NGUYEN (Migration)

[2017] AATA 1472

NGUYEN (Migration) [2017] AATA 1472 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr VAN HAI NGUYEN

VISA APPLICANTS:  Ms THI HONG NGUYEN
Miss HIEN THAO NGUYEN
Miss HIEN MI NGUYEN

CASE NUMBER:  1616836

DIBP REFERENCE(S):  2015071348 OSF 2015/071348

MEMBER:Michael Cooke

DATE:28 August 2017

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:

·cl.300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

·cl.300.321 of Schedule 2 to the Regulations

Statement made on 28 August 2017 at 4:33pm

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Genuine intention to marry – Photographic evidence – Remittance slips – Household registration receipts – Significant additional information regarding relationship

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulation 1994, Schedule 2 cl 300.216, cl 300.221, cl 300.321, r 1.15A

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 Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 30 October 2015. 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 300.216.

3. The delegate refused to grant the visas on 9 September 2016 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate did not find the parties did not genuinely intend to live together as spouses.

4. The review applicant sponsor appeared before the Tribunal on 8 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence the visa applicant by telephone. 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 his registered migration agent. The representative attended the Tribunal hearing.

6. Additional information addressing issues in the case was forwarded to the Tribunal by the sponsor’s representative. This included photos of family socialising in Vietnam. Remittance slips, Household registration receipts for the sponsor when staying with the applicant, Form 888s and Vietnamese affidavits from supporters of the relationship, and a current Notice of Intention to Marry notification (T1, ff. 99-106, 26-91).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties genuinely intend to live together as spouses.

   Do the parties genuinely intend to live together?

9. 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 husband and wife 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.

10. 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.

11. The Tribunal has seen significant additional information which indicates that the parties have a financial relationship; they have conducted a household in Vietnam and shared the care of children. They have provided copious evidence of socialising and acceptance by family members of the relationship. Additional supporters have confirmed the genuineness of the relationship in declarations and affidavits. The Tribunal is satisfied that parties share a commitment to a genuine long term relationship which will involve the raising of step-children.

12. 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.

    Do the parties continue to meet time of application requirements?

13. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses.

14. The Tribunal finds that the above criteria have been met by the parties. Accordingly, cl.300.221 is also met.

15. As the applicant now meets cl.300.221 so then the secondary applicants can now satisfy cl.300.321 of the Regulations.

16. 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

17. 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:

    ·cl.300.216 of Schedule 2 to the Regulations

    ·cl.300.221 of Schedule 2 to the Regulations

    ·cl.300.321 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member