Quach (Migration)

Quach (Migration) [2019] AATA 1107 (7 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Cam Oanh Quach
VISA APPLICANTS:  Mr Quoc Nam Tran
Mr Quoc Thinh Tran
Miss Thi Be Thao Tran
CASE NUMBER:  1616173
DIBP REFERENCE:  OSF2015/071294
MEMBER:Rosa Gagliardi
DATE:7 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.
Statement made on 07 January 2019 at 1:33pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – insufficient evidence to demonstrate parties genuinely intend to live together as spouses – marriage for the purpose of gaining migration outcome – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359AA
Migration Regulations 1994, r 1.15A, Schedule 2, cl 300.216

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 18 November 2015. 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. Relevantly to this matter the primary criteria include cl.300.216.
The delegate refused to grant the visas on 22 September 2016 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because there was insufficient evidence to demonstrate that the parties genuinely intend to live together as spouses (as defined by s.5F).
The review applicant/sponsor appeared before the Tribunal on 26 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant overseas. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
NB: Please note that from hereon in the Tribunal will refer to the first named visa applicant as “the visa applicant” for ease of reference.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The visa applicant and sponsor have provided information to indicate that the visa applicant is a 48 year old male from Bac Lieu province. He has declared that he divorced his first wife in March 2014. There are three children from this relationship and two of these are included in this application. It is claimed by the sponsor at hearing that the eldest child was adopted and would remain in Vietnam with his grandparents.
The sponsor is a 52 year old Australian citizen who has declared that she divorced her first husband in 2005. She has no children. All her siblings bar one (who was sponsored to Australia on a Partner visa) live in Vietnam. The sponsor is originally from Ca Mau.
The parties gave evidence at hearing that they met/saw each other at the funeral of the sponsor’s mother in 2013 through the sponsor’s brother who is a friend of the applicant, even though they did not start a relationship at that time. The applicant at hearing when pressed to provide details about exactly how they met, stated that they became friends in 2014 as the sponsor travelled to Vietnam on 31 May 2014, where it is claimed they spent time together and developed their relationship. The sponsor returned to Australia on 3 July 2014.
It is claimed the parties maintained contact and the applicant proposed marriage to the sponsor. An engagement was held on 4 September 2014 in Vietnam.
Do the parties genuinely intend to live together?
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 r.1.15A(3) for spousal relationships: r.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.
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 relationship
At the time of application the evidence showed that the sponsor had sent money transfers to the applicant from 22 October 2014 to 3 May 2015 totalling AUD$2500. At the time of review further evidence was submitted of funds being sent by the sponsor to the applicant (dates not discernible).
The Tribunal places some weight on these transfers as evidence of the parties making some attempt to pool their resources. The Tribunal would not expect the parties to have set up, for example, a joint bank account. The Tribunal is mindful that the parties are living geographically apart and considers that it would be unreasonable to place adverse weight on any limitations on evidence regarding joint ownership of assets, joint liabilities; legal obligations owed to the other party; and any sharing of day to day household expenses.
The practicalities of the parties’ circumstances do not lend themselves to being able to combine their resources to the extent that applicants living together onshore might be able to do so. Further, the sponsor’s circumstances are modest. She claimed at hearing that she is living in a two bedroom government housing residence and pays $125 a week in rent. She also earns money part-time working on a farm in Victoria. The sponsor claims to work on a farm in Vietnam. In such circumstances the possibility to have joint ownership of assets, joint liabilities and legal obligations toward one another are unrealistic.
Currently, the parties are taking care of their individual household expenses and this is also unremarkable.
The nature of the household
In considering the nature of the household, the Tribunal has had regard to the parties’ domestic and living arrangements when the sponsor is in Vietnam, including any joint responsibility for care and support of children and sharing of housework.
The Tribunal understands that it is claimed that the applicant is currently living with his two younger children and his parents.
The sponsor initially revealed that she had a “boarder” of sorts, being her nephew, who was studying in Australia. She stated that her nephew did not pay board. Later in the hearing she also revealed that a niece from Vietnam would be coming to live with her in Australia to study.
The sponsor has travelled to Vietnam on the following occasions as reflected by her movement records, in addition to the previous approximate annual travel, prior to the alleged meeting with the applicant at her mother’s funeral in 2013, as claimed:
·31 May 2014 – departed Australia
·31 August 2014 – departed Australia
·28 July 2015 – departed Australia
·26 February 2016 – departed Australia
·4 November 2016 – departed Australia
·21 July 2017 – departed Australia
·15 October 2017 – departed Australia.
The parties have also claimed to have resided together in Thanh Binh Hotel in Dalat on

2 and 3 August 2015. A receipt in both names has been submitted.
The Tribunal notes that the sponsor did not travel to Vietnam in 2018 because she was awaiting a hearing with the Tribunal, and the Tribunal does not place any adverse weight on the fact the sponsor has not travelled to Vietnam in 2018 (as at the time of hearing).
The Tribunal accepts that the parties are living apart due to the visa requirements and their respective geographical locations and considers it would be unreasonable for the parties to demonstrate to a great extent, that they share household expenses for a common household. Nonetheless, the above pattern of travel would have provided the parties ample opportunities to share a household and demonstrate that they have lived together as a couple, and together with the primary applicant’s children as a family.
On the one hand, the frequent travel could point to the sponsor investing financially in the relationship by using any savings she might have been able to make from her limited financial capacity. On the other hand, the Tribunal notes that the sponsor has several siblings overseas so it is difficult for the Tribunal, on the basis of the evidence before it, to conclude that any overseas travel was not largely in part to see her family. While the Tribunal accepts that the sponsor travelled overseas on the above dates, taken together with other concerns raised in this decision, the Tribunal is not persuaded that the travel has been for the purpose of developing her relationship with the visa applicants. Indeed, the Tribunal has concerns that the travel has been solely an opportunity for the parties to take photographs and provide evidence to support their case that they genuinely intend to marry and live together as spouses.
At the time of application, the Department noted the paucity of evidence of the parties having shared a household as persons who genuinely intended to live together as spouses, and this scarceness in evidence continued at the time of hearing and writing of this decision.
The Tribunal has had regard to the evidence submitted to support the claim that the parties resided together in Vietnam on two occasions. The parties submitted at the time of application a temporary household registration at the address of the applicant in Bac Lieu province, from 31 August 2014 to 18 September 2014, and from 28 July to 21 August 2015. The Tribunal noted that post 2015, however, no household registrations had been provided to the Department or the Tribunal, as evidence that the parties had shared a household on the sponsor’s travels to Vietnam. At the hearing the Tribunal noted the absence of household Registrations for travel post 2015 and requested these. No further household registrations showing the parties’ living arrangements in Vietnam have been submitted. Given the concerns expressed below about where the applicant’s ex-spouse was registered as living after her divorce to the applicant (being March 2014), the Tribunal places limited weight on the household registrations showing that the sponsor had registered on two occasions at the home of the applicant. This is particularly so as the household registrations are not definitive evidence that during the period of the registration the sponsor did not live elsewhere and that indeed the parties lived in the abode of the applicant as two persons who genuinely intend to live together as spouses and as a family unit.
The Tribunal’s concerns about these matters are exacerbated because the sponsor was able to provide to the Tribunal little detail about her relationship with the applicant’s children (discussed below) and how their daily lives were spent together during her time in Vietnam.
The Tribunal put to the parties at hearing under s.359AA of the Migration Act that it had information to show that the applicant’s ex-spouse was still registered in his father’s household registration booklet up until October 2014 as the “daughter-in-law”, even though she and the applicant had divorced in March 2014.
The sponsor stated at hearing that she did not know about the registration. She stated that the applicant had told her that he was divorced and had shown her the divorce certificate, and she had accepted it. The applicant stated that his ex-wife had now been removed from the household registration. The Tribunal asked the parties to provide a household registration for the applicant’s ex-spouse for the past couple of years to show updated information that the applicant’s ex-spouse had genuinely divorced the applicant. In his submission to the Tribunal after the hearing, dated 15 October 2018, the migration agent, Dr Ngo, wrote:
As you will note from the “Household Registration Book” the name of the visa applicant’s ex-wife TRAN Thi Be Lan, daughter-in-law of the family head, has now been deregistered. In reality she has left this residential address since she separated from her husband and returned to leave (sic) at her native village where she was not required to re-register her name immediately. That had been the reason as to why she had not deregistered her name at the time she left the household. Further as we have mentioned in our previous submission the address of the applicant’s father, where his ex-wife was registered, was in different (sic) from the hamlet, commune and district, where the visa applicant’s name was registered in his mother’s Family Registration Book.
The Tribunal is prepared to accept that the applicant’s former spouse has now been removed from the household registration. However, the concerns remain about where his ex-wife is currently living, and has been living, since her claimed divorce from the applicant. The Tribunal is not convinced that because the applicant’s ex-wife might have, at some point after October 2014, removed herself from the household registration of the applicant’s father,
after it became evident that it presented a problem for the applicants’ application, ipso facto, means that the applicant and his ex-wife have severed their spousal ties. What it does demonstrate is that the household registration system appears to be an unreliable reflection of where people might be at any time, given that a person is not, according to the migration agent, required to re-register when they return to their native village. The most likely explanation is that no evidence has been submitted of where the applicant’s ex-wife is living because it is not favourable to the applicant.
The migration agent is also arguing that the fact the applicant was not registered at his father’s home, but at his mother’s home, should reassure the Tribunal that the applicant and his former wife were no longer in a spousal relationship. The Tribunal does not find this argument convincing, however. The applicant stated that his father worked away from home and was registered elsewhere with his former “daughter-in-law”, while the applicant was registered with his mother. Regardless of the applicant being registered under a separate household registration from his former wife as at October 2014, the fact remains that after his divorce, the applicant’s claimed former wife was still representing herself to the authorities as the applicant’s father’s daughter-in-law as late as October 2014, raising questions in the mind of the Tribunal as to whether the applicant deliberately registered at a different address from his former spouse to make it appear that he and his former wife were no longer living together, and whether the sponsor and his former wife lived temporarily apart so that the household registrations would camouflage that he and his former wife were still in a spousal relationship. If the applicant and his former wife were genuinely living separately and apart on a permanent basis, there appears to be no reason why she would not have removed her name from the applicant’s father’s household registration sometime soon after her divorce.
The parties have also submitted 5 photo albums (one has few photos) containing photos of the parties in household situations and eating meals with others. The Tribunal places some weight on these photographs. Having said this, the Tribunal had difficulty at hearing ascertaining from the parties how their family unit operated when the visa applicant was in Vietnam.
For example, the Tribunal asked both parties on several occasions how the applicant’s children perceive the sponsor and how they interact together. The Tribunal noted that the sponsor was the children’s step-mother and in Australia, would be their only mother, and asked her to discuss the relationship between her and the children. The sponsor responded that they were very close. She stated she was sponsoring them to come to Australia and they would go to school. The Tribunal noted that she did work part-time so what plan did she have for the care of two young children. She stated that she would show them the way (to school). The Tribunal noted that her mothering role would entail more than simply taking the children to school and could she provide insight into her relationship with the children. The sponsor stated that the relationship was “like a mother and children”. She herself had never had children. Asked to give examples, she stated that she looked after the children like a mother. Pressed again to provide examples, she stated that she cooked in Vietnam and looked after them and brought them shopping to buy clothes.
The applicant advanced that the sponsor loved the children.
The sponsor is also living in government subsided accommodation. Given she has a niece living with her and a nephew on the way, and the accommodation only has two bedrooms, the Tribunal asked the sponsor at hearing whether she had reported to the relevant housing agency that the three applicants were due to arrive in Australia, and that she would require more appropriate accommodation. The sponsor stated that she had told them but they told her to tell them when the applicants arrived. As for her niece, the sponsor stated that she would look for accommodation elsewhere as she had other relatives in Australia. Little evidence has been submitted to demonstrate that the sponsor has made efforts to procure more spacious accommodation for herself, her putative fiancé and step-children to ensure they could be appropriately housed on arrival. The Tribunal finds it difficult to accept that were the sponsor and the applicant genuinely intending to live together as spouses that the sponsor could only provide vague statements about enquiries with an already stretched government housing agency, which would need to have specific details about accommodation requirements well in advance of the applicants’ arrival.
The Tribunal has concerns about the limited evidence submitted to support the claim that the sponsor has a relationship as a step-mother to the children. The little oral evidence provided in this regard, was particularly general and vague. All the above matters cast doubt that the parties had, and have, sharing responsibilities for the applicant’s children (who the applicant claims he has full custody of) and that they have shared, and will share, a household as two persons who genuinely intend to live together as spouses.
Social aspects of the relationship
At the time of application the parties submitted photographs with friends and family and photographic evidence that they had travelled together. The photos of the engagement ceremony and reception demonstrate that both sides of the family attended. The Tribunal places some weight on this photographic evidence but has reservations given it is not clear to the Tribunal whether such photographic material was put together for the sole purpose of the application, given it has been difficult for the Tribunal to discern whether the parties have actually lived together as persons with a genuine intention to live together as spouses in Vietnam.

At the time of application the Department noted that apart from the photos and the parties’ own relationship statements, there was limited other evidence that the parties represented themselves to other people as genuinely intending to live together as spouses. The Tribunal in particular notes the paucity of evidence regarding the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities. As noted by the Tribunal at hearing, there was little before it to show that other parties recognised the relationship as being genuine and continuing and there were few observations about why they considered this to be the case. At hearing the sponsor stated that she had few friends in Australia and that is why she had not been able to submit evidence at the time of application.
After the Tribunal expressed its serious concerns at hearing that few persons, either close family or friends, had been prepared to stake their views on the relationship with statements, the parties have now submitted three statutory declarations regarding the relationship by way of Forms 888. One of the declarants is the applicant’s father. He has declared that he has known the sponsor for 4 years since she became his son’s fiancée. He had been living in Bac Lieu but writes that he arrived in Australia as a Visitor and had been living with his daughter since September 2018. He wrote that he believed that the relationship of his son and his daughter-in-law was genuine and continuing. He hosted their engagement ceremony in Vietnam and stated that he would return to Australia to host their wedding once his son arrived here. He also wrote that he was happy with his daughter-in-law. The Tribunal places some weight on this declaration in that the applicant’s father states he is aware of the relationship, even if he provides little insight into how the applicant and his children and the sponsor intend to share their family life in Australia.
The applicant’s brother who appears to be living in Australia also provided a declaration stating, among other things, that the parties had told him they were very happy and expressing awareness of their engagement, and that he was invited to the wedding in Australia. He also wrote that he believed that his sister-in-law contacted the local schools regarding the classes of the secondary applicants, but does not provide how he is aware of this, and why he would mention it. The Tribunal is concerned that the applicant’s brother has raised this because at hearing the Tribunal noted the limited direct evidence from the school, for example, that the sponsor had made any effort to inquire about enrolling children to ensure they had places with an education provider on arrival in Australia. The Tribunal considers it odd that the applicant’s brother should focus on this aspect rather than provide a meaningful opinion about why he considers the relationship to be genuine and continuing.
The applicant’s first cousin has now also submitted a statutory declaration stating that he/she has spoken to the sponsor often, and that he/she understands that they have been engaged to each other and he/she was invited to the wedding. The applicant’s cousin also makes reference to the sponsor having been in contact with the local school in respect of the applicant’s two children, with little detail about why the relationship is genuine and continuing.
The Tribunal places some, albeit limited weight, on these statements as they were clearly not provided in a spontaneous manner. At the time of review the Tribunal considers that the evidence pointing to the parties representing themselves to other people as genuinely intending to live together as spouses continues to be weak, and unconvincing.
Mutual commitment to one another
The sponsor has one some sibling living in Australia, and it would appear that the applicant has several, including his father who is here temporarily. The balance of the sponsor’s siblings are living in Vietnam, and according to the sponsor, she has few friends in Australia. The parties were not able to provide any persuasive responses as to why it was so important, after a four year engagement, that they marry in Australia, rather than have a marriage ceremony in Vietnam to cement their relationship in front of the majority of the parties’ families. The fact that the parties appear to want to marry only in Australia leads the Tribunal to question whether the engagement has been a device to enable the applicants to come onshore for the sole purpose of achieving a migration outcome, and not because the sponsor and the applicant genuinely intend to live together as spouses as defined.
These concerns are heightened because the Tribunal has little authoritative evidence that the sponsor has made any efforts to organise future accommodation for her and the applicants on arrival in Australia, even though she has now had four years’ notice that the accommodation she is living in may not be suitable for a family, and given the housing agency would have some expectation about being informed of any changes to occupancy and requirements.
Similarly, the Tribunal did not find the sponsor’s statements that she had gone with a friend to a local school to inquire about the secondary applicants’ schooling convincing, particularly as there is little evidence from the school that the sponsor has made such inquiries. Nor did the sponsor offer this information spontaneously, but was prompted by the Tribunal in terms of encouraging her to speak about what concrete arrangements she had made for the arrival of the children.
Of concern also is the fact that the Tribunal was unable to gauge any joint planning by the parties for their future together in Australia as a family. The applicant and sponsor at hearing stated that in terms of concrete arrangements about their future, the sponsor had arranged for the applicant to work in a bakery in Australia, raising concerns about whether the applicant and sponsor genuinely intend to live together as spouses, or whether the parties intend to live separately and apart on a permanent basis on arrival in Australia.
The Tribunal has sighted the extensive material submitted showing phone calls and other media used for communication purposes between the parties. The Tribunal places some weight on this evidence but notes that from the hearing, the Tribunal was unable to discern the purpose of any such discussions and communications as the parties were unable to provide the Tribunal with any meaningful evidence that they had jointly discussed their plans for the family on arrival in Australia in terms of their living arrangements, the children’s schooling and how the parties would make a transition to a family unit. The Tribunal has serious concerns about these matters.
The Tribunal notes that the Department noted that the relationship had the hallmarks of persons where the applicant divorces their spouse in name only, and marries an Australian citizen/permanent resident for the sole purpose of gaining a migration outcome. The Tribunal cannot conclusively say that the applicant continues to have a relationship with his former spouse, but given his former spouse was registered at the home of the father of the applicant for a good period after the applicant’s divorce, the Tribunal has doubts about this matter. This is particularly so as when the Tribunal asked the sponsor why the mother of the children would abandon them completely to their father who has full custody, the sponsor was unable to provide any convincing response. Her inability to provide any meaningful insight into the living arrangements of the secondary applicants and their relationship with their biological mother, raises concerns for the Tribunal that the applicants have been living with the primary applicant in preparation for migration to Australia solely, and not because the parties genuinely intend to live together as spouses.
The Tribunal accepts that the putative relationship has been in existence for four years now, and in other circumstances would be considered long-standing, but the Tribunal is not satisfied that the parties’ refusal to progress the relationship to marriage within this lengthy period, is not simply because the parties never intend to live together as spouses and that the application is for the sole purpose of assisting the applicants achieve a migration outcome. This brings into question the parties’ commitment to one another and whether it is exclusive of others. For the reasons raised above, the Tribunal has concerns that the parties do not share a vision of a life together as a family unit and that they do not provide one another with companionship and support. The Tribunal also does not accept that beyond the applicants’ achieving a migration outcome, the parties see the relationship as long-term because the Tribunal does not accept that the parties genuinely intend to live together as spouses.
On the basis of the above the Tribunal is not satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl.300.216 is not met.
For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.
Rosa Gagliardi
Member

[2019] AATA 1107

7 January 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention