Phan (Migration)

[2022] AATA 251

Phan (Migration) [2022] AATA 251 (28 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Huyen Phan

VISA APPLICANT:  Mr Khac Toan Le

REPRESENTATIVE:  Mr Duc-Dung Tran (MARN: 0319577)

CASE NUMBER:  2100917

HOME AFFAIRS REFERENCE(S):          BCC2015/1877256

MEMBER:Steven Griffiths

DATE:28 January 2022

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations; and

·cl 300.214 of Schedule 2 to the Regulations; and

·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.

Statement made on 28 January 2022 at 4:14pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Federal Circuit Court remittal – genuine intention to marry and live together – traditional, unregistered marriage in home country – communication, sponsor’s visits and each party’s relationship with the other’s family – arrangements to marry within a month of applicant entering Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2, cls 300.211, 300.214, 300.215, 300.216, 300.221

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 and Border Protection 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, Mr. Khac Toan Le, applied for the visa on 30 August 2015 on the basis is his relationship with the sponsor, Ms. Thi Huyen Phan. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl 300.211, cl 300.214, cl 300.215, cl 300.216 and cl 300.221.

3. The delegate refused to grant the visa on 4 August 2016 on the basis that the visa applicant did not satisfy cl 300.215 and cl 300.216 of Schedule 2 to the Regulations because the Delegate decided the was not convinced that the parties genuinely intended to marry, nor that the marriage would take place within the visa period.

4. The parties were represented by their registered migration agent, Mr. Duc-Dung Tran, of TransNet BCG.

5. The parties appealed this decision to the Tribunal, with a hearing held on 10 May 2017 and the decision affirmed on 5 June 2017.

6. This matter was before the Federal Circuit Court of Australia, File Number SYG 2195 of 2017, in which the applicant appealed on the decision made by the Administrative Appeals Tribunal on 5 June 2017 to affirm the decision of the Delegate to the Minister to refuse the Partner (Temporary) (Class UK) Visa of the applicant

7. The Federal Circuit Court of Australia, by decision of 27 November 2020, determined that the decision of the Administrative Appeals Tribunal of 5 June 2017 be quashed and the Tribunal be required to reconsider and determine the matter according to law.

8. The Tribunal notes the parties had been invited to appear before the Tribunal on 20/10/21, 18/11/21, 29/11/21 and 6/1/22, with these hearings postponed at the request of the Migration Agent due to the health of the sponsor, with the Tribunal supporting the requests.

9. The Tribunal notes the parties had been invited to appear before the Tribunal on 2/11/21, with this hearing postponed due to the ill health of the Member.

10. The sponsor appeared before the Tribunal on 24 January 2022 to give evidence, respond to question and present arguments. The Tribunal also received oral evidence from the applicant and the mother of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages, with the migration agent taking part in the hearing.

11. The Tribunal resolved during the hearing to provide the parties with the opportunity submit additional information by Monday 31 January 2022, with this offer accepted.

12. The Tribunal notes the parties provided additional information to the Tribunal on 28 January 2022.

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

    BACKGOUND OF THE EVIDENCE

14. Applicant Mr. Le was born in Vietnam in 1971. His parents and siblings all live in Australia, and he was refused a Remaining Relative 115 Visa in February 2007. He was married from 1991 until divorcing in 1995, with a daughter born 1994. 

15. Sponsor Ms. Phan was born in Vietnam in 1980. Her parents and siblings live in Australia, having arrived in 1996. She has 4 daughters, born 2005, 2007, 2010 & 2015, from previous short-term relationships. She is an Australian citizen by grant.

    INFORMATION TO THE TRIBUNAL

16. Since the Department made a decision, the parties have provided further information to the Tribunal including:-

    Tribunal letter to sponsor seeking to determine correct address, 28/1/21

    Tribunal letter to sponsor confirming Federal Circuit  Court remittal of applicant back to Tribunal, 28/1/21

    MR5 Form, Appointment of Representative, 18/3/21

    Movement Record, 15/9/21

    Invitations to hearings set for 20/10/21, 2/11/21, 18/11/21, 29/11/21, 6/1/22 & 24/1/22

    Applicant request for postponement of 4 hearings due to health issues of the sponsor

    Tribunal requirement to postpone hearing set for 2/11/21 due to ill health of Member

    Postage of an item from the applicant in Vietnam to the sponsor 1/3/21

    Money transfers by the sponsor to the applicant – 18/12/19 for $ 500, 27/2/20 for $ 300, 30/4/20 for $ 1000, 15/5/20 for $ 1000, 14/10/20 for $ 1000, 3/11/20 for $ 2000

