Phan (Migration)

Phan (Migration) [2022] AATA 4601 (18 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Thi Anh Thu Phan
VISA APPLICANT:  Mr Gia Sam Vuong
REPRESENTATIVE:  Ms Trang (Karen) Vo (MARN: 0635245)
CASE NUMBER:  1831038
HOME AFFAIRS REFERENCE(S):          BCC2017/3432740
MEMBER:Anne Grant
DATE:18 November 2022
PLACE OF DECISION:  Melbourne
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:
·cl 300.211, 300.214, 300.215 and 300.216 of Schedule 2 to the Regulations; and
·cl 300.221 of Schedule 2 to the Regulations.

Statement made on 18 November 2022 at 12:39pm
CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine and continuing relationship – witness statements by family and friends – engagement event in Vietnam – extensive evidence of communication – updated notice of intention to marry – applicant’s previous residence on Australia – business ownership – plans to start a family – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 300.314, 300.215, 300.216, 300.221; r 1.15
statement of decision and reasons
application for review

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).
The visa applicant applied for the visa on 18 September 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). Relevantly to this matter the primary criteria include a requirement that the visa applicant intends to marry an Australian citizen, Australian permanent resident, or eligible New Zealand citizen who is their prospective spouse,(cl 300.211) that the visa applicant and sponsor have met in person since they each turned 18 years of age and are known to each other personally (cl 300.214), that they genuinely intend to marry (and the marriage is intended by the parties to take place within the visa period) (cl 300.215) and that the parties genuinely intend to live together as spouses (cl 300.216).
The delegate refused to grant the visa on 31 August 2018 on the basis that the visa applicant did not satisfy cl 300.216 of Schedule 2 to the Regulations because they found that the evidence and information was not sufficient to demonstrate that the parties have ever been or intend to be in a genuine and continuing relationship or that they genuinely intend to live together as spouses.
The review applicant (‘the sponsor’) appeared before the Tribunal on 8 November 2022 by video conference using the MS Teams application to give evidence and present arguments. The visa applicant participated from Vietnam by telephone conference and gave evidence in the absence of the sponsor.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The parties were represented in relation to the review. The applicants’ representative participated via video conference, and the sponsor was present at her offices.
For the following reasons, I have concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 300.221 requires that, at the time of decision, the visa applicant continues to satisfy the criteria in cls 300.211, 300.214, 300.215 and 300.216. Those criteria require that, at the time the visa application was made, the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; the parties have met and are known to each other personally; the parties genuinely intend to marry and intend to do so during the visa period; and the parties genuinely intend to live together as spouses. Accordingly, a decision maker must be satisfied that the criteria in those clauses were met at the time of application and also at the time of decision.
The issue in the present case is therefore whether the visa applicant and sponsor satisfy clauses 300.211, 300.214, 300.215 and 300.216 at the time of application and whether they continue to satisfy those clauses at the time of decision.
In support of the application, the parties have submitted documents and evidence, including the following documents pertinent to the issues under review:
·Letter from a civil marriage celebrant, dated 19 August 2017 stating the sponsor has lodged a Notice of Intended Marriage between both the sponsor and Mr Gia Sam Vuong (visa applicant). The ceremony of the marriage was to take place on 15 August 2018 at Harkness, Victoria 3337;
·Certificate of marital status, dated 29 August 2017, issued by the People’s Committee of Ward 12, Socialist Republic of Vietnam, certifying the visa applicant has never applied for registration of marriage;
·Witness statement of Thi My Loan Dang, a friend of the sponsor, dated 31 August 2017, in support of the relationship. Ms Dang says that she has known the sponsor for five years and about her relationship with the visa applicant for one year. She has spoken to him on the phone if he has called whilst the sponsor is with her. She describes how the sponsor told her that she was planning to marry again, and how she has observed their relationship and found the visa applicant to be a gentle and soft man, just as the sponsor needs. Ms Dang describes how the sponsor has asked her to be a witness at their wedding and she agreed.
