NGUYEN (Migration)

[2023] AATA 3260

NGUYEN (Migration) [2023] AATA 3260 (4 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thanh Thao Nguyen

VISA APPLICANTS:  Mr Chi Linh Nguyen
Master Hoang Thien Bao Nguyen
Miss Ngoc Uyen Nhi Nguyen

REPRESENTATIVE:  Mr Cuong Vo (MARN: 9250600)

CASE NUMBER:  1832709

HOME AFFAIRS REFERENCE(S):          BCC2017/3860406

MEMBER:David Barker

DATE:4 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 04 October 2023 at 1:39pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine and continuing relationship – genuinely intend to marry – genuinely intend to live together – allegation of continuing to reside with a previous spouse – no shared finances – limited international visits – proposed marriage not shared with acquaintances – insufficient evidence – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 300.211, 300.214-300.216, 300.221; r 1.15

CASES

In the Marriage of Pavey (1976) 10 ALR 259

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

2. The visa applicants applied for the visas on 20 October 2017. 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.

3. The delegate refused to grant the visas on 29 October 2018 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 consider that the evidence and information provided to the department in association with the visa application was sufficient to demonstrate that the parties have ever been, or intend to be in a genuine and continuing relationship.

4. The review applicant appeared before the Tribunal on 25 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant: 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. The representative attended the Tribunal hearing.

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

   BACKGROUND

7. The  first named visa applicant (the applicant) is a national of Vietnam and is currently 52 years old. The second named applicant, his son, is 15 years old. The third named applicant, his daughter, is 20 years old. The applicant was previously married to Ms Thi Kieu Oanh Nguyen from December 2002 to 24 December 2014, with that marriage ending by divorce.

8. The review applicant (hereafter referred to as the sponsor) was born in Vietnam and is currently 52 years old. She first arrived in Australia in June 1992 and became an Australian citizen by grant in 1998. The sponsor’s first marriage ended when she was widowed in 2008. There were two children from that relationship, a daughter aged 26 years and a son, aged 21 years.

9. Information provided in association with the visa application indicates that the parties claim they first met on 12 January 2015, when the sponsor was visiting Vietnam. She returned to Australia on 8 February 2015 and subsequently, during a further trip she made to Vietnam the applicant proposed marriage  on 6 July 2015  and the parties made a commitment to a shared life together to the exclusion of all others. The sponsor  gave evidence at hearing that she last had person to person contact with the applicant in 2016, when she again returned to Vietnam for a brief holiday.

10. Evidence provided to the Department in association with the visa application includes, but is not limited to:

    ·Documents regarding the identity, household registration and marital status of the parties and secondary visa applicants.

    ·Relationship statement of the applicant, with translation, dated 5 January 2017;

    ·Relationship statement of the sponsor, with translation, undated – translated 7 July 2017;

    • Form 888 statutory declaration, with translation, by a supporting witness, Thi Thanh Khiet Nguyen, dated 11 May 2017;

    ·Form 888 statutory declaration, with translation, by a supporting witness, Thi Hong Yen Nguyen, unsigned and not dated;

    ·Photographs;

    ·Communications records, for an unidentified phone account covering period January 2016 to July 2017

    ·Untranslated text messages – between unidentified parties, covering period May 2015 to May 2017.

    ·NSW Department of Justice Registry of Births, Deaths and Marriages – Notice of Intended Marriage (NOIM), dated 2 August 2017 – valid till 1 February 2019 with intended marriage date identified as 25 August 2018

11. Evidence provided to the Tribunal prior to  and following the hearing includes, but is not limited to:

    ·Written submission from the representative, dated 4 September 2023;

    ·Untranslated communication records covering period 2018 to 2023;

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant and sponsor have a genuine intention to marry and live together as spouses.

13. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing.

14. Clause 300.221 requires that, at the time of decision, the visa applicant continues to satisfy the criteria in cls 300.211, 300.214, 300.215 and 300.216. Those criteria require that, at the time the visa application was made, the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; the parties have met and are known to each other personally; the parties genuinely intend to marry and intend to do so during the visa period; and the parties genuinely intend to live together as spouses. Accordingly, in order to determine whether the visa applicant continues to meet those requirements, it is first necessary to consider whether they were met at the time of the visa application.

    Does the visa applicant intend to marry an eligible person?

15. 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.

16. The sponsor became an Australian citizen in 1998. The parties provided the Department with a Notice of Intended Marriage issued by NSW Births, Deaths and Marriages which indicated that the parties intended to marry in  August 2018. Accordingly, the requirements of cl 300.211 are met.

    Have the applicants met in person and are they known to each other personally?

17. Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally.

18. The Tribunal has reviewed the available evidence, including photographs of the applicant and sponsor in each other’s company. The Tribunal is satisfied the parties, since each of them turned 18, have met and are known to each other personally.

19. Therefore, at the time of application, the requirements of cl 300.214 were met

    Do the parties genuinely intend to marry?

20. 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.

21. The Tribunal notes that the applicant provided evidence of the parties’ intention to marry in the form of a Notice of Intended Marriage issued by NSW Births, Deaths and Marriages which indicated that the parties intended to marry in  August 2018. There is no indication on the Notice of Intended Marriage as to where the marriage was to occur and no other evidence as to arrangements made for a marriage and associated wedding celebrations in Australia in the event the visa was approved.

22. The Tribunal wrote to the sponsor on 8 November 2018 and 12 May 2021 to inquire as to whether the parties had progressed their relationship to marriage, due to possible implications this may have in relation to the review application.  No response was received to these inquiries.

23. At hearing the applicant gave evidence that if the Visa is granted it will come to Australia and work and marry the sponsor. No evidence as to more specific arrangements for a marriage or wedding celebrations in Australia were provided by either the applicant or sponsor at the hearing or in submissions filed with the Tribunal in association with the review application.

24. In response to a question at hearing about the lack of witness support declarations, more recent than those provided to the Department in 2017, the sponsor gave evidence that they had not organised a formal ceremony to announce their relationship to their respective families and that is why relatives have provided no more recent comment about their relationship. When asked why they had not told their relatives about the parties relationship and intention to marry, the sponsor modified her evidence and said that actually they had announced the relationship to both of their families that had not told any of their friends about the relationship.

25. In response to the Tribunal raising concern that there was insufficient evidence to support the claim that the parties were in an ongoing relationship with a genuine intention to marry and live together in the sponsor gave evidence that in her view adequate evidence regarding this factor had been provided to the Department and Tribunal. When asked to comment on this concern, the applicant gave evidence that when the department made their decision to refuse a Visa he had to accept that decision but that his relationship with his sponsor is true and that they will live together.

26. The Tribunal, at hearing, invited the parties to comment on the concern arising from the lack of evidence which has been produced by the parties in response to allegations discussed in the delegate’s decision record that the applicant was continuing to reside with his previous spouse and that is divorce from his previous spouse was arranged only to facilitate the applicant’s migration to Australia. In relation to this issue the sponsor gave evidence that she trusts the applicant and that he told her he had divorced his previous wife a long time ago. The sponsor indicated that is all she wished to say about that issue. By way of his response, the applicant gave evidence that many people don’t like him in Vietnam and that was why someone had alleged his relationship with the sponsor was contrived.  The applicant gave evidence that his relationship with the sponsor is genuine.

27. The Tribunal accepts that evidence is on the Department file which appears to indicate that at the time of application the parties had an intention to marry. However the Tribunal is not satisfied that there probative evidence to establish that intention was genuine. Informing this view the Tribunal did not find the parties evidence at hearing persuasive about their intention to marry or in relation to comments they made about the concerns discussed above. Accordingly the Tribunal finds the requirements of cl 300.215(a) are not satisfied. The applicant contends that the parties will arrange a marriage shortly after the applicant arrives in Australia should a visa be granted, however the Tribunal is not persuaded there is sufficient evidence to be satisfied  that a proposed date for the marriage will occur within the visa period as required by cl 300.215(b). Therefore, the requirements of cl 300.215 are not met.

