to suggest that the representative would not appear and there was no evidence of the representative attempting to join the hearing. On 20 November 2023, the Tribunal Member declared a no-show at 9:45am (VIC time).

28. The Tribunal notes that two SMS hearing reminders were sent to the review applicant’s mobile phone, including on 13 November 2023 and 17 November 2023,[3] one week in advance of the hearing and the second SMS on the Friday before the hearing which was on a Monday. For each SMS hearing reminder, the Tribunal did not receive any notification of delivery failure. Having reviewed the Tribunal file and chronology of communications with the review applicant and representative referred to above, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), using the contact information provided by the review applicant and that reasonable steps were taken to ensure that the review applicant was aware of the hearing.

    [3] Tribunal Case Note 5 and 6.

29. Post hearing, on 20 November 2020 at 8:13 pm the Tribunal received the following email from the representative:

    Dear Tribunal

    I am of the understanding there was a tribunal Hearing today for my client Anne Nguyen Case No – 2005118.

    My client has advised she has been ill for the last two weeks and obtained a Medical certificate again today and sent that to me.

    However, I never received any call from you. I had requested to be present via phone as Ilive (sic) in Queensland.

    I attach my client’s medical certificate.

    Warm regards

    [Representative]

30. Attached to the email was a medical certificate from the Richmond General Medical Centre which stated:

    This is to certify that Ms Anne Nguyen on 20/11/2023.

    Stated that due to a medical condition

    ·The patient will be unfit for work/school from 20/11/2023 and up to 20/11/2023 inclusively.

    Signed Dr Hieu Nguyen

31. The Tribunal Member has carefully considered the representative’s post-hearing correspondence and the medical certificate filed in support. The Tribunal Member is satisfied that the review applicant was accorded with procedural fairness and was aware of the hearing and in the circumstances has decided to proceed to decision without rescheduling the hearing. The Tribunal notes that there was no explicit request by the representative to reschedule the hearing. The Tribunal Member further rejects much of the contents of the representative’s email which is discussed below in this decision record.

32. The Tribunal is satisfied that the representative knew and was informed that she was required to attend the hearing by Microsoft Teams technology, as previously indicated in the Tribunal’s letter dated 9 November 2023 and referred to in [24] above and that she was not to receive a telephone call from the Tribunal as stated in her email dated 20 November 2023. At no stage during the hearing or the course of 20 November 2023 during business hours, did the representative contact the Tribunal regarding the hearing and the review applicant’s non-attendance at hearing. The representative further did not contact the Tribunal to advise that the review applicant was ill and was seeking medical attention or that a medical certificate would be forthcoming. Rather, the Tribunal received an email and medical certificate at 8:13 pm (AEST) on 20 November 2023, approximately 11 hours after the scheduled hearing.

1. The Tribunal has had regard to the representative’s instructions from the review applicant that the review applicant had been ill for two weeks prior to hearing, however this is not supported by any medical evidence. The Tribunal received no forewarning that the review applicant was ill in the two weeks leading up to the hearing and would be unable to participate at hearing. The Tribunal did not receive a request from the representative to adjourn the hearing on medical grounds. To the contrary, information in support of the application for review was filed in the two weeks leading up to the hearing, including on 8 November 2023 and 10 November 2023 referred to in [22] and [26] above.

2. The only documentation received to indicate that the review applicant was ill, was the medical certificate dated 20 November 2023, stating that she was unfit for ‘work/school’ that day. The certificate does not state that she is unfit to appear before a Tribunal. There is also no evidence to suggest that the review applicant was unfit to appear virtually at hearing before the Tribunal. The Tribunal Member has carefully considered the contents of the medical certificate however considers it to be vague and unsatisfactory. The medical certificate does not detail the nature and symptoms of the review applicant’s medical condition she was said to be suffering on 20 November 2023 and how it impacted on her ability to attend and participate in the hearing. The Tribunal further notes that the review applicant did not contact the Tribunal herself to indicate that she was too ill to attend the hearing, this is despite being sent two SMS text reminders three and seven days before the hearing.

3. The Tribunal further does not regard it as reasonable to seek further particulars from the review applicant regarding her condition, given she is legally represented and given her prior history of not responding to various requests by the Tribunal including providing witness statements and translated communication records referred to in [20] and [23] above.

4. The Tribunal is under no statutory obligation to seek to contact an applicant who has failed to appear at a scheduled hearing to enquire as to the reason for the non-attendance.

5. In these circumstances the Tribunal has proceeded to decide the review application on the evidence available to the Tribunal.[4]

   [4] s 362B [Part 5] of the Migration Act 1958 (Cth).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Do the parties genuinely intend to marry?