    23 photos the applicant from a January 2019 trip by the sponsor, her 4 children and the mother of the applicant to Vietnam – with family and friends

    Telephone contract of sponsor, 2 years contract from 16/12/21

    Migration agent post hearing submission, 28/1/22

    5 pages detailing messages and video chat between the sponsor and applicant, October 2021 to January 2022

    ISSUE

17. The issue in the present case is if the parties genuinely intend to marry and live together.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file, the Tribunal file including additional information provided by the applicants prior to and following the hearing and the oral evidence of the hearing.

19. 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, in order to determine whether the visa applicant continues to meet those requirements, it is first necessary to consider whether they were met at the time of the visa application.

    Does the visa applicant intend to marry an eligible person?

20. 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.

21. The Tribunal accepts the documented evidence that the visa sponsor became an Australian citizen by grant.

22. The Tribunal accepts the oral evidence of the parties they will marry within a month of the applicant entering Australia.  

23. Accordingly, the requirements of cl 300.211 are met.

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

24. 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.

25. The Tribunal accepts the documented, photographic and oral evidence of the parties that they were introduced by the sister of the applicant, who is a friend of the sponsor, with the parties speaking regularly and deciding that the sponsor and her children, would travel to Vietnam to meet the applicant, this trip happening in April 2011.

26. The Tribunal accepts the documented, photographic and oral evidence of the parties that the sponsor, often with her children, have travelled to Vietnam to be with the applicant in August 2014, April 2015, March 2017 and February 2019.

27. The Tribunal accepts the documented evidence that these trips by the sponsor and usually her children to Vietnam total approximately 112 days and that the sponsor and children have spent every day of each visit with the applicant.  

28. The Tribunal accepts the documented evidence that the sponsor was 34 and the applicant was 40 years old when they first met.

29. Therefore, at the time of application, the requirements of cl 300.214 were met.

    Do the parties genuinely intend to marry?

30. 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.

31. The Tribunal accepts the oral evidence of the parties that they intend to marry within a month of the applicant entering Australia.   

32. The Tribunal accepts the oral evidence of the parties that their wedding will be held at the home of the sponsor, conducted by a celebrant, with a wedding celebration for the available family and guests to be held that day.

33. The Tribunal accepts the oral evidence of the parties that they will invite their parents, siblings and families, who all live in Australia, to attend the wedding.

34. The Tribunal accepts the documented, photographic and oral evidence of the parties that they held a traditional marriage ceremony in Vietnam on 15/3/17, with the children of the sponsor and the mother of the applicant, and other Vietnam based family and friends attending, to enable the commitment of the parties to each other to be recognised but chose to not have this marriage legally registered as they had determined that they wanted to be married in Australia.

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

    Do the parties genuinely intend to live together?

36. 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.

37. 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.

38. The Tribunal accepts the documented and oral evidence of the parties that they are in contact usually three times per week, using Facebook options, and often discuss their future lives living as a married couple and the needs of the 4 daughters.

39. The Tribunal accepts the documented and oral evidence of the parties that the sponsor will make the arrangements for their wedding in Australia, with the wedding to be performed by a marriage celebrant and family of both parties attending.

40. The Tribunal accepts the documented, photographic and oral evidence of the parties that the sponsor has four daughters, born in 2005, 2007, 2010 and 2015, with all the children having travelled with the sponsor to Vietnam on three of the 6 trips made by the sponsor, and the sponsor and children have lived with the applicant during these trips.

41. The Tribunal accepts the documented and oral evidence of the parties that when the talk to each other, the children of the sponsor are often involved in the discussions.

42. The Tribunal accepts the documented and oral evidence of the parties that the applicant has a good relationship with all of the 4 children, and that he has been a constant male influence in their lives over the last 11 years.

43. The Tribunal accepts the documented, photographic and oral evidence of the parties that the sponsor knows the parents, siblings and the families of the applicant very well, sometimes working for the family on their farm in Renmark, South Australia, and spending the majority of her social time with them.

44. The Tribunal accepts the oral evidence of the parties that the applicant met the parents of the applicant when they were in Vietnam on a trip in 2019, and that he speaks to them by telephone.

45. The Tribunal accepts the documented, photographic and oral evidence of the parties that they committed to a shared life on 5/4/13, with an engagement celebration in Vietnam attend by family and friends. 

46. The Tribunal accepts the documented, photographic and oral evidence of the parties that they held a traditional marriage ceremony in Vietnam on 15/3/17, with the children of the sponsor and the mother of the applicant, and other Vietnam based family and friends attending, to enable the commitment of the parties to each other to be recognised.

47. The Tribunal accepts the oral evidence of the parties that other than the mother of the applicant, no other Australia based relatives of the applicant and sponsor were able to attend the wedding ceremony on 15/3/17.

48. The Tribunal accepts the oral evidence of the parties that for the 112 days the sponsor and children have spent in Vietnam since 2011, the parties have lived together each day.

49. The Tribunal accepts the documented and oral evidence of the parties that they have no joint financial arrangements, with the applicant working in a variety of construction and house painting jobs, depending on season conditions and the availability of work and provided with funds by the sponsor when needed and possible, and by other members of his family when needed, while the sponsor sometimes works for the family of the applicant on their farm but does not work in any other paid employment role, she being the mother of 4 daughters and responding to their daily needs.

50. The Tribunal accepts the oral evidence of the parties that for the 112 days the sponsor and children have spent in Vietnam since 2011, the sponsor and applicant have shared the daily costs. 

51. The Tribunal accepts the oral evidence of the parties that they decided at the time of becoming engaged that they wanted to marry in Australia.

52. The Tribunal accepts the oral evidence of the parties that the sponsor lives in a home that she rents from the sister of the applicant, and when the applicant arrives in Australia they will continue to live in this home.  

53. The Tribunal has had regard to the evidence provided relating to the parties’ intentions as to the social aspects of the relationship, and determines the parties represent themselves to other people as intending to be married to each other, with the opinion of friends and acquaintances about the nature of the relationship being very supportive, and that the parties, when together in Vietnam, had planned and undertaken joint social activities.

54. The Tribunal accepts the photographs of them with family and friends in Vietnam.

55. The Tribunal accepts the documented and oral evidence of the parties that the sponsor became pregnant, and delivered her 4^th daughter, during the relationship with the applicant, with the applicant not the father of the child.

56. The Tribunal accepts the documented and oral evidence of the applicant of the circumstances surrounding this pregnancy, and the information that the sponsor advised the applicant that she was pregnant before the sponsor travelled to Vietnam to be with the applicant when she would have been 3 months pregnant.

57. The Tribunal accepts the documented and oral evidence of the parties that applicant, upon being advised of the pregnancy, confirmed his commitment to the sponsor, confirmed that he was sympathetic to her given the circumstances of the pregnancy and confirmed that he wished to proceed with the relationship and future marriage.

58. The Tribunal accepts the documented evidence of the contact made by the parties over the last 3 months and determines this time to be representative of the contact made by the parties since their commitment to each other in April 2013, with the parties being in contact 3 times per week. The Tribunal places weight on this.

59. The Tribunal accepts the oral evidence of expressions of love and commitment made by the sponsor and visa applicant to each other during the hearing, and deep wish from both for them to all live as a family, and that family have the opportunity to grow, in Australia.

60. The Tribunal accepts the oral evidence of the parties that the applicant has no favourite amongst the children of the sponsor, treating each equally.

61. The Tribunal has had regard to the evidence provided relating to the parties’ intentions as to the nature of the parties’ commitment to each other, including the duration of the relationship, and accepts that they see the relationship as long term.

62. On the basis of the above the Tribunal is satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl 300.216 is met.

    Do the parties continue to meet time of application requirements?

63. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl 300.211, 300.214, 300.215 and 300.216. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses.

64. Based on the evidence before it, the Tribunal is satisfied that at the time of decision, the applicant intends to marry a person who is an Australian citizen (cl.300.211) and that the applicant and the review applicant have met each other in person since each of them turned 18 and are personally known to each other (cl.300.214). For the reasons set out above the Tribunal is satisfied that at the time of decision, the parties continue to genuinely intend to marry and intend to do so during the visa period (cl.300.115) and that they continue to genuinely intend to live together as spouses (cl.300.116).

65. Accordingly, cl.300.221 is met.

66. 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

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:

   ·cl 300.311 of Schedule 2 to the Regulations; and

   ·cl 300.314 of Schedule 2 to the Regulations; and

   ·cl 300.315 of Schedule 2 to the Regulations; and

   ·cl 300.316 of Schedule 2 to the Regulations; and

   ·cl 300.221 of Schedule 2 to the Regulations.

   Steven Griffiths
   Member