·Witness statement of Thanh Nhi Vuong, the visa applicant’s sister, dated 31 August 2017, in support of the relationship. Ms Vuong confirms that she met the sponsor in early 2016 after her brother invited her to get in touch with the sponsor ‘if she needs any help’ as a single mother with two children. Ms Vuong states that she has maintained contact with the sponsor and is fully supportive of her relationship with her brother. She states that initially she had some reservations due to the sponsor having been divorced but when she came to know her, she also learned of the problems she encountered in her first marriage and understood how difficult it was for her to fall in love again. She also notes that she has observed positive changes in her brother since he started this relationship. Ms Vuong adds that because of her family commitments she couldn’t attend the engagement but is expecting to attend their wedding in the near future in Melbourne;
·Statement of the sponsor dated 15 September 2017. In summary, the sponsor states she first met the visa applicant in December 2013 at her brother’s wedding in Vietnam. The couple exchanged phone numbers and had meals together while she was still visiting. Before the sponsor left for Australia, she gave the visa applicant her Australian phone number so they could keep in contact with each other. While in Australia, the sponsor exchanged texts and started to develop feelings for the visa applicant. In November 2015 she visited Vietnam, and this is when they professed their love for each other. In March 2016, she visited Vietnam again where both her and the visa applicant’s family were introduced to each other. The couple also spent time with friends. On 9 June 2016, the visa applicant sent the sponsor a birthday card where he stated he wished to marry her. After consideration, on 15 August 2016, the sponsor sent the visa applicant a birthday card stating ‘yes’ she will be engaged to him. The couple had an engagement witnessed by their family and friends in Vietnam, and plan to hold their wedding celebrations at their residence in Australia.
·Statement of the visa applicant dated 14 September 2017. In summary, the visa applicant states he met the sponsor when he attended wedding of the sponsor’s brother in December 2013. The couple exchanged numbers and exchanged messages when the sponsor returned to Australia. During this time, he started to develop feelings for the sponsor. He showed the sponsor around in Vietnam during her visit to Vietnam in November 2015. After the sponsor’s visit ended, the couple made frequent contact with each other. The sponsor confided in the visa applicant about her previous marriage, where she was very unhappy. The visa applicant wanted to bring the sponsor happiness and he developed feelings for the sponsor. In March 2016 the sponsor visited Vietnam and it was during this trip where the sponsor was introduced to the visa applicant’s family. After the sponsor returned to Australia, the couple contacted each other every day via telephone and text messages. It was during this time where his love for the sponsor grew, and he decided to propose to her. His family had no objection to this. He sent a birthday card to the sponsor on 9 June 2016 with a proposal for marriage. The sponsor did not give him a reply straight away. However, on his birthday of 15 August 2016, the sponsor sent a card, accepting his proposal. Both families agreed and formalised the marriage proposal. The couple plan to have their wedding on 15 August 2018 at their home in Australia.
·Statement from Thi My Linh Do, a family friend of the visa applicant, dated 31 October 2022. Ms Do states she has known the visa applicant since they were little. She last saw him in person in 2018 when she went to Vietnam to visit her mother. Ms Do states that she was invited to the engagement celebrations in Vietnam however she was unable to attend. She states that she believes that the applicant and sponsor truly love each other.
·Statement from Dao Thi Thong Nguyen, a friend of the sponsor, dated 29 October 2022. Ms Nguyen says she has known the sponsor for more than three years. Ms Nguyen states that she keeps in touch with the sponsor by phone and last saw her at her restaurant two weeks ago. Ms Nguyen describes being told about the wedding plans, the refused visa, and the new wedding plans (and that she is invited to the wedding when it takes place in July 2023.) Ms Nguyen states that the sponsor really needs the visa applicant here to support her with life and her business.
·Second statement from Thanh Nhi Vuong (the applicant’s older sister) dated 26 October 2022. Ms Vuong describes the sponsor as her sister-in-law, and that they see each other at least once a week before covid. Currently they meet up once every two weeks. She continues to support the relationship, noting that they’ve been together a long time. She also describes them both being very upset when her brother ‘didn’t pas the interview’. She notes that since then and whilst waiting for the hearing at the Tribunal, she has observed their relationship growing stronger, despite the difficulties of long distance, and how they support each other through tough times. Ms Vuong also describes how she has discussed the sponsor’s desire to have children with the visa applicant and being aware of the time they have been separated.
·Statement from Ms Thi Ngoan Nguyen, the visa applicant’s mother dated 25 October 2022. She describes how she first met the visa applicant six years ago when introduced by her daughter as her boyfriend. Ms Nguyen states that the parties video call almost every day due to the distance and sometimes she speaks to him as well. Ms Nguyen states that she believes her daughter has found happiness with the applicant and refers to the sponsor’s experience of family violence in her first marriage. Ms Nguyen states that since she’s known the visa applicant, she has become happy again. She believes their relationship is genuine and continuing. She further states “I wish that Sam can be my son in law as he is a nice person with a warm heart to treat my daughter from her sorrow.”
·Sponsor telephone statements showing calls she made to visa applicant in Vietnam;
·The visa applicant’s untranslated ‘Viber’ account call history log showing the calls he made to his sponsor;
·Photographs depicting the couple spending time together;
The parties each gave evidence consistent with their written statements, summarised above, and provided additional information and evidence in response to questions asked about their historical and current circumstances. To avoid repetition, evidence given and taken into consideration will be summarised as relevant below in addressing the criteria and aspects of the relationship.
Does the visa applicant intend to marry an eligible person?
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. The visa applicant claims that he intends to marry his sponsor Ms Thi Anh Thu Phan. The sponsor is an Australian citizen. Accordingly, the requirements of cl 300.211 are met. Cl 300.211 is satisfied both at the time of application and at the time of this decision.
Have the applicants met in person and are they known to each other personally?
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.
The applicant and sponsor have provided information and evidence demonstrating that they have met in person at the wedding of the sponsor’s brother in December 2013, and on the evidence before me, including their applications and their identification documents, I am satisfied that they were both over the age of 18 at the time they met. In the documents supporting their application, the parties have provided photographs of them together at different locations in Vietnam when the sponsor visited Vietnam in November 2015, March 2016, and in 2019. There are also supporting witness statements of family members and photographs which establish that the applicant and sponsor have conducted an engagement event in Vietnam in 2017, attended by members of both families.
The applicant and sponsor’s respective evidence at hearing demonstrated that they do know each other personally. The visa applicant’s evidence reflected that he was familiar with the sponsor’s family, her employment history, her new business (which he intends to be involved in), and her financial affairs. The visa applicant was aware that the sponsor’s mother had given them a contribution towards starting the restaurant. The sponsor’s evidence reflected that she was familiar with the visa applicant’s employment history, his family, and his financial affairs. She knew of his business and how it operated. Both parties described how they often have long video calls while the other is at work, so that they can chat in quiet times and, in the sponsor’s words, to enable them to feel closer to each other and part of each other’s day, despite their physical separation. The parties have provided hundreds of pages of phone, text and viber records over several years (and continuing up to the date of the hearing) demonstrating that they have constant and extensive contact by phone or video call.
Based on the evidence before me, I am satisfied that the visa applicant and sponsor have met in person and are known to each other personally. I find that cl 300.214 is satisfied both at the time of application and at the time of this decision.
Do the parties genuinely intend to marry?
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.
In his statement and in evidence, the visa applicant said that he and the sponsor had planned and looked forward to their marriage since they became engaged in 2017. The sponsor also confirmed this and that she was devastated when the visa applicant’s visa was refused because it prevented them from getting married and starting their life together.
At the time of application, the parties provided a letter from an Australian Marriage Celebrant dated 19 August 2017 stating that the sponsor has lodged a Notice of Intended Marriage between the sponsor and the visa applicant, with the marriage expected to take place on 15 August 2018 in Victoria. At hearing, the visa applicant and sponsor confirmed that they intended to marry on that date at the time they lodged the application.
Prior to the hearing, the parties provided a letter from Vic Marriages Registry Office confirming that the parties have lodged a new Notice of intention to marry, stating that they intend to marry on 1 July 2023. The notice has not been signed by the visa applicant as he is residing in Vietnam.
The applicants also provided evidence of their continuing intention to marry at hearing and described plans for their wedding. They gave additional information about their desire to hold a ‘honeymoon’ celebration for their friends and family who are in Vietnam after they marry in Australia. Their current plan is for this event to be a small romantic gathering on a beach in Vietnam. The sponsor gave evidence that she had not decided which particular beach yet, (because there are many beautiful beaches in Vietnam) but is leaning towards Phu Quoc beach.