    Do the parties genuinely intend to live together?

28. In the interests of thoroughness, the Tribunal also considered whether there is sufficient evidence to be satisfied that the parties genuinely intend to live together .

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

30. 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

31. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses.

32. At hearing the parties the sponsor gave evidence that the parties have no shared assets liabilities or legal obligations with respect to each other. She gave evidence that the parties do not pool their financial resources and do not have shared banking accounts or other such financial arrangements. The sponsor gave evidence that she and the applicant pay their own day-to-day household expenses from their respective employment income is and that they are self-reliant financially in their respective countries.

33. The delegate noted that one undated money transfer receipt, showing a total of approximately $200 was remitted to the applicant from the sponsor, was provided to the department in association with the Visa application.

34. As the parties have lived in different countries throughout their relationship, the Tribunal acknowledges the financial aspect of their relationship may be quite different to those of the two people residing in the one country. Notwithstanding this factor, the Tribunal does not consider it appropriate to give positive weight to this aspect of the parties’ relationship.

    Nature of the household

35. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

36. The applicant and sponsor both have children from previous relationships. There is no evidence of financial support being provided by the sponsor for the purpose of supporting the applicant’s children, or of the applicant providing financial support for the sponsor’s children, both of whom are in any event now adults. The Tribunal is not satisfied there is evidence to support a contention the parties share care responsibilities in relation to their respective children.

37. On the basis of oral evidence the Tribunal accepts that the sponsor travelled to Vietnam on two occasions in 2017 and returned there again in 2016. The parties have not had direct contact with each other since July 2016 . The Tribunal acknowledges the parties contention that their capacity to spend time with each other was constrained by travel restrictions associated with the Covid 19 pandemic and accepts that this would have potentially constrained their ability to have person-to-person contact since 2020.

38. The parties gave consistent evidence at hearing that the sponsor has had limited opportunity to return to Vietnam on a regular basis because of her employment commitments and her commitment to supporting her children. The Tribunal did not find this contention persuasive, given neither of the year sponsor’s children are young and given she is in stable employment she would have had, with the exception of a period of time between 2020 and 2022 when restrictions on international travel may have been in place, opportunity to visit and spend time with the applicant during her periods of annual leave. This

39. The parties have not established a shared household and the context of their limited shared time together since 2015 does not, in the Tribunal’s opinion, make consideration of the degree of shared housework arrangements a useful indicator of this aspect of their relationship.

40. After reviewing the available evidence, the Tribunal does not consider it appropriate to give positive weight to this aspect of the parties’ relationship.

    Social aspects

41. The Tribunal has considered the social aspects of the relationship – including whether the parties represent themselves to other people as being in a committed relationship with an intention to marry; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

42. The Tribunal has concern that no witness support statements or declarations were provided in association with the review application. The Tribunal has also reviewed the Form 888 statutory declarations provided to the Department with the visa application. The Tribunal does not find these declarations persuasive due to their generic and brief nature and due to one of the declarants, the applicant’s sibling Thi Thanh Khet Nguyen providing their opinion the relationship is genuine despite not having had the opportunity to observe the parties together in each other’s company. The evidence of the sponsor at hearing is that the parties have at no stage represented themselves to friends as a couple with an intention to marry . As a consequence, there is no indication the parties have represented themselves to their relatives as a couple in a committed relationship with an ongoing intention to marry, at any time more recently than May 2017 and the witness support provided by the applicant’s sibling and their spouse is in the view of the Tribunal less than persuasive.

43. The Tribunal has reviewed the photographs provided in association with the visa application and accepts they show the applicant and sponsor together and together in the company of other people in a variety of settings. It is unfortunate that the photographs are not dated or otherwise contextualised and it is not clear who the people in the photographs with the parties are.

44. When considered as a whole, the Tribunal has concern with regard to the social aspects of the parties’ relationship. There is no convincing evidence that members of their immediate or extended families support the parties’ relationship or attest to the parties having a genuine intention to marry. There is no indication of the views of friends or acquaintances with regard to the parties relationship. Whilst there is photographic evidence of the parties having contact with other people, the Tribunal considers such evidence to be of limited value, as it can be as easily staged as reflecting genuine situations. The evidence at hearing of the sponsor is that she has not had person-to-person contact with the applicant since 2016 and on that basis it is apparent the parties have not planned or undertaken shared activities has a couple of past seven years. Accordingly, the Tribunal does not consider it appropriate to give positive weight to this aspect of the parties’ relationship.

    Nature of the commitment

1. The Tribunal has considered the nature of the persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

2. The parties claim that they have been in a committed relationship since July 2015.

3. The parties have not lived together in a shared household and their claim to periods they have stayed together during the sponsors trips to Vietnam in 2015 and 2016 cumulatively amount to only a limited period of time.

4. The parties claim to communicate with each other on a daily basis and have provided communication records of a sort to support this claim. These communication records consist of extracts from what appear to be mobile phone records from an unidentified phone account which provide no insight into who made calls or the content of such calls. Copies of untranslated text and electronic messages have also been provided. The Tribunal notes that despite the concern raised in the delegate decision record as to evidence of this type not been able to be authenticated, similar documentary evidence was provided in association with the review. Indeed further copies of untranslated communication records were provided post hearing, despite the Tribunal explaining the limited evidentiary value of such untranslated evidence.

5. As to the degree of companionship and emotional support in the relationship, the Tribunal did not find the evidence provided at hearing persuasive, including the reasons for their lack of actual direct contact with each other since 2016, there explanation for not progressing their relationship to a marriage or for not holding the sort of celebration that would usually be associated with becoming engaged. The Tribunal is not satisfied the parties have demonstrated through credible evidence that there is a significant degree of emotional support and companionship in their relationship. In forming this view the Tribunal has taken into account the paucity of reliable evidence about the parties’ communication with each other over the majority of the period in which they have claimed to be in a committed relationship.

6. The Tribunal is not satisfied the parties are sincere in their wish to marry and establish a household together in Australia. The Tribunal is not satisfied that the parties consider their relationship as long‑term.

   Assessment of intention to live as spouses

7. The Tribunal is aware of the principles established by the Family Court of Australia In the Marriage of Pavey (1976) 10 ALR 259 whereby ‘what comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage.’ The Tribunal considers the principles established in Pavey are broadly consistent with the matters outlined in the Act as appropriate considerations to be undertaken, in relation to the current visa class, when making a determination about the genuineness of a relationship, or the related issue of whether there is a genuine intention to live together as spouses. The Tribunal agrees with the principle that a wide range of factors need to be considered in any given case, taking into account the degree to which these factors may be applied to determine a future intention.

8. The Tribunal is not satisfied the evidence that is before it supports a finding that the applicant and sponsor have a mutual commitment to a shared life as spouses. As discussed in this decision, consideration of the financial and social aspects of the parties’ relationship, and of the nature of their household arrangements provide no credible indication that they are in a genuine relationship. In the view of the Tribunal this is so even when consideration is given to their not residing in the same country and the impact this and the and the Covid – 19 pandemic has on consideration of the factors outlined in reg 1.15A. The lack of credible evidence of familial support for the relationship and the rapid development of the relationship and the limited time the parties have spent in each other’s company are of particular concern to the Tribunal. In conjunction with the other factors discussed in the decision the concerns held by the Tribunal outweigh the positive weight given to the duration of the relationship and the limited weight given to the photographic evidence.

9. In summary and having regard to the considerations set out in reg 1.15A(3) for spousal relationships, the Tribunal considers there is insufficient evidence to demonstrate that the applicant and sponsor have a genuine intention to live together as spouses. The applicant therefore does not meet cl 300.216 and cl 300.221.

10. As the Tribunal does not accept that the applicant satisfies the primary criteria, the second named visa applicant is unable to meet cl 300.321 because they are not members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl 300.221.

11. For the reasons above, the Tribunal finds the visa applicants do not satisfy the criteria for the grant of the visas.

    DECISION

12. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    David Barker
    Member