Or (Migration)

[2017] AATA 626

Or (Migration) [2017] AATA 626 (12 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Oeun Or

VISA APPLICANT:  Ms Leakhena Hok

CASE NUMBER:  1512504

DIBP REFERENCE(S):  OSF2014/051511

MEMBER:K. Chapman

DATE:12 April 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 12 April 2017 at 4:23pm

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – No genuine intention to live together as spouses – Credibility – Incorrect information to Department – Lack of commitment to relationship

LEGISLATION

Migration Act 1958, ss 5F, 5F(2)(a)-(d), 65
Migration Regulations 1994, Schedule 2 – cl 300.216, r.1.15A(3), r.1.15A(4)

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, Ms Leakhena Hok, applied for the visa on 24 November 2014. This application was sponsored by her fiancé, Mr Oeun Or (the ‘review applicant’ and sponsor). 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.

3. The delegate refused to grant the visa on 14 July 2015 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because of a lack of satisfaction concerning her and the review applicant’s genuine intention to live together as spouses. On 11 September 2015 the review applicant applied to the Tribunal for review of the visa refusal decision. He provided a copy of the delegate’s decision to the Tribunal with his application for review.

4. The review applicant and the visa applicant initially appeared before the Tribunal, in person and by telephone respectively, on 3 February 2017 to give evidence and present arguments. The review applicant was unrepresented and attended with his daughter as a support person. The Tribunal notes the review applicant previously had a representative, however they were no longer acting, and confirmed with him that he was unrepresented. During the initial review hearing the services of an interpreter in the Khmer and English languages were used. Following that hearing the daughter of the review applicant, who was authorised to receive communications on his behalf but who was neither a representative nor a witness, wrote to the Tribunal on 9 February 2017 alleging that the interpreter and review applicant knew each other well and as a result the interpreting was not conducted in an appropriate fashion. The Tribunal carefully considered the correspondence of the review applicant’s daughter and determined to hear the matter afresh at a rescheduled review hearing. Accordingly, the Tribunal has not had regard to the oral evidence obtained during the initial review hearing and scheduled a fresh review hearing with a new interpreter assisting by telephone from an interstate location. The Tribunal notes that it has considered the documentary evidence submitted by the review applicant at that initial review hearing and this material will be referred to in greater detail below.  

5. On 13 March 2017 the review applicant appeared before the Tribunal at the rescheduled review hearing to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The review applicant again attended with his daughter who acted as a support person. The Tribunal confirmed with the review applicant that he was unrepresented and that only he and the visa applicant would be giving evidence. The review applicant confirmed that he knew the interpreter from the initial review hearing and submitted he experienced difficulty with the interpreting as a result. At the rescheduled review hearing a new interpreter in the Khmer and English languages assisted the proceedings by telephone from an interstate location. The Tribunal asked the review applicant if he could understand this interpreter and he replied that he did. The Tribunal also confirmed that he was comfortable using the services of the new interpreter. Further, noting that the review applicant indicated he had a hearing difficulty in his latest response to hearing invitation, the Tribunal maximised the volume of the conference telephone equipment and confirmed that he was able to hear adequately. Accordingly, the Tribunal is satisfied that the review applicant was able to both hear and understand the interpreter used at the rescheduled review hearing. Further, the Tribunal is satisfied the new interpreter used was independent and that the review applicant was afforded a fair opportunity to present his case.

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

   BACKGROUND

7. The visa applicant, Ms Hok, is a 23 year old national of Cambodia. She has never travelled to Australia. Mr Or, the review applicant and sponsor, is a 61 year old eligible New Zealand citizen. According to the visa application and material in support, the visa applicant first met the review applicant in person during September 2012 in Cambodia, they fell in love shortly thereafter and on 19 January 2014 a formal engagement ceremony was held in Cambodia in the absence of the review applicant. The visa application states they planned to marry in Australia on 25 October 2014. There is no evidence before the Tribunal suggesting that the visa applicant and the review applicant have as yet been married.     

   ISSUES AND LAW

8. The Prospective Marriage (Temporary) (TO) visa is a visa for persons seeking to enter Australia to marry, after their first entry to Australia, an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse with a view to remaining permanently. In the present matter the review applicant is an eligible New Zealand citizen. The issue in the present case is whether the requirement in cl.300.216 is met, which requires the Tribunal to be satisfied that, at the time of the visa application, the visa applicant and the review applicant ‘genuinely intend to live together as spouses.’