As noted above, friends and family members of the parties have provided statements referring to their plans to marry.
I have considered the information and evidence before me, including the Notices of Intention to Marry and the evidence given by the visa applicant and sponsor at hearing, as well as the witness statements provided. I accept that at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl 300.215(a). The application was lodged in September 2017 and the parties intended to marry on 15 August 2018. This is within the twelve month ‘stated average visa processing time’. I am satisfied that the parties intended to marry within the visa period as required by cl 300.215(b). Therefore, the requirements of cl 300.215 were met at the time of application.
I accept that the applicants now intend to marry in July 2023, which is within the visa period, allowing for processing. Cl 300.215 is met at the time of this decision.
Do the parties genuinely intend to live together as spouses?
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.
I have considered the material before me, and the evidence given by the parties. I am satisfied that the visa applicant and the sponsor are reliable witnesses. In considering the information and evidence before me, I have also borne in mind the difficulty faced by applicants for a prospective spouse visa where they have been living separately and apart due to travel restrictions and the handicap this must cause to the development of their personal intimacy and also, of course, to their capacity to provide objective evidence about their relationship, their plans, their social activities, and their commitment to each other during that period.

There is on the Departmental file a certificate under s. 375A referring to information (at folio 106 of the file) which is unable to be disclosed in this review on the basis that it ‘reveals confidential departmental investigative methods used to detect breaches of the law’. The existence of the certificate was disclosed to the parties and their representative. I am satisfied that the certificate is valid, and the information at folio 106 has not been disclosed. The information in folio 106 could plausibly be considered to be adverse material. However, having considered the information which is limited in detail, I have decided that no adverse weight should be given to the information covered by the certificate and for that reason I have not formally put the parties on notice about or described the potentially adverse material covered by the certificate.
There is other information in the sponsor’s migration history records before me, which suggests that historical allegations have been made that the sponsor’s first marriage was a ‘contrived relationship’. Her former husband sponsored her to come to Australia. I asked the sponsor whether she was aware that there had been allegations made in the past that her first marriage was not a genuine marriage, but was ‘contrived’ to facilitate her migration to Australia. The sponsor said that she was aware of those allegations, and believed that they had been made by her ex-husband after they separated due to domestic violence. The sponsor said that she had become engaged in 2007 and came to Australia in 2009 after her ex-husband sponsored her. She gave evidence that initially, they were happy together and he treated her well; but once she started working in Australia, he started gambling and then developed a pattern of physical violence towards the sponsor. She gave compelling evidence about her experiences and the relationship and said that she stayed with him for some time even though he was abusive, because she wanted the marriage to work. The marriage ended when, on the last occasion, she became so frightened, (thinking he was going to kill her), that she screamed for help. The police were called and had to restrain him. An intervention order was made. That was how her first marriage ended. He was angry that the police were involved and retaliated by saying that she had not ever intended to be in a genuine relationship with him but used him to migrate to Australia. This was not true. She had been committed to the marriage, but his violence destroyed that marriage, and severely impacted on her emotional health and on her capacity to trust anyone else after it ended. The sponsor said that when she met the visa applicant, she could see that he was a warmer person, and felt herself able to trust him not to hurt her for the first time since her marriage had ended. I accept the sponsor’s evidence about her first marriage and the circumstances in which it ended.
I also note that the sponsor was granted a permanent visa after the allegations were made that her first marriage was a ‘contrived’ marriage, which suggests that the existence of a genuine relationship must have been accepted at the time of application, even if that relationship later broke down. In all the circumstances of this case, I give no weight to any allegations that the sponsor was in a contrived relationship with her first husband to facilitate her migration to Australia. For this reason, I have not formally put the adverse information to the visa applicant or sponsor under s.359A of the Act.
There are also notes on the departmental file related to the delegate’s questioning of the visa applicant about his mother’s application for a spouse visa, with him as a dependent on that visa. I asked the applicant about that, and he acknowledged that he had lived in Australia with his mother and stepfather until their application for permanent visas was refused; at which time they returned to Vietnam. He confirmed that after they were required to leave Australia, his mother’s relationship ended, in 2010. According to migration records, the visa applicant first arrived in Australia in 2003 aged 17, holding a prospective partner (subclass 300) visa based on him being a dependent of his mother. I am not assessing the genuineness of the visa applicant’s mother’s relationship and I consider it has no relevance to the matters before me. In so far as there is any implication that the visa applicant has been involved in an application for a visa in Australia which was not based on a genuine relationship, considering his youth at the time of the grant of the visa, I place no adverse weight on that ‘suggestion’ or ‘implication’ in this review. For that reason, while I have discussed it generally with the visa applicant I have not formally put adverse information about his previous visa to the visa applicant or sponsor under s.359A of the Act.
