Nguyen (Migration)

[2022] AATA 3272

Nguyen (Migration) [2022] AATA 3272 (29 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tai Nguyen

VISA APPLICANT:  Ms Kim Nga Ly

REPRESENTATIVE:  Mr Christopher Toogood (MARN: 9579948)

CASE NUMBER:  1830334

HOME AFFAIRS REFERENCE(S):          BCC2017/3847457

MEMBER:Edward Howard

DATE:29 August 2022

PLACE OF DECISION:  Brisbane

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:

·clauses 300.211, 300.214, 300.215 and 300.216 of Schedule 2 to the Regulations

·clause 300.221 of Schedule 2 to the Regulations

Statement made on 29 August 2022 at 9:36am

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuinely intend to live together as spouses – review applicant’s frequent trips to Vietnam – evidence of communication – wedding arrangements – extensive money transfers – companionship and emotional support – joint social activities – decision under review remitted     

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 300.211, 300.213-300.216, 300.221; r 1.15

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 19 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 visa on 20 September 2018 on the basis that the visa applicant did not satisfy clauses 300.215, 300.216 and therefore 300.221 of Schedule 2 to the Regulations.

4.    The review applicant appeared before the Tribunal on 15 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Ms Kim Nga Ly. 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 matter should be remitted for reconsideration.

BACKGROUND

7.    The visa applicant is Ms Kim Nga Ly, aged 29, a citizen of Vietnam and the review applicant is Mr Tai Nguyen, aged 61, an Australian citizen. At the time of the visa application in October 2017, the parties claimed to have met in January 2016 at a restaurant in Ho Chi Minh City, where the visa applicant was working as a waitress. The review applicant was visiting family and friends in Vietnam at the time. The parties claimed to have spoken to each other and exchanged telephone numbers and then proceeded to spend considerable time together until the review applicant returned to Australia on January 27, 2016. The parties claimed to have maintained regular contact after the review applicant’s return to Australia. During their time apart, the parties discussed the relationship and were able to meet again in July 2016 when the review applicant returned to Vietnam to visit the visa applicant. The parties claimed to have made a commitment to each other to marry and live together in Australia.

ISSUES AND LAW

Do the parties genuinely intend to live together as spouses?

1. 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).

9.    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.

1. The issue in the present case is whether at the time of the visa application and the time of this decision, the visa applicant and the review applicant genuinely intend to live together as spouses. 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: per reg 1.15A(4).      

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; any sharing of day-to-day household expenses.

1. The evidence of the review applicant is that he commenced working as a tiler after his arrival in Australia in 1992. He is employed on a full time basis and expects to earn approximately $800.00 net per week. The visa applicant is a nail technician and also works full time. The evidence of both parties is that the review applicant commenced sending money to the visa applicant in 2016 after he returned to Australia.

2. The evidence of the parties is that the funds received assist the visa applicant to pay for her rent, food and clothing. Additionally, the funds assisted the visa applicant in completing her training to be qualified as a nail technician. It is her intention to obtain work in this field in the event she is granted a visa. The review applicant’s evidence is that as he made a commitment to the visa applicant, he is happy to help her financially. Initially, the review applicant was transferring his payments to the visa applicant through an intermediary (an agent) but later he commenced sending the funds directly to her bank account. This was especially important as the pandemic caused the visa applicant to lose her employment for a period of time and she was forced to leave Ho Chi Minh City and return to the country to reside with her parents. Therefore, she was very dependent on the monies sent by the review applicant during this period.

3. The parties have provided transfer documentation of transfers commencing in May 2017 and now totalling approximately $38,000.00. In addition, the parties provided evidence of approximately $36,000.00 spent by the review applicant on trips to Vietnam to visit the visa applicant. The visa applicant’s current monthly income from her employment is about $3 million Vietnamese Dong or AUD$184.00, so that the funds sent by the review applicant provide a great benefit to her. The Tribunal places weight upon the review applicant’s significant financial contributions to the visa applicant over a period of more than six years.

4. The review applicant’s evidence was that he was forced to sell his home during the pandemic due to a significant reduction in work. The parties’ plan is to rent at first, then eventually when the visa applicant obtains employment, they will be in a position to buy a home.

5. Whilst the Tribunal finds that there is no evidence provided of joint ownership of assets, joint liabilities or any legal obligations owed to the other party at this time, the parties do pool financial resources and partially share household expenses by way of the review applicant depositing funds into the visa applicant’s account to be used by the visa applicant for living and everyday expenses. The Tribunal accepts that, due to the fact that the parties live in different countries, the financial aspects of relationship are limited and the parties have no liabilities nor owe legal obligations to the other party. The Tribunal places weight on the financial information provided by the applicants.

Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

1. The evidence of the parties is that they met on 5 January 2016 and commenced a personal relationship on 8 January 2016. They then spent considerable time together until the review applicant returned to Australia on 27 January 2016. The parties then spent further time together upon the review applicant returning to Vietnam in July/August 2016 for a period of 45 days. The review applicant then made a further four trips to Vietnam between December 2016 and 2019. Following the pandemic, the review applicant travelled to Vietnam in April 2022 for a period of approximately eight weeks. The evidence of the parties is that during the review applicant’s visits to Vietnam, they spent their time together, including staying at the residence of the visa applicant and her sister on occasions. The parties shared expenses during these periods .

2. It is the evidence of the parties that they will rent a property in Australia initially and then purchase a home once they are able to afford it.

3. The Tribunal accepts that due to the fact that the parties live in different countries, the household and living arrangement aspects of relationship are limited. However, the parties did spend considerable time together during the review applicant’s trips to Vietnam since 2016. The parties do not have responsibility for the care and support of any children. The visa applicant informed the Tribunal that her son died in 2017. The review applicant’s children live with their mother and only the youngest child will occasionally stay with him. The Tribunal places limited weight on the nature of the parties’ household.

Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; 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.

1. The parties submitted photographs of themselves during the times they have spent together in Vietnam. They included photos of social activities and outings, such as dining at restaurants, sightseeing, and at other venues. The photographs include those taken together as a couple as well as with other people.

2. The review applicant’s brother, Mr Nguyen Than Thu, provided a statement detailing his contact with his brother and the visa applicant. He states that he accompanied his brother and the visa applicant when they travelled to their home town in July 2016 to meet the review applicant’s family, where they stayed for six days. Further, he states that the review applicant took his brother’s sons on a trip in December 2016 and this included visiting the visa applicant and staying with her family. He confirms that he attended the engagement ceremony of the parties in their family’s homeland of Quang Ngai Province on 9 January 2017.

3. A statement was also provided by Mr Nguyen Xuan Man, the review applicant’s nephew who accompanied the review applicant to the restaurant where the parties initially met each other. Mr Man states that when the review applicant returned to Vietnam in December, he socialised with the parties including dining with them. This interaction continued with each visit from the review applicant in 2017, 2018 and 2019.

4. Another nephew of the review applicant, Mr Nguyen Van Linh, also provided a statement relating to his meeting and socialising with the parties in Vietnam in 2016, 2017, 2018 and 2019. This included an occasion during which the visa applicant was introduced to various family members, and in which Mr Nguyen Van Linh and his wife were in attendance.

5. A statement was provided by the visa applicant’s sister, Ms Ly Quoc Thinh, detailing her meeting of the review applicant in July 2016 when he was introduced to the visa applicant’s family. Ms Thinh subsequently met the review applicant on several of his visits to Vietnam in December 2016, April 2017 and January 2019. Ms Thinh confirms that the parties stayed at her residence in January 2019. Ms Thinh was unable to attend the engagement ceremony in January 2017 due to work commitments.

6. From the above evidence, the Tribunal places weight on the parties’ evidence that whilst in Vietnam, the parties represented themselves to each other’s families and friends as a couple in a relationship and planned and undertook joint social activities during those visits by the review applicant, including their engagement ceremony in January 2017. The Tribunal is of the view that the evidence establishes that family, friends and acquaintances of the parties are of the opinion that their relationship is that of a couple in a committed relationship. The Tribunal is satisfied that the evidence at the hearing and the documentary evidence provided, demonstrates a genuine and continuing relationship between the parties. The Tribunal places weight on the social aspects of the relationship.

Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

1. The parties claimed to have met in January 2016 at a restaurant in Ho Chi Minh City, where the visa applicant was working as a waitress. The review applicant was visiting family and friends in Vietnam at the time. The parties claimed to have spoken to each other and exchanged telephone numbers and then proceeded to spend considerable time together until the review applicant returned to Australia on January 27, 2016. The parties claimed to have maintained regular contact after the review applicant’s return to Australia. During their time apart, the parties discussed the relationship and were able to meet again in July 2016 when the review applicant returned to Vietnam to visit the visa applicant. The parties claimed to have made a commitment to each other to marry and live together in Australia.

2. The parties provided evidence by way of phone and messaging records of their long term and regular contact with each other while living apart. The review applicant has visited Vietnam on seven occasions to visit the visa applicant, including to celebrate their engagement ceremony. These trips disclose a commitment to the visa applicant and have required a financial commitment from the review applicant. The monetary support provided by the review applicant assisted the visa applicant to finish her qualification and pay for expenses during the pandemic and has totalled approximately $38,000.00 over a six year period, a not insignificant sum when the review applicant earns $800.00 net per week.

3. The parties gave evidence that they each receive companionship and emotional support from the other. The visa applicant described how they talk regularly and share their emotions. He provided support to her after the sudden death of her son, including financial support to pay for the funeral and also following the death of her father. Recently, the review applicant was forced to sell his home and the visa applicant gave evidence that they talked at length about this event and his divorce. They both gave evidence that the age difference between them is of no concern. They talk regularly, about what they each doing, their work and daily activities such as food and cooking.

4. The review applicant gave evidence that the parties’ intention is to hold their wedding ceremony within one month of the visa applicant arriving in Australia. They have arranged a celebrant, Mr Hoa Thien Lan, and will hold a wedding reception at a restaurant in Inala.

5. The Tribunal considers that the parties evidence supports a view that they are committed to a genuine and continuing relationship as a married couple once the visa applicant is able to travel to Australia. The Tribunal places weight upon their commitment to each other over a period of six and a half years since their initial meeting by reference to their ongoing regular communication with each other and their respective family members; the seven trips made by the review applicant (both before and after the intervention of Covid-19 travel restrictions); the time spent together in Vietnam; and the significant financial contributions made by the review applicant to support the visa applicant. The parties’ evidence supports a view that they are committed to a long-term relationship.

6. 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:

   (a) The Tribunal considers that the evidence of the financial aspects of the relationship disclose the willingness of the parties to pool their funds by virtue of the extensive transfers made by the review applicant to the visa applicant over a period of more than six years, to assist her with living expenses and to complete her qualification, whilst she is on a very low income in Vietnam and the intention of the visa applicant to work in Australia and contribute financially to the relationship. Whilst the parties have been unable to develop any joint assets or have any joint liabilities or obligations to each other, the Tribunal accepts that this is a result of the parties living in different countries.

   (b) The Tribunal considers that the parties represent themselves to family and friends as being in a committed relationship, having held their engagement ceremony in 2017 and have socially engaged with family and friends and resided with them many times in Vietnam. The parties regularly talk together with family members, who have given their opinion of the committed nature of the relationship. The parties have organised and undertaken joint social activities and travel together as a couple. 

   (c) The Tribunal considers the parties’ evidence supports the view that they are committed to a genuine and continuing relationship and that they genuinely intend to live together as spouses. The Tribunal places weight upon their commitment to each other over a period of more than six years since their first meeting by reference to: the ongoing regular communication with each other and their respective family and friends; the trips made by the review applicant to Vietnam and the time spent together; and the financial contributions made by the review applicant to the visa applicant. The parties’ evidence supports the view that they are committed to a long-term relationship.

31. The Tribunal notes the decision of the delegate confirming that a sponsorship application was lodged in support of the applications. The attendance by the review applicant at Hearing and his evidence given confirms his continued sponsorship, thereby satisfying cl 300.213.

1. The evidence presented satisfies the criteria of meeting in person (cl 300.214(1)) and being known to each other personally (cl 300.214(2)).

2. Having regard to the documentary and oral evidence presented, the Tribunal finds that at time of application, the parties genuinely intended to marry and that the parties intended the marriage to take place in the visa period (cl 300.215) and further, that at time of application, the parties genuinely intended to live together as spouses (cl 300.216).

3. For these reasons, having regard to all the circumstances of the relationship on the evidence before it, including the matters contained in Regulations 300.211, 300.213, 300.214, 300.215 and 300.216, together with the matters contained in Reg 1.15A(3), to which the Tribunal may have regard (per Reg 1.15A(4), the Tribunal is satisfied: that, at the time of application,  the parties genuinely intended to marry; that the marriage was intended to take place within the visa period; and that the parties genuinely intended to live together as spouses.

1. On the basis of the above, the Tribunal is satisfied that the requirements of 300.211 were satisfied at the time of application.

2. Pursuant to clause 300.221, in order to be eligible for the grant of a subclass 300 (TO) visa, the visa applicant must also continue to meet the requirements of clause 300.211 and clauses 300.214, 300.215 and 300.216 at the time of this decision.

3. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant continues to meet the requirements of these clauses, hence satisfying the criteria in clause 300.221.

DECISION

1. 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:

   · clauses 300.211, 300.214, 300.215 and 300.216 of Schedule 2 to the regulations

   · clause 300.221 of Schedule 2 to the regulations

Edward Howard

Member