7. 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.

8. At the time of application, the visa applicant provided a ‘certificate of the marital civil status’ confirming that he was divorced. In the visa application, the visa applicant declared that parties intended on marrying on 7 December 2019. No further details were provided.

9. As indicated in [22b] a letter from a marriage celebrant and an updated Notice of Intended Marriage was provided indicating that they would marry on 12 October 2024 at an address in Abbortsford. The Tribunal notes that the Notice of Intended Marriage is signed by the sponsor only. No explanation was provided as to why the visa applicant had not signed the notice electronically and remotely from Vietnam. The Tribunal notes that the visa applicant has previously provided a signed relationship statement dated 22 February 2019. The Tribunal further notes that the nine witness statements referred to in [22c] were signed and provided from witnesses offshore in Vietnam. The Tribunal does not accept that the visa applicant was unable sign the notice remotely. Consequently, this raises concerns regarding the parties having a genuine intention to marry and the Tribunal makes an adverse finding.

10. Of significance, there is no information before the Tribunal regarding how the parties’ marriage plans have progressed since the parties’ engagement over five years ago, such as the wedding reception, if any; the total cost of wedding; the number of wedding guests; the number of groomsmen and bridesmaids, if any; evidence of the purchasing or design of wedding rings; vows to be used at the wedding registration/ceremony; and other auxiliary arrangements such as catering, florist or honeymoon arrangements. The Tribunal finds this perplexing given the significant lapse of time between the time of engagement and the Tribunal’s decision and would expect there would be evidence of further planning and wedding preparations.

11. Having considered the totality of the evidence, the Tribunal does not accept that the parties genuinely intended to marry each other at the time of application. The Tribunal further considers the paucity of the evidence does not support that the parties intend to marry within the visa period. Therefore, the Tribunal finds that the visa applicant does not satisfy the requirements of cl 300.215.

    Do the parties genuinely intend to live together?

12. 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 the legislation may assist in determining the parties’ aspirations.

13. 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.

    Financial aspects

14. In assessing the financial aspects of the visa applicant’s relationship with the sponsor, the Tribunal has considered the following points: the joint ownership of assets, any joint liabilities, the extent to which the applicant and sponsor share their financial resources, any legal obligations each has to the other and any combined future financial commitments or plans.

15. The sponsor has not provided any evidence of the financial aspects of the parties’ relationship including at the time of application and application for review.

16. Although the Tribunal acknowledges the difficulty of combining financial affairs, demonstrating joint ownership of assets and pooling of financial resources due to the parties residing in separate countries, given the sponsor’s claims in her statement dated 7 January 2020 that the parties have a joint online bank account, the Tribunal expects that evidence would be provided to substantiate these claims. Of significance this issue was noted in the delegate’s decision record at the time of the visa refusal over three years and eight months ago. Despite this significant lapse of time, no further financial records have been provided in support and accordingly, the Tribunal places no weight on these assertions. The Tribunal further notes that there have been no fund transfers between the parties, even for a nominal amount, which the Tribunal would expect given the parties claim to be in a long distance relationship.

17. As no credible and reliable financial evidence has been provided in support the Tribunal is not satisfied that the parties have any financial commitment to one another, and that the relationship is genuine and continuing.

    The nature of the household

18. In assessing the nature of the household, the Tribunal has considered the parties’ domestic living arrangements, their understanding of each other’s domestic living arrangements, daily routine as well as whether the couple plan to live together permanently in a spousal relationship.

19. At the time of application, the parties were living separately, the sponsor in Australia and the visa applicant in Vietnam. The Tribunal accepts that the parties are living apart due to the visa requirements and their respective geographical locations and considers it would be unreasonable for the parties to demonstrate to a great extent, that they share joint household or expenses for a common household.

20. The Tribunal has carefully considered the temporary household registration certificate and hotel receipts referred to earlier in this decision record, however places limited weight on them given the short durations. Whilst further claims have been made that the sponsor has stayed with the visa applicant on subsequent occasions, as there is no corroborative evidence in support such as a temporary household registration certificate, limited weight is placed on these claims.

21. The Tribunal further notes that the sponsor has a large family network who reside in Vietnam and considers the purpose of her travel as equivocal. While the Tribunal accepts that the sponsor has travelled overseas to Vietnam it is difficult for the Tribunal on the basis of the evidence before it to conclude that any overseas travel was not largely in part to see her family. The Tribunal regrettably was not assisted by the review applicant who did not provide annotated photographic evidence and updated evidence in support. The Tribunal further notes that none of the communication records were translated and therefore limited weight is placed on them.