Where a couple have been unable to live and or socialise together due to residence in different countries, assessing the genuineness of the relationship and their future intentions can be complicated by the practical impacts of being apart. For example, how can a pattern of financial support or ‘pooling’ of finances be assessed where, as in this case, they are forced by their separation to maintain separate homes and businesses? Nonetheless, I have discussed and considered the various aspects of the relationship (and their future intentions) described in regulation 1.15A with the visa applicant and sponsor, separately.
The Financial Aspects of the Relationship
Both the visa applicant and the sponsor demonstrated knowledge of each other’s financial affairs.
The visa applicant described how he had previously run a small hotel, called the Saigon River Boutique Hotel but he was forced to close it down when the rent for the lease became too much to manage. He had worked in the business as manager before he bought it. The visa applicant knew about the sponsor’s business, a restaurant called Saigon Yame in Gisborne and when it had opened; he had a good understanding of its’ opening hours, the fact that it is making a loss, and that it was funded in part by a gift from the sponsor’s mother. He knew how many staff were employed, that the sponsor had a mortgage and said that when he arrives in Australia, he expects and intends to share jointly in meeting the sponsor’s debts and liabilities, as well as working with her in the restaurant to make it viable. The visa applicant was mistaken about the size of the mortgage, (thinking it was around $300,000) but I consider that this only reflects that the parties have not specifically discussed that debt since the restaurant has become their main focus. The visa applicant made it clear that he intends to take on and share the sponsor’s debts and financial responsibilities if he is granted the visa and they are able to marry.
The sponsor confirmed that she owns her home with a mortgage of some $400,000 owing, some of which was only recently added to partially finance the opening of the restaurant. She gave evidence about her decision to start the business as a way that she and the visa applicant could own and build something together, and that her mother fully supports her decision about the restaurant (and their relationship) and gifted them $75,000 to help with the establishment. The sponsor said that she chose a restaurant because that is the visa applicant’s area of expertise. She said that he had formerly managed and later owned a small hotel in Saigon, called Saigon River Boutique Hotel but which he closed down in around 2019 (as the visa applicant had earlier described).
The sponsor was aware that the visa applicant has owned a café and computer business in Vietnam since around 2019. The sponsor gave evidence that she always intended that the visa applicant would help her run the restaurant - that was why she chose a restaurant as her business choice; but she has actually found managing it on her own far more stressful than she thought it would be, and has struggled to manage it herself, dealing with staff and stock shortages, low income and her own lack of business experience. She described relying heavily on the visa applicant for advice on a daily basis. Both the applicant and sponsor described their hope that they can make the business work once the visa applicant is present and able to assist in and manage the business. They plan to work in the business together.
The sponsor said that she intends to add the visa applicant to the business as an equal partner and that she will also add him to her property title once they are married.
After considering the financial aspects of their relationship, I am satisfied that the visa applicant and sponsor intend to share and pool income, liabilities and property once they are married. I am satisfied that they each have a reasonable knowledge of the financial affairs of their partner, (particularly of each other’s business income (or loss), as would be expected from a couple planning to marry and build a life together. Consideration of this factor suggests that the applicants are in a genuine and continuing relationship and that they intend to live together as spouses.
The Social Aspects of the Relationship
Due to their physical separation, recent evidence of social activities is not available. Nonetheless, there is evidence that their respective families and friends approve of the relationship and consider it to be a genuine, loving and continuing relationship. I have given those statements, summarised above, some weight towards indicating that the visa applicant and sponsor present themselves as a couple who are planning a life together. I note in particular the evidence in the sponsor’s mother’s statement because she lives with the sponsor and observes that the visa applicant and her daughter speak daily on the telephone and that she sometimes chats to the visa applicant during those calls.