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Do the parties genuinely intend to live together as spouses?

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).

10. 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 according to r.1.15A(4). Whilst 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 the legislation may assist in determining the parties’ aspirations.

11. The Tribunal had regard to all of the evidence before it concerning the time of application and the time of decision. The Tribunal notes that evidence including, but not limited to, the visa application form, sponsorship form, character assessment form, police clearance, supporting Statutory Declarations from third parties, correspondence outlining marriage ceremony arrangements, ‘No Record’ Result Search concerning prior marriage of the sponsor, proof of sponsor’s New Zealand citizenship, identity documents, family composition records, permission for the visa applicant to marry, personal statements, letters of confirmation concerning an engagement party, photographs and money transfer receipts were submitted by the visa applicant to the Department of Immigration. The Tribunal further notes that evidence including, but not limited to, telephone records, photographs and motel receipts was submitted by the review applicant to it prior to the initial review hearing. In addition, the Tribunal notes that at the initial review hearing the applicant submitted receipts for Telstra phone services, bank records, the hearing invitation, travel documentation, proof of sponsor’s New Zealand citizenship, ‘No Record’ Result Search concerning prior marriage of the sponsor, police clearance, photographs, letter of engagement, third party statements regarding the sponsor’s employment (in Statutory Declaration form and otherwise), letters of confirmation concerning an engagement party, identity documents, application for certification, personal statement, family composition records, engagement authorization, money transfer receipts and receipts for migration advisory services. The aforementioned material had been duly considered by the Tribunal. 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.

    Evidence of the review applicant (Mr Or)

12. The oral evidence of the review applicant may be summarised as follows. He met the visa applicant through family connections on 12 September 2012 during a visit to Cambodia of approximately one and a half months duration. He told the Tribunal he could see she was ‘very poor’, that he was in love with her and wanted to marry her. When asked by the Tribunal when he discussed marriage with the visa applicant he initially advised that it was after taking her to the Pagoda and Temple and presenting her with earrings, which occurred shortly after meeting her on that visit. He later indicated it was towards the end of that visit around one and a half months after meeting her. The review applicant confirmed that marriage was discussed during his trip to Cambodia in 2012. When the Tribunal raised with the review applicant that it appeared he discussed marriage with the visa applicant after knowing her for only a relatively short time, he responded that he had taken her to eight different places in Cambodia and loved her. When asked by the Tribunal if he had spoken to the visa applicant before meeting her in person, the review applicant variously responded that he had not, that he had, then returned to his initial position that he had not done so. The Tribunal observed the demeanour of the review applicant to be evasive during the provision of this evidence and notes that on several occasions he provided inconsistent responses to the Tribunal’s questions concerning when he first discussed marriage with the visa applicant and if he had spoken to her prior to meeting in person.

13. The review applicant advised the Tribunal that he became engaged to the visa applicant after seeking permission from her family. He indicated this was more than one year after they met in person. He later advised that a formal engagement ceremony was held but he did not attend due to work commitments in Australia (the documentary evidence submitted by the review applicant purports the date of this ceremony to be 19 January 2014). The Tribunal asked him if his lack of attendance demonstrated a strong commitment to the visa applicant and he responded that he loved her, had relatives attend the ceremony and reiterated his work commitments prevented his attendance.   

14. The Tribunal asked the review applicant when the wedding ceremony was booked. He responded variously that he wanted to get married in Australia and that he had been told to get married but could not remember when. He added that he doesn’t know when they will actually be married as the visa applicant is still in Cambodia. Again the Tribunal observed the demeanour of the review applicant to be evasive during the provision of this evidence and notes that he provided inconsistent responses to questions concerning the planned date of his marriage to the visa applicant.  

15. The review applicant informed the Tribunal that he spent around one and a half months with the visa applicant on his visit to Cambodia in 2012. He further added that the visa applicant lived with her parents during this time. The review applicant also advised that he visited the visa applicant again in Cambodia during August 2015 where, with the permission of her parents, he spent nine nights with her in a motel. The review applicant indicated that no housework was shared during this time as they were staying in the motel. He advised that he undertook social activities with the visa applicant during these visits such as trips to the markets, provided financial support to her since 2012 of $200-$300 per month (including spending USD 200 on the engagement ceremony which he could not attend), and was very committed to the visa applicant.  

