Nguyen (Migration)

[2023] AATA 241

Nguyen (Migration) [2023] AATA 241 (7 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Duc Qui Nguyen

VISA APPLICANTS  Ms Thi Phuong Loan Nguyen

Miss Quynh Nhu Vo
Master Minh Tien Vo

CASE NUMBER:  2016430

HOME AFFAIRS REFERENCE(S):          BCC2019/6790850

MEMBER:Peter Emmerton

DATE:7 February 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl 300.215 of Schedule 2 to the Regulations

·cl 300.216 of Schedule 2 to the Regulations

·cl 300.221 of Schedule 2 to the Regulations

The Tribunal finds that the secondary applicant’s applications should be considered in the context of the delegate’s decision regarding the primary applicant satisfying the remaining criteria for a subclass 300 visa.

Statement made on 07 February 2023 at 12:43pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry within visa period and live together as spouses – civil ceremony in home country not valid for purposes of Act – recognition of relationship by family, friends and community – multiple visits before COVID travel restrictions and work commitments – additional documentation and credible and persuasive oral evidence – limited opportunities for financial, household and social aspects of relationship while living in different countries – nature of commitment – members of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2)(a), 65

Migration Regulations 1994 (Cth), r 1.15A(3), (4), Schedule 2, cls 300.215, 300.216, 300.221, 300.311

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 December 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. The delegate refused to grant the visas on 30 October 2020 on the basis that the first named visa applicant did not satisfy cl.300.215 and cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant and the review applicant genuinely intended to marry within the visa period and live together as spouses.

4. The review applicant appeared before the Tribunal, via video, on 7 February 2023 to give evidence and present arguments. The Tribunal also took evidence from the primary visa applicant, Ms Thi Phuong Loan Nguyen via video. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was not represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is are whether the parties genuinely intend to marry and to live together as spouses.

8. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

10. Ms Thi Phuong Loan Nguyen lodged a valid application for a Prospective Marriage (Temporary) visa on 20 December 2019 on the grounds of having the intention to marry an Australian citizen, Mr Duc Qui Nguyen, who lodged a sponsorship in support of the application.

11. The applicant was represented by a migration agent based in Vietnam and therefore Form 956 was not completed nor lodged with the application.

12. The couple held a civil marriage ceremony/celebration in the presence of friends and family in Vietnam in November 2019. The Tribunal notes that this is not a registered marriage recorded by the country officials. No Certificate is available to verify the veracity of the “married status” and therefore, the acknowledged ceremony does not reach the threshold of a marriage for the purposes of immigration. On the evidence, the parties are not married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

13. It is noted by the Tribunal that the couple have spent time together in Vietnam on 6 occasions including the first meeting, between July 2018 and November 2019. It is observed that the last trip was shortly before the Covid-19 pandemic commenced, at which time international travel was impossible as a direct result of the global border closures and associated measures designed to limit the spread of the virus. These measures were imposed by both countries and Vietnam was suffering substantial outbreaks of the virus well into late 2022 with substantial mortality. The Tribunal accepts as fact that the sponsor is undergoing a promotion and associated training at work and has therefore been unable to travel post the Covid-19 lockdowns. He acknowledged during the hearing that they were now awaiting the Tribunal’s decision before they plan their next travel arrangements.

14. According to departmental records the visa applicant has not travelled to Australia. This was acknowledged by the sponsor during the hearing.

15. The Department file contained the following documentation:

    ·Department request for biometrics

    ·Partner visa application

    ·Wedding receipt dated 20/11/2019

    ·Decision to Recognise Divorce consent – The People’s Court of Binh Chanh District, Ho Chi Minh City dated 21/12/2012

    ·Certificate of Marital Status, dated 2/12/2015 – (Vietnam)

    ·Wedding photos – various

    ·Department Request for more information, dated 17/07/2020

    ·Department request for explanation (missing documents) dated 17/07/2020

    ·Household documents and identification documents

    ·Department request for re-upload of illegible documents dated 23/09/2020

    ·Applicant biometrics

    ·Sponsorship application form

    ·Department Decision (refusal) dated 30/10/2020

16. The following evidence, in addition to the documentation provided to the delegate and the department was provided to the Tribunal prior to the hearing:

    ·Statement of relationship Duc Qui Nguyen - Undated, received as recent submission to AAT

    ·Money transfers totalling AUD $7,910 as detailed below:

    ·AUD $1000 – Cat Tuong Internation  - Mawson Lakes, 6/2/2020

    ·AUD $1205 – Cat Tuong Internation  - Mawson Lakes, 4/5/2020

    ·AUD $1205 – Athol Park Supermarket – Athol Park 08/07/2020

    ·AUD $1000 – Athol Park Supermarket – Athol Park 29/11/2021

    ·AUD $1200 – Athol Park Supermarket – Athol Park 09/01/2022

    ·AUD $300 – Athol Park Supermarket – Athol Park 22/02/2022

    ·AUD $500 – Athol Park Supermarket – Athol Park 500

    ·AUD $500 – Athol Park Supermarket – Athol Park 24/08/2022

    ·AUD $1000 – Athol Park Supermarket – Athol Park 25/12/2022

    ·Photographs of applicants and evidence of hotel stay, Saigon

17. 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. 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?

18. 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. Departmental records indicate that the declared sponsor, Mr Duc Qui Nguyen is an Australian Citizen by conferral. Accordingly, the requirements of cl 300.211 are met.

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

19. 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. Photographic evidence, travel movement records, Statutory Declarations and personal statements indicate that the parties have met in person. The first in-person meeting is claimed to be July 2018 when the sponsor visited Vietnam with 5 subsequent visits. There is no evidence before the Tribunal to counter that assertion.

20. The Sponsor Mr Duc Qui Nguyen was born in 1969 and the first named applicant was born in 1982, it is clear that both parties were more than 18 years of age upon meeting. Therefore, at the time of application, the requirements of cl 300.214 were met.

    Do the parties genuinely intend to marry?

21. 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.

22. The Tribunal notes that substantial photographic evidence has been supplied showing elements of traditional civil wedding ceremony activities and the attendance of friends and family at the associated events. Evidence was tended regarding the choice of venue for the ceremony and celebrations. The Tribunal notes that this is not the first marriage for either of the parties and its knowledge of such circumstances suggest the celebrations will be somewhat less elaborate but will still contain the essential elements. These elements were evident in the photographs received by the Tribunal prior to the hearing. The Tribunal believes it is unlikely that such elaborate celebrations involving venerable members of the immediate family and friends would take place without a genuine intention of marriage, as the associated shame of such a sham would be extremely counter-cultural. This assessment was tested and satisfactorily responded to during the hearing.

23. The Tribunal notes and accepts as fact the certification issued by Births, Deaths and Marriages Registration Office, Adelaide SA, dated 6 February 2020, stating a ceremony was intended before 6 August 2021. This clearly could not have taken place due to the border restrictions in place at the time which are circumstances beyond the control of the couple. The Tribunal acknowledges that a fee to register this intended marriage was paid by the sponsor. Again this verified at the hearing.

24. The Tribunal is satisfied that at the time of application, the parties had a genuine intention to marry and the requirements of cl.300.215(a) are satisfied. The proposed date for the marriage as stipulated by the sponsor and tested at the hearing, is within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together?

25. 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.

26. The Tribunal, as previously stated, has had the benefit of taking evidence from the sponsor and the primary visa applicant at the hearing. The Tribunal found their presentation of evidence to be credible and persuasive. Answers were provided in what appeared to be an honest and candid fashion without any apparent obfuscation or collusion. The Tribunal has considered all aspects of the relationship.

27. 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

28. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, any legal obligations and the sharing of daily household expenses. In relation to the pooling of financial resources, evidence was provided at the hearing and supported by Tax Invoices and Money Transfer receipts prior to the hearing, which demonstrated a substantial sum of money being transferred on a regular basis to the visa applicant, from the sponsor as detailed in paragraph 16 over an approximate 3-year time span.  The payments commenced shortly after the time of their marriage ceremony and continue into late December 2022.

29. The Tribunal notes the receipt provided which demonstrates the hiring of wedding outfits, flowers, makeup for the bride etc. This was acknowledged at the hearing. The dates correlate and the charges are in-line with the Tribunal’s expectations for such an event.

30. There is no evidence of joint property or other asset ownership which is not surprising as the couple both have relatively modest incomes whilst they reside in two different countries. The Tribunal acknowledges that no evidence of joint liabilities, or legal obligations was provided by any party. Daily household expenses are in part being paid for by the sponsor, as the money he sends to the visa applicant is used for various aspects of the visa applicant’s family living expenses. The Tribunal is acutely aware of the unequal financial resources capacity of individuals living in Vietnam compared to individuals living in Australia and therefore would not expect to see reciprocal financial arrangements and transfer of funds to the sponsor. No evidence of any legal liabilities is evident to the Tribunal. The Tribunal places substantial weight on this aspect of the relationship with a focus on the magnitude of remittances to the visa applicant over a substantial time span.

    Nature of the household

31. When assessing the nature of the household the Tribunal has considered the domestic living arrangements, shared household duties, daily routines and caring for children. The Tribunal notes that the couple have had only relatively brief periods of co-habitation on 4 occasions when the sponsor has visited Vietnam and stayed in the visa applicant’s home. The officially acknowledged Sponsor’s Temporary residential arrangements with the family in the visa applicant’s home is considered significant as it is a very public declaration to both officials supervising their village and the friends, neighbours and extended families of their relationship status. If it was not considered by the community, government officials and respective family members that the couple were in a genuine relationship, as in part demonstrated by their public marriage celebrations there would be social ramifications. This was canvassed during the hearing.

