Nguyen (Migration)

[2017] AATA 1833

Nguyen (Migration) [2017] AATA 1833 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Vanessa Dung Nguyen

VISA APPLICANT:  Mr Quoc Hung Vuong

CASE NUMBER:  1600443

DIBP REFERENCE(S):  OSF2015/070431

MEMBER:Justine Clarke

DATE:13 October 2017

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.300.221A of Schedule 2 to the Regulations

STATEMENT MADE ON 13 OCTOBER 2017 AT 5:15PM

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – Evidence of visa applicant’s divorce – No evidence of review applicant’s previous marriage

LEGISLATION
Migration Act 1958, s 65, 360
Migration Regulations 1994, Schedule 2 cl.300.221A

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, Mr Quoc Hung Vuong, is a 33 year old national of Vietnam, residing in Hong Kong.

3. The sponsor and review applicant, Ms Vanessa Dung Nguyen (formerly Ms Thi Ngoc Dung Nguyen), is a 35 year old Australian citizen.

4. On 18 May 2015, Mr Vuong applied for the visa. 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 include cl.300.221A, which is a criterion to be satisfied at the time of decision.

5. On 31 December 2015, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.300.221A. The delegate referred to the Department’s policy guidelines that stated that for cl.300.221A to be satisfied at the time of decision:

   ·both parties must be free to marry; and

   ·the intended marriage must be able to be recognised under Australian law as valid.

6. The delegate considered the available evidence and found that Mr Vuong had provided insufficient evidence to demonstrate his divorce from his first wife—Ms Thi Ngoc Bich Nguyen—and the delegate found that, at the time of the primary decision, Mr Vuong was still married to his second wife—Ms Vanessa Huynh.

7. Accordingly, the delegate concluded that the parties were unable to provide evidence or information which allowed the delegate to reasonably establish that both the visa applicant and the sponsor were free to marry or that their intended marriage would be able to be recognised as valid under Australian law.

8. On 13 January 2016, Ms Nguyen applied to the Tribunal for review of the primary decision. Subsequently, she was represented in relation to the review by her registered migration agent.

9. On 8 December 2016, Ms Nguyen provided written submissions and evidence, by way of her representative, and submitted that the evidence provided satisfies cl.300.221A and requested that a decision be made ‘on the papers’.

10. This matter was constituted to a Member of the Tribunal on 11 October 2017.

11. Pursuant to s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it. Accordingly, the review applicant was not invited to a hearing and no hearing was held.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether or not there is an impediment to the marriage in Australian law.

    Is there any impediment to the marriage?

14. Clause 300.221A requires that, at the time of decision, there is no impediment to the marriage in Australian law.

15. The Tribunal has before it significant evidence in regard to this matter which was not available to the delegate at the time of the primary decision.

16. The parties provided the following evidence:

    ·a copy of a document from the Victorian Registry of Births, Deaths & Marriages, dated 24 November 2015, stating that no record could be found in the register—from 15 December 1997 to 9 November 2015—for the marriage in Victoria of the review applicant to Ngoc Hue Nguyen and Thi Tuyet Mai Dao;

    ·copies of documents in the Chinese language;

    ·a copy of an English translation by a named NAATI translator made on 8 December 2016. The translated document is a court order from the District Court of the Hong Kong Special Administrative Region dated 20 May 2016. It evidences that a named judge had confirmed that the visa applicant and Thi Ngoc Bich Nguyen—which the Tribunal notes is his first wife—had been continuously separated for more than two years before applying for the divorce. The document evidences that the court issued a divorce decree and ordered that the marriage be dissolved, unless within six weeks of the date of the order good cause is shown to the court why the order should not become absolute;

    ·copies of other English translations by a named NAATI translator made on 8 December 2016 of various court documents dated 20 and 26 May 2016 relating to aspects of the divorce proceedings;

    ·a copy of an English translation by a named NAATI translator made on 8 December 2016. The translated document is a certificate from the District Court of the Hong Kong Special Administrative Region dated 8 July 2016. This evidences that the decree nisi between the visa applicant and Thi Ngoc Bich Nguyen became final and absolute on 7 July 2016 and that their marriage is dissolved;

    ·a copy of the signed and sealed divorce order made in the Federal Circuit Court of Australia on 11 October 2016 with findings that the marriage between the visa applicant and Vanessa Huynh—which the Tribunal notes is his second wife—is proved and that the ground for the application for a divorce order is also proved. The order states that the divorce order is to take effect and thereby the marriage is terminated on 12 November 2016; and

    ·a copy of the registered birth certificate for the child Dylan Duc Khang Vuong, born in August 2016 in Australia, and recording his mother as the review applicant and his father as the visa applicant.

17. On the basis of the evidence before it, the Tribunal is satisfied that neither the visa applicant nor the review applicant is party to another marriage that is recognised as valid in Australia. Accordingly, the evidence before the Tribunal does not demonstrate that the proposed marriage between the visa applicant and the review applicant would be invalid under Australian law.

18. As there is not an impediment to the proposed marriage under Australian law, cl.300.221A is satisfied.

19. 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

20. 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.300.221A of Schedule 2 to the Regulations

    Justine Clarke
    Member