16. The Tribunal asked the review applicant if he had any prior relationships to which he responded that he was divorced and had four children from a past relationship in Cambodia. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised with the review applicant that the Department of Immigration file contained the visa application signed by the visa applicant on 11 April 2014 and the sponsorship form signed by him on 24 September 2014. At questions 63, 64 and 65 of the former document, the visa applicant indicated the review applicant had never been previously married, nor been in a de facto relationship, nor been engaged to anyone else. At questions 27 and 28 of the latter document, the review applicant also indicated that he has never been previously married or in a de facto relationship. The Tribunal noted that at question 53 of the visa application it indicated the review applicant had three children. The Tribunal advised that the aforementioned information was relevant as it tended to suggest both the review and visa applicants’ had provided incorrect information to the Department and this undermined the credibility of their claims concerning their relationship. The review applicant was offered an adjournment before commenting on or responding to this information but did not request one. He replied that ‘maybe I don’t believe him’ and then advised he had four children and was not sure why the visa applicant indicated there were only three. The Tribunal has carefully considered the response of the review applicant. Whilst the Tribunal accepts that some of the review applicant’s children were declared to the Department, the failure to provide complete information reflects a lack of knowledge between the parties as to their personal circumstances. The Tribunal finds accordingly.

    Evidence of the visa applicant (Ms Hok)  

17. The evidence of the visa applicant may be summarised as follows. She met the review applicant on 12 September 2012 when he was visiting relatives in Cambodia and had not spoken to him previously. The visa applicant told the Tribunal she was in love with the review applicant once they went to the temple. When asked how long after meeting they went to the temple she replied that it was one day. Following the visit to the temple they held a celebration. The visa applicant advised they felt ‘connected’ to each other at that time.

18. The Tribunal asked the visa applicant when she first discussed marriage with the review applicant. She variously responded that she couldn’t recall, that it was discussed during the 2012 visit of the review applicant to Cambodia, and that it was after visiting the temple when he gave her earrings on 16 September 2012. The Tribunal raised with the visa applicant that it seemed like a very short period elapsed between her meeting the review applicant and being in love with him. She initially responded that she was in love with him by the time they visited the temple as he was a very generous man, then later advised they were not really in love at the start rather they were ‘connected’. The visa applicant informed the Tribunal she agreed to marry the review applicant as she felt she could rely upon him in the future as a partner. The Tribunal observed the demeanour of the visa applicant to be evasive during the provision of this evidence and notes that on several occasions she provided inconsistent responses to the Tribunal’s questions concerning when she first discussed marriage with the review applicant and when she was first in love with him.

19. The Tribunal asked the visa applicant when she planned to marry the review applicant. She initially advised that she couldn’t recall, but that it would be some time after the engagement party. She noted that the review applicant was not available to attend this party due to his work commitments in Australia. When asked where the marriage was to take place she indicated it would be in a church in Australia but she didn’t know which church. When asked by the Tribunal when they discussed plans for the wedding, the visa applicant told the Tribunal that she couldn’t recall and that the review applicant never said a date of marriage to her. The Tribunal asked her if a date had ever been set for her wedding and she replied that it had not.

20. The visa applicant advised the Tribunal that the review applicant had visited her in both 2012 and in 2015 for almost two months and nine days respectively. She indicated he would send her $200-$300 per month, sometimes $700 and sometimes $1,000. In addition she advised of gifts received including a bracelet, necklace, ring and earrings. She also outlined that the engagement ceremony was held on 19 January 2014 in the absence of the review applicant as he was busy working in Australia. The visa applicant told the Tribunal of social activities such as meals and visits to the market they undertook together in Cambodia. She also advised of the review applicant’s previous marriage with four children when asked by the Tribunal. The visa applicant indicated she speaks regularly to the review applicant and that they miss each other.

21. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised with the review applicant several pieces of information arising from the oral evidence of the visa applicant. The review applicant was offered an adjournment before commenting on or responding to each piece of information. He did not request an adjournment at any time and responded immediately to each of the following pieces of information:

    (a)the Department of Immigration file contains the visa application and sponsorship forms which respectively indicate at questions 55 and 21 that the parties intended to marry on 25 October 2014, whereas the oral evidence of the visa applicant was that a date of marriage was not discussed with her and she was not aware of which church she would be married in. This information is relevant as it tends to suggest that inaccurate information was provided to the Department and it casts doubt upon the credibility of the parties’ and the genuineness of their relationship. The review applicant responded that he would like to marry now and because he is working wants the visa applicant to come sooner. He indicated if they made a mistake it was because he was not well educated and requested the help of the Tribunal to have his fiancé come to Australia. The Tribunal has carefully considered this response, however finds that the lack of discussion concerning a date and location of marriage between the review and visa applicants’ casts serious doubt over their claims to genuinely intend to live together as spouses;

    (b)the review applicant gave oral evidence that he had sent $200-$300 per month to the visa applicant since 2012, yet the visa applicant advised sometimes the amounts were $700 or $1,000 per month. This information is relevant as it tends to suggest that inconsistent information was provided to the Tribunal and this casts doubt upon the credibility of the parties and the genuineness of their relationship. The review applicant responded that he seeks the help of the Tribunal because he is working daily, has had a hard life and lives by himself. After careful consideration of this response and the documentary evidence (discussed in more detail below), the Tribunal accepts that the variance in the oral evidence of the parties’ concerning this matter is attributable to a mistake and accordingly no adverse inference is drawn from it; and 

    (c)the visa applicant gave oral evidence that they agreed to marry on 16 September 2012 after they met on 12 September 2012 and the review applicant gave oral evidence this occurred during his first visit to Cambodia when they met. This information is relevant as it tends to suggest they agreed to marry within a few days of meeting each other and this casts doubt on the genuineness of the relationship. In response the review applicant indicated he didn’t understand the question. The Tribunal explained the question to him and he then responded that the date was discussed only with the visa applicant’s parents and he didn’t know it at all. The Tribunal asked him again if he wanted to provide any further response and he indicated he had nothing further. Following careful consideration of the review applicant’s response, the Tribunal finds that the very short inception of the relationship casts doubt upon its veracity and the parties’ claims to genuinely intend to live together as spouses.     

    Circumstances of the relationship

1. The Tribunal has considered all of the circumstances of the relationship, including the following matters, in arriving at its decision concerning the intention of the review applicant and visa applicant, at the time of application and the time of decision, to live together as spouses. The Tribunal notes it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, however considers an investigation of the parties’ intentions with regard to the definition of spouse in the legislation may assist in determining the parties’ aspirations.

   Financial aspects of the relationship

2. The Tribunal had before it a collection of ‘AUSKHMER Money Transfer’ receipts from 4 June 2013 through to 2016. The receipts are handwritten and demonstrate the transfer of amounts from the review applicant to the visa applicant in amounts from USD 100 up to USD 1,000. Bank statements of the sponsor concerning 2016 and 2017 also reveal regular cash withdrawals. As indicated above, both the review and visa applicants’ gave oral evidence concerning the regular transfer of funds from the former to the latter. The Tribunal also notes the oral evidence suggests the review applicant funded an engagement ceremony and has purchased gifts for the visa applicant. After careful consideration, the Tribunal places some weight on the aforementioned evidence and accepts regular funds transfers have occurred. However, the Tribunal notes that there is no evidence before it of the intermingling of funds between the parties’, or of any significant purchases together or of joint liabilities.     

   Nature of the Household

3. Documentary evidence including motel receipts, photographs and travel documentation was before the Tribunal in support of aspects of the relationship relating to the nature of the household. The Tribunal accepts this evidence supports the oral evidence of the parties concerning the review applicant visiting the visa applicant between September and October 2012 and in August 2015, placing some weight upon it. Whilst the Tribunal accepts that the formation of a household is difficult when the parties live in different countries, it notes that the evidence suggests they have only stayed under the one roof together for nine nights in a relationship said to have commenced in September 2012. Further, the oral evidence of the review applicant was that they had not shared housework together. The Tribunal considers the limited visits of the review applicant to Cambodia, and the accordingly brief periods of time they have spent together, to weigh against the parties’ contentions that they genuinely intend to live together as spouses.     