32. The Tribunal accepts the claims made during the hearing that the household duties are shared between the couple when they are together, both parties acknowledging that the primary applicant contributes most substantially to meal preparation aspects of their relationship, when they are together. The Tribunal also acknowledges that the children of the applicant when domiciled in the family home would be expected to actively participate in household duties according to traditional roles as understood by the Tribunal.

33. The Tribunal also explored any caring responsibilities being undertaken by the sponsor in relation to visiting his prospective wife and family. The corroborated evidence satisfied the Tribunal that some minor responsibility at an appropriate level is being executed in relation to the applicant’s children noting the current ages are 19 and 15 respectively. The Tribunal established through individual questioning, that some discussions had taken place around schooling and future study aspirations and work in the case of the eldest child accompanying the visa applicant. Aside from these aspects it was clear that the applicant’s children, as much as required, are cared for by their mother. The Tribunal notes a genuine fondness expressed by the sponsor when questioned about his prospective stepchildren. The Tribunal accepts as reasonable that the primary applicant has had minimal opportunity to establish a meaningful relationship with the sponsor’s child as she has not yet visited Australia and he is a mature adult pursuing tertiary studies. When taking into account the geographic separation of the couple, the Tribunal places moderate weight on this evidence in support of the intended spousal relationship.

    Social aspects

34. In assessing the social aspects of the relationship, the Tribunal has considered social interactions, evidence of joint social activities, representation of their relationship to others and recognition of the relationship by friends and family. The delegate was not satisfied that this aspect of the relationship was adequately demonstrated as minimal evidence had been presented. The Tribunal was presented with substantially more photographic evidence than was provided to the delegate, detailing the traditional civil marriage ceremony and celebrations and a range of social activities involving close family and friends. The range and nature of the photographs would have made staging practically impossible. Statements from the applicants attest to the genuineness of the couple’s relationship. This was corroborated during questioning at the hearing.

35. The Tribunal acknowledges the extent of both sides of the family’s participation in the celebrations. This is not something taken casually in the Vietnamese culture in the Tribunal’s previous experience.

36. The Tribunal again acknowledges the limited time periods covered due to the couple living in separate countries, within that context the Tribunal is satisfied that the evidence is substantial and considerable weight is placed upon it.

    Nature of the Commitment to each other

37. When assessing the nature of the persons’ commitment to each other the Tribunal has considered the relationship development, how long they have lived together and whether the relationship is viewed by them as long term. The Tribunal notes that this relationship, has been ongoing for a period of 4.5 years from the initial meeting in 2018, enduring until the current day. It also notes the relatively substantial financial commitment by the sponsor post the couple’s public display of marriage.

1. The sponsor has not been able to spend extended periods of time staying with his intended spouse due to the health constraints enforced by both Governments in response to the Covid-19 pandemic. This has been further hampered by the promotion training currently being undertaken by the sponsor with his building company employer. This was corroborated at the hearing as well as demonstrated by a current series of Pay Slips clearly demonstrating a remuneration level commensurate with a supervisory level role.

2. It is noted however that the sponsor has travelled to meet with his intended spouse 6 times within less than a 2-year period, until Covid-19 changed his capacity to do so. The demeanour of the sponsor reinforced the Tribunal’s observation that they appear to view the relationship as long term and wish to engage in a genuine spousal relationship as soon their geographic circumstances permit.

3. The Tribunal was provided with a substantial amount of evidence in the form of ‘sms’ messaging evidence and associated imbedded photographs and call records, which had not been provided to the delegate, in support of the assertion that communication has been ongoing over a substantial period. The Tribunal places moderate weight on the nature of the person’s commitment to each other as evidence in support of their intention to live in a genuine spousal relationship as soon as practicable.

4. 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?

5. 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.

6. For the reasons set out above the Tribunal is satisfied that at the time of decision, the parties genuinely intend to marry and intend to do so during the visa period (cl.300.115) and that the parties genuinely intend to live together as spouses (cl.300.116).

7. Based on the evidence before it, the Tribunal is also satisfied that at the time of the decision, the visa applicant intends to marry a person who is an Australian citizen (cl.300.211(b)) and that the visa applicant and the review applicant have met each other in person since each of them turned eighteen and are personally known to each other(cl.300.214).

8. 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 in respect to all applicants.

   Decision

9. The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

   ·cl.300.115 of Schedule 2 to the Regulations

   ·cl.300.116 of schedule 2 to the Regulations

   ·cl.300.221 of schedule 2 to the Regulations

   ·The Tribunal finds that the secondary applicant’s applications should be considered in the context of the delegate’s decision regarding the primary applicant satisfying the remaining criteria for a subclass 300 visa.

   Peter Emmerton
   Member