22. The Tribunal has considered the parties’ claims of travelling to various overseas countries however limited evidence has been provided in support. The evidence submitted is incongruent with the claimed periods spent together and the Tribunal would expect a greater degree of evidence of staying together.

23. Given the paucity of the evidence at the time of application and at the time of review, the Tribunal is not satisfied that the nature of the household supports an existence of a genuine and continuing relationship between the visa applicant and sponsor.

    Social aspects of the relationship

24. The Tribunal has considered the social interactions of the parties, and the way they represent their relationship to others, and the level of recognition of the relationship by family and friends. It is claimed that the parties were engaged on 15 September 2018.

25. Whilst some photographic evidence was provided and supports that the parties have undertaken some social activities together, the Tribunal regards it as equivocal. The Tribunal further notes the photographs were not annotated, with no dates, locations, and particulars identifying the persons featured in the photographic material and accordingly limited weight is placed on it.

26. The Tribunal has had regard to the two original statutory declarations filed at the time of the visa application. In addition, the Tribunal has had regard to nine further statutory declarations submitted at the time of application for review. Of significance, the Tribunal notes that the nine witness statements are similarly worded and contain limited relationship information i.e. they know the parties and that the witness attended the parties’ engagement ceremony in 2018. The statements provide no details as to the development of the parties’ claimed relationship, any salient observations by the witnesses and what evidence they rely upon as to why they say the relationship is genuine and continuing. Overall, the Tribunal regards the statements as vague and unsatisfactory.

27. Given the time that has elapsed since the engagement the Tribunal would have expected that the parties could provide further information about how others in their familial and social circles viewed their relationship and expect that evidence could be filed to support the parties’ claims.

28. Considering all the evidence cumulatively, the Tribunal is not satisfied that the relationship has any level of social recognition and acceptance.

    The nature of the persons’ commitment to each other

29. In assessing the nature of the parties’ commitment to one another, the Tribunal has considered the circumstances of the parties’ meeting, the development of their relationship, the degree of companionship and emotional support that they provide to one another, their knowledge of each other’s personal circumstances and any evidence of the long-term intentions of the relationship including future planning.

30. Whilst an updated Notice of Intended Marriage has been filed, it is signed by the sponsor only. This raises concerns regarding the parties’ intention to marry and consequently their commitment to one another.

31. It is claimed that the sponsor and visa applicant first met in December 2015 and commenced a relationship and thereafter maintained communication through various social media apps. Whilst communication records have been provided to the Tribunal, they have not been translated into English. It is therefore not possible for the Tribunal to decipher the contents. The Tribunal notes that multiple requests have been made to the review applicant to have the communication records translated by an accredited translator, however these requests have been ignored. Accordingly, limited weight is placed on the communication records.

32. The Tribunal further notes that the sponsor has not provided updated evidence regarding subsequent visits to Vietnam, such as evidence of flight tickets and whilst photographic evidence has been provided, as they are not annotated it is unknown when these photographs were taken. No updated relationship statements have been provided.

33. As noted in the delegate’s decision record and detailed earlier in this decision record, the parties had different recollections regarding the development of their relationship, in particular, the sponsor overlooking her March 2016 visit. No credible explanation has been proffered by the sponsor. Whilst the Tribunal acknowledges that people may have different memories regarding aspects of their relationship, the Tribunal considers it highly implausible that the sponsor would overlook when she next visited the visa applicant after their initial meeting in December 2015. This consequently raises serious concerns regarding the reliability and credibility of the parties’ claims to which the Tribunal makes an adverse finding.

34. Given the paucity of evidence in relation to the time the parties have spent together, the Tribunal is not satisfied that the sponsor and visa applicant provide each other with any emotional support and companionship and that they have a joint commitment to marry and live a shared life together. Overall, the evidence does not support that the parties’ intend to commit to a genuine and continuing spousal relationship.

35. On the basis of the above the Tribunal is not satisfied that at the time of the visa application and at the time of this decision that the parties genuinely intend to live together as spouses, and therefore cl 300.216 and cl 300.221 are not met.

    Conclusion

36. Having regard to the matters outlined above, the Tribunal finds that at the time of application, the parties did not genuinely intend to marry and that they did not intend to marry within the visa period pursuant to cl 300.215.

37. Based on the paucity of evidence and having taken into account the information in relation to the provisions under reg 1.15A, the Tribunal is not satisfied that the parties have ever had, or have a genuine intention to live together as spouses as per s 5F.

38. On the basis of the above the Tribunal is not satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl 300.216 is not met. For the reasons outlined above, the Tribunal is also not satisfied that at the time of decision the parties genuinely intend to live together as spouses. Therefore cl 300.221 is not met.

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

    DECISION

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

    Naomi Schmitz
    Member