   Social aspects of the relationship

4. The Tribunal had before it various documentary evidence in support of the parties’ claims concerning their intention to live together as spouses. A Statutory Declaration dated 26 June 2014 from Mr Brad Carr referred to the review applicant being unable to attend his engagement party due to work commitments but made no further reference to the relationship. The brevity of the Declaration and lack of specificity regarding the relationship lead the Tribunal to afford it little weight. Another Statutory Declaration from Mr Neal Simpson dated 29 September 2014 makes reference to conversations had concerning the relationship. However, it too is brief and lacks detail regarding the relationship. Therefore the Tribunal affords it low weight.

5. A limited selection of photographs was also submitted by the review applicant to the Tribunal. They depict the parties’ together in social situations in Cambodia and with family members. The Tribunal affords them some weight. Motel receipts and travel documentation support the oral evidence of the parties’ as to the review and visa applicants’ being in each other’s presence in Cambodia during the stated times. Some weight is placed upon this evidence. Telephone records were also submitted for the period from February 2015 and the Tribunal accepts the parties’ have been in telephone contact since that time. Further, the Tribunal accepts the oral evidence suggesting they have maintained contact by telephone since their meeting. Some weight is placed upon the aforementioned evidence.   

6. The following documents dated 15 January 2014 concerning the engagement of the parties’ were before the Tribunal, a letter of engagement, application for certification and engagement authorization. In addition, several letters of confirmation dated 22 February 2014 concerning the engagement were also submitted. The aforementioned documentation seeks to demonstrate that permission was given for the visa applicant to marry the review applicant and a formal engagement ceremony was conducted. It is formulaic in its appearance and appears to have been created for the purpose of assisting the visa application. The personal statement of the visa applicant also refers to the engagement ceremony, albeit briefly. Whilst the Tribunal is prepared to accept that an engagement ceremony took place on 19 January 2014, the absence of the review applicant calls into question the genuineness of that ceremony. The Tribunal notes the employer evidence indicating the review applicant could not be released to attend the ceremony at that time however he was able to travel to Cambodia in August 2015 (some nine months following the visa application). No satisfactory explanation has been provided for why the ceremony could not wait until he was able to attend. After careful consideration, the Tribunal finds that the ceremony was conducted in the absence of the review applicant primarily in order to support the visa application and this casts doubt upon the genuineness of the parties’ intentions to live together as spouses.

7. The inconsistent oral and documentary evidence raised in accordance with s.359AA of the Act, concerning the intended date of marriage and the timing of the agreement to marry between the parties’, calls into question the genuineness of their intention to live together as spouses as detailed above. For completeness, the Tribunal notes that a letter dated 24 September 2014 from Reverend Owen White, indicating the parties’ would marry on 21 December 2014 at the Logan Wesleyan Methodist Church, was submitted to the Department in support of the visa application. It is not written on Church letterhead and is brief in its particulars. Given the details in that letter are inconsistent with the dates contained in the visa application, sponsorship form and the oral evidence of the parties’, the Tribunal affords this letter no weight. It is of concern to the Tribunal that the visa applicant indicated in her oral evidence that a date for her wedding was never set, and the review applicant was unable to recall such a date in his oral evidence, whilst conflicting information was provided to the Department in the documentary evidence. Given the credibility concerns outlined above regarding the oral evidence of the parties’ in relation to the very short inception of the relationship and lack of planning for their wedding, the Tribunal finds that at the time of application they did not genuinely intend to live together as spouses.

   Nature of persons’ commitment to each other

8. Following consideration of the documentary and oral evidence described above, the Tribunal considers that the inception of the relationship between the review applicant and visa applicant was very short. Further, the credibility issues identified above regarding the intended date of marriage and the timing of the agreement to marry cast doubt upon the genuineness of the parties’ commitment to each other at the time of application. The Tribunal accepts that at the time of application the review and visa applicants’ maintained some contact by telephone, the former was providing financial assistance, and a degree of companionship and emotional support was provided. However, the inability of the review applicant to attend the engagement ceremony, which might easily have been delayed until his visit to Cambodia in 2015, combined with the credibility concerns highlighted lead the Tribunal to conclude that a long term commitment to a future spousal relationship was not present at the time of application.    

   Conclusion concerning the intention of the review applicant and visa applicant to live together as spouses

9. Having regard to the matters outlined above, the Tribunal finds that at the time of application the parties’ did not have a genuine intention to live together as spouses, and therefore the requirements of cl.300.216 are not satisfied by the visa applicant. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.216. It follows that the visa applicant does not satisfy the requirements of cl.300.221.

10. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

11. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

    K. Chapman
    Member