I find that the applicants’ relationship is recognised and supported by their friends and family. The visa applicant’s sister attended and was available to give evidence at the hearing, but due to time constraints it was not deemed possible nor necessary to speak with her. I am satisfied that she and the sponsor have an ongoing and supportive relationship.
Consideration of the social aspects of the relationship suggests that the visa applicant and sponsor present themselves socially as a couple, and that they have made known their intention to marry and to live together as spouses.
The Nature of the Household
During the hearing both applicant and sponsor referred to their intention to live together in the sponsor’s home once married, to share daily tasks, income and liabilities. Both referred to a desire to have a child or children and I accept that they had discussed this and feel they should not delay due to the years that have passed since their engagement and their respective ages. The sponsor said that if they are blessed with a child, she would mainly stay home to care for the child and her husband, and then he would take on the bulk of management of the business. The visa applicant expressed the same intention. They both spoke of a desire to support the other, and also of their own desire to commence their life and family together so that they can enjoy greater intimacy. Consideration of the nature of their proposed household suggests that the visa applicant and sponsor intend to live as husband and wife, sharing family and household responsibilities as necessary.
Nature of commitment to each other.
Both the visa applicant and the sponsor spoke affectionately of their partner. They each expressed love and a desire to support and to ‘be with’ the other in person so that they can start their life ‘together’. The sponsor’s evidence about the restaurant and her desire to start that business expressly so that they have something concrete to share together, both whilst separated but also when the visa applicant arrives in Australia, was compelling. She described how the visa applicant supports her even when she is frustrated and angry with the business or their situation. The sponsor described how the visa applicant will sing ‘at her’ to make her laugh and cheer her up, even though he is a dreadful singer. The visa applicant said that when he gets down or low, the sponsor tries to motivate him, and keep his hopes up. He does the same for her.
I asked each of them (separately) whether, given the time they have been forced to wait for a visa and their long physical separation, they had considered ending the relationship at any stage. The visa applicant responded that he has never thought of doing so because he loves the sponsor. The sponsor said that she has never considered a life without the visa applicant or ending the relationship. Everything she does is for him and their future together.
I asked the sponsor if, in the event that the visa was refused, she would consider moving to Vietnam so that she could be with the visa applicant there. She responded that she has been working to establish a viable and happy future for them here in Australia once the visa applicant arrives - but if he cannot come to Australia, she would be willing to go to Vietnam to be with the applicant, even though she would be leaving her home, business and her mother behind.
It is now more than five years since the application for a visa and I accept that the parties have continued their relationship in those five years, despite the long separation they have endured due to the refusal of the visa and the effect of the pandemic on border closures and international migration. According to general country information, Vietnam only reopened its borders officially in March 2022 to international visitors[1] due to the pandemic. The sponsor’s evidence, which I accept, is that she has not been able to travel since then because she is solely responsible for managing the restaurant. According to the parties and also as reflected on the departmental file, an application for a visitor visa by the visa applicant was also refused so he has been unable to visit Australia. In those circumstances I do not place any weight on the fact that the applicant and sponsor have not seen each other since 2019, and I do not consider it to be an indication that the relationship has ended or is a contrived relationship. I consider their physical separation since 2019 has been due to factors largely outside of their control.
[1] Vietnam Reopens for International Tourism - Vietnam Briefing News (vietnam-briefing.com) May 16 2022
I accept the evidence given by the applicant and sponsor about their commitment to each other and the relationship.
Consideration of the nature of the parties’ commitment to each other suggests that they were in an exclusive and committed relationship at the time of application and that they are still in a committed and exclusive relationship.
After weighing the evidence given by the applicant and sponsor, as discussed above, and each of the factors referred to in regulation 1.15A, I am 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. I am also satisfied that they continue to genuinely intend to live together as spouses at the time of making this decision.
Do the parties continue to meet time of application requirements?
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. As referred to above, I am satisfied that the visa applicant continues to satisfy the criteria in cl 300.211, 300.214, 300.215 and 300.216. Accordingly, cl 300.221 is met.
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.
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:
·cl 300.211, 300.214, 300.215, and 300.216 of Schedule 2 to the Regulations; and
·cl 300.221 of Schedule 2 to the Regulations.
Anne Grant
Member

[2022] AATA 4601

18 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction