Patten (Migration)

[2021] AATA 5056

Patten (Migration) [2021] AATA 5056 (22 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kelvin Toulie Patten

VISA APPLICANTS:  Ms Thi Thanh Huong Nguyen
Master Duc Long Pham
Master Tung Lam Pham

CASE NUMBER:  1829018

HOME AFFAIRS REFERENCE(S):          BCC2017/4328593

MEMBER:Helena Claringbold

DATE:22 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application 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; and

·cl. 300.216 of Schedule 2 to the Regulations; and

·cl. 300.221 of Schedule 2 to the Regulations; and

·the second named visa applicant and third named visa applicant be considered against the relevant criteria for the grant of the visas.

Statement made on 22 December 2021 at 1:27pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry – genuine and continuing relationship – previous engagement ceremony/reception in Vietnam – money transfers – plans for shared household and family – evidence of social activities – regular communications – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 300.215, 300.216, 300.221, 300.321; r 1.15

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 17 November 2017, Ms Thi Thanh Huong Nguyen, the first-named applicant (the visa applicant), applied for a Prospective Marriage (Temporary) (Class TO) visa. The application was based on her intention to marry Mr Kelvin Toulie Patten, the sponsor and the review applicant. The applicant’s children, Master Duc Long Pham and Master Tung Lam Pham are included in the application as the second named and third named visa applicants. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage).

2. On 26 September 2018, a delegate to the Minister for Home Affairs refused to grant the visas. The delegate was not satisfied that the visa applicant met cl. 300.215 and cl. 300.216 and cl. 300.321 of Schedule 2 of the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). As a result, the second and third named visa applicants did not meet cl.300.321 of the Regulations. On 4 October 2018, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. On 19 October 2021, the Tribunal wrote to the sponsor and invited him to a Tribunal hearing on 21 December 2021. He was provided with information including the following:

   Should he submit telephone or chat message records he is to provide to the Tribunal clearly identified information from these messages that relate to the financial aspect of the parties’ relationship and the nature of their household and the social aspects of their relationship and the nature of their commitment to each other and explain why the information is relevant to these aspects of the parties’ relationship. In addition, the relevant information from the messages to be places directly underneath the explanation of its relevance. Independent information identifying the holders of the accounts to be provided. The messages to be clearly identified by the independent messaging platform with the original message provided and clearly identified.  If the message are in a language other than English they need to be translated into English by a translator with a current ‘Translator’ level certification and accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI) who is independent and not involved in or associated with the case under review.

4. On 21 December 2021, the sponsor appeared before the Tribunal 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. The sponsor was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal considered, individually and completely the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file and the evidence provided at the Tribunal hearing. 

   ISSUES

7. The first issue in the present case is whether at the time of visa application the parties genuinely intend to marry and that the marriage is intended to take place within the visa period. The second issue is whether the parties genuinely intend to live together as spouses. The applicant must continue to be satisfy the second issue at the time of decision.

   BACKGROUND ON THE EVIDENCE

8. The visa applicant was born in 1985 in Vietnam. Her parents and sibling live in Vietnam. She declared one previous marriage to Mr Thanh Luam Pham from January 2005 to 24 May 2016.  There are two children from this relationship, who are the second named and third named visa applicants.

9. The sponsor was born in 1969 in New Zealand. The sponsor declared no previous relationship. He did not declare any family details on the sponsorship form.  However, the visa applicant declared his parents to be deceased and that he has two sisters and a son born in 2005 who live in Australia. On 15 November 2017, the sponsor became an Australian citizen by grant. A National Police Certificate issued by the Australian Federal Police dated 10 June 2016 recorded that the sponsor had a disclosable court outcome at Campbelltown Local Court on 8 August 2006 with an offence of common assault. The court result was without conviction with a bond of good behaviour for 12 months. 

10. On 22 August 2016, the sponsor and the visa applicant (the parties) first met in Vietnam. On 14 September 2017, the parties became engaged. The parties intended to marry on 12 May 2018.

    CLAIMS AND FINDINGS

    Do the parties genuinely intend to marry?

11. Clause 300.215 requires that at the time of application the visa applicant establishes that the parties genuinely intend to marry and that the marriage is intended to take place within the visa period and that they genuinely intend to live together as spouses.

12. A Notice of Intended Marriage (NOIM) between the parties was lodged on 7 November 2017 with the intended marriage to take place on 12 May 2018. The NOIM is valid for 18 months after the date of lodgement.  The parties told the Tribunal of their plans for their intended marriage.  They gave consistent information about their intended marriage and stated that they would marry approximately one month after the visa applicant arrived in Australia.  They will apply to the local government authority to have their marriage at the local park and will celebrate by having a barbeque with friends and family members. The sponsor estimates the wedding will cost $2000 and he will pay for the hiring of the location for the ceremony, decorations and food for the guests. On 17 December 2021, the representative advised the Tribunal that the parties perceived the engagement ceremony/reception they had in Vietnam as their wedding.  However, they have not signed a marriage certificate and had registered their marriage in Vietnam. The parties told the Tribunal that they had not registered their marriage in Vietnam because the sponsor cannot remain there for the required time.  They intend to register their marriage in Australia.

13. At the time of visa application, the parties had a genuine intention to marry and the proposed date for the marriage is within the visa period. Therefore, at the time of visa application the requirement cl. 300.215(a) and cl.300.215(b) of Schedule 2 to the Regulations are met.

    Do the parties genuinely intend to live together as spouses?

14. 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).

15. 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.

16. 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.

    The financial aspects of the parties’ relationship

17. The parties’ income is derived from their salaries.  They each provide for their own day‑to‑day household expenses.  However, between 2017 and January 2021 the sponsor transferred approximately $14,300 to the visa applicant to assist her expenses. The parties intend to combine their financial matters when they are living together. The parties intend to create a joint bank account when the visa applicant is in Australia. The parties do not have any joint ownership of real estate or other major assets or any joint liabilities.  They do not pool financial resources, especially in relation to major financial commitments and do not owe any legal obligation in respect of the other person. The Tribunal accepts that the sponsor has sent money to the visa applicant and that there may be some sharing of day-to-day household expenses.

    The nature of the parties’ household

18. The sponsor lives alone in a rental apartment in Australia.  He works as an assistant in a liquor shop. The visa applicant lives in Vietnam with her parents and sons. She works as a restaurant manager and previously ran a small business which was closed in July 2021 as a result of the COVID-19 pandemic. The sponsor lived with the visa applicant in her home when he visited her in Vietnam. They shared some household chores.  She usually cooked, washed the clothes and did the house cleaning. He washed and dried the dishes, hung out the clothes and mopped the floors and walked the children to school. When the visa applicant arrives in Australia the parties will continue to share the housework. The visa applicant will cook and when free he will clean and wash and do the heavy duties and drive the visa applicant to purchase the groceries. The children are cared for by the visa applicant. The parties do not have any joint responsibility for the care and support of children. Although the sponsor assisted with them when he was in Vietnam and intends to be involved with them when they come to Australia and will treat them as his own children and has assisted them financially through the money, he sent to the visa applicant and the gifts he gave them.  The Tribunal accepts that the parties live in separate countries and have not established their household, however, have shared some of the responsibility for housework when the visa applicant was in Vietnam.

    The social aspects of the parties’ relationship

19. The sponsor travelled to Vietnam in August 2016 and met with the visa applicant. They went sightseeing together for three days and the sponsor returned to Australia.  He departed Australia on 3 April 2017, 9 September 2017, 23 July 2018 and 16 March 2019 and lived with the visa applicant for approximately two months and eight days.  During this time the parties enjoyed visiting family and friends. They went to eat at restaurants regularly and took day trips and short holidays in different places. They travelled to Thailand and visited attractions in Vietnam such as Da Nang and Vinh Ha Long. On 14 September 2017, they held their engagement ceremony with many of their friends and family attending. He has been unable to travel to Vietnam since 2019 because of the COVID-19 pandemic restrictions.

20. Statutory declarations from witnesses dated 2017 and 2018 provide information including the following: Ms Thi Loan Nguyen is the visa applicant’s aunt and had known the sponsor for three years. The visa applicant and the sponsor told her that they love each other and can’t wait to be together and miss each other. They have similar personalities, are kindhearted, easy going and in similar circumstances.  Therefore, they are able to understand each other. Their families and friends support their relationship. She believes the relationship to be genuine and continuing. Ms Thuy Nga Dang had known the visa applicant for 23 years through her friend Loan who is the visa applicant’s aunt. She and the sponsor are neighbours. She hears the parties talking on the telephone and they sound romantic and caring toward each other. In 2017, she travelled to Vietnam with the sponsor. She could see that the parties got along well and have similar circumstances and a lot in common and are compatible. They have nice personalities and would have a lasting relationship. She understands that the sponsor has applied for a prospective marriage visa and he is excited and looking forward to the visa applicant coming to Australia.  The parties love each other. Statutory declarations from witnesses dated 2021 provide information including the following: Mr Aashish Koirala is a work colleague of the sponsor and knows of the visa applicant.  He witnessed the sponsor happily being in contact with the visa applicant.  He has also shown him photographs the parties exchange with each other.  All witnesses believe the parties’ relationship to be genuine and continuing.

21. Photographic evidence depicts the parties in wedding attire, exchanging rings and cutting a wedding cake. Other images depict the parties together and with others at different locations. Over 2100 pages of what appears to be text messages have been provided dated 2017 to 2021. They do not contain any identification of the platform used to exchange the messages or independent information identifying the account holders.  They primarily contain one line message exchanges identified as ‘Huong Patten’ or ‘My love husband’. No explanation has been provided about how particular messages relate to the financial aspect of the parties’ relationship and the nature of their household and the social aspects of their relationship and the nature of their commitment to each other. Some of the messages are in English and some in a language other than English which cannot be read by the Tribunal and no translation has been provided.  In a post Tribunal submissions further messages were provided; these display screen shots of images of the parties.  The Tribunal is satisfied that the parties communicate with each other.

22. The Tribunal accepts that the parties represent themselves and are seen as being in a prospective marriage relationship and that they have planned and undertaken some social activities together.

    The nature of the parties’ commitment to each other

23. The parties initially met via video call in December 2015.  They communicated with each other and their relationship grew. The sponsor travelled to Vietnam to be with the visa applicant in 2016, 2017, 2018 and 2019. He proposed to the visa applicant in April 2017 and she stated that she would have to think about the proposal. He proposed to her again in July 2017 and she accepted the proposal. On 9 September 2017, he formally proposed to her before family members and the parties became engaged on 14 September 2017. They have lived together for approximately two months and eight days. They appear to provide companionship and emotional support to each other. They would like to start a small business and have a child together.  The parties see their relationship as long term.

24. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and completely. With regard to the considerations for a spousal relationship and the degree these factors may be applied to determine a future intention, the Tribunal is satisfied that the sponsor and the visa applicant demonstrated knowledge of each other broadly consistent with a couple who intend to live together as spouses. The Tribunal examined the parties’ knowledge of their individual and combined financial affairs; the nature of their respective households; their families, including the visa applicant’s sibling and the sponsor’s family in Australia; the recognition of their relationship by their families; the social aspects of the parties’ relationship and the nature of the parties’ commitment to each other. Having discussed these aspects thoroughly at hearing, the Tribunal is satisfied that the parties genuinely intend to live together as spouses.

25. The Tribunal is satisfied that at the time of application and the time of decision the parties genuinely intended to live together as spouses Therefore, the visa applicant meets cl.300.216 and cl. 300.221 of Schedule 2 to the Regulations.

26. The Tribunal directs that the second named and third named visa applicants be considered against the relevant criteria for the grant of the visas.

27. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 300 visa.

    DECISION

28. The Tribunal remits the application 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; and

    ·cl. 300.216 of Schedule 2 to the Regulations; and

    ·cl. 300.221 of Schedule 2 to the Regulations; and

    ·the second named visa applicant and third named visa applicant be considered against the relevant criteria for the grant of the visas.

    Helena Claringbold
    Member