Sayaxang (Migration)

[2018] AATA 3597

Sayaxang (Migration) [2018] AATA 3597 (24 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sammy Sayaxang

VISA APPLICANT:  Miss Ly Tho

CASE NUMBER:  1712432

DIBP REFERENCE(S):  BCC2016/1781472

MEMBER:K. Chapman

DATE:24 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 24 August 2018 at 12:21pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Witness credibility – Applicant attempted to conceal details of previous relationship – Relationship contrived to obtain a migration outcome – Evidence provided of relationship contrived for a migration outcome – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359 359AA
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 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 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The visa applicant, Ms Ly Tho, applied for the visa on 19 May 2016. This application was sponsored by her fiancé, Mr Sammy Sayaxang (the ‘review applicant’). The visa applicant is a 23 year old national of Laos. The review applicant is a 58 year old Australian citizen. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. On 26 May 2017, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.300.216 and cl.300.221 of Schedule 2 to the Regulations because of a lack of satisfaction concerning the visa and review applicants’ genuine intention to live together as spouses, both at the time of the visa application and at the time of decision. On 13 June 2017, the review applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application for review.

4. On 5 June 2018, the Tribunal wrote to the review applicant pursuant to subsection 359(2) of the Act inviting him to provide further information in support of his claims that he and the visa applicant genuinely intend to marry and live together as spouses and are known to each other personally. In response, on 19 June 2018, the Tribunal received material including, but not limited to, written submissions, photographs, funds transfer receipts, communication records and statements. All material received prior to the review hearing has been duly considered by the Tribunal.

5. The review applicant appeared before the Tribunal on 3 August 2018 to give evidence and present arguments. The Tribunal also took oral evidence by telephone from the visa applicant, who was located in Laos. The Tribunal hearing was conducted with the assistance of an interpreter in the Lao and English languages, as requested by the review applicant. The review applicant confirmed he understood the interpreter, however for the bulk of his oral evidence he utilised the English language to a proficient standard. Further, early in the oral evidence of the visa applicant, it became apparent that she preferred the use of a Hmong interpreter. The review applicant agreed to translate for the visa applicant and following the provision of her evidence told the Tribunal that he was happy with this arrangement. Accordingly, the Tribunal is satisfied that the review and visa applicants’ were able to participate meaningfully in the review hearing and that they were afforded a fair opportunity to present their case. The Tribunal notes that the registered migration agent of the review applicant was present for the duration of the review hearing and expressed his agreement with the interpreting arrangements adopted by the Tribunal. The review applicant submitted photographs and funds transfer receipts to the Tribunal during the review hearing and they have been duly considered.

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

   ISSUES AND LAW

7. The Prospective Marriage (Temporary) (Class TO) visa is for persons seeking to enter Australia to marry, after their first entry to Australia, an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse, with a view to remaining permanently. In the present matter, the review applicant is an Australian citizen. The issues in the present case are whether the requirements in cl.300.216 and cl.300.221 are met, which requires the Tribunal to be satisfied that the visa and review applicants’ have held a genuine intention to live together as spouses, both at the time of the visa application and at the time of this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has had regard to all of the evidence before it concerning the time of application and the time of decision. Documentary evidence submitted by the parties contained in both the Departmental and Tribunal files includes, but is not limited to, the visa application and sponsorship, Notice of Intended Marriage, identity documents, third party statements in support of the relationship, personal statements, photographs, communication records and funds transfer receipts. The aforementioned material has been duly considered by the Tribunal.

   Evidence of the review applicant (Mr Sammy Sayaxang)

9. The oral evidence of the review applicant may be summarised as follows. He lived with his ex-girlfriend in Australia, Ms Sayphone Hazell, between July 2008 and 2012. The review applicant wanted to marry Ms Hazell but she was not divorced from a prior husband. In 2012, being dissatisfied with the aforementioned relationship, the review applicant ‘ran away’ to Laos to ‘meet someone’. The review applicant met the visa applicant at his sister’s house in her village in Laos during his 2012 visit to that country. The visa applicant invited him to attend the New Year with her. The next day he wanted to visit her again but did not have transport to do so. Ms Hazell travelled to Laos around the same time and persuaded the review applicant to return to Australia with her, at which point their relationship continued.

10. During early 2013, the review applicant continued to reside with Ms Hazell in Australia. He maintained limited contact with the visa applicant during this time. However, he continued to be dissatisfied with his relationship with Ms Hazell because she lied to him about matters including her gambling. The review applicant told the Tribunal that on 19 April 2013 he left the relationship with Ms Hazell and went to live elsewhere with his daughter and son in law. The review applicant then increased his frequency of telephone communication with the visa applicant. He next saw the visa applicant in person in 2015 when he travelled to Laos. The review applicant informed the Tribunal that he remained in contact with Ms Hazell for around one to two months following their relationship breakdown in 2013 and he next saw her in person on 2 June 2015 in Laos.

11. In 2015 the review applicant organised his engagement to the visa applicant via the telephone and around two months later, on 15 May 2015, they held an engagement party together in Laos (with the review applicant arriving in Laos a few days prior to this party). The engagement party took place in the home village of the visa applicant. Their relatives attended and photographs of the party were submitted to the Tribunal and the Department. The review applicant confirmed that no formal clothing was worn for this party, as depicted in these photographs. Both of their families were happy with the engagement. The review applicant advised he was not in a relationship with anyone else at the time he became engaged to the visa applicant. At the time of the engagement party the review and visa applicants planned to marry in Australia. They have not yet married due to the visa not being granted. The review applicant advised that he wants to marry the visa applicant in Australia so his five adult children, who work, may attend.

12. Following the engagement party, the review applicant spent time in the village and took the visa applicant back and forth to Vientiane. The visa applicant accompanied him to the international airport in Vientiane to see him off. On 2 June 2015, the review applicant and the visa applicant were at the airport in Vientiane. By chance, they saw Ms Sayphone Hazell (ex-girlfriend of the review applicant) in the check-in area for the same flight to Thailand (connecting to Australia) as the review applicant was about to take. Ms Hazell was in the company of a man named Lawrence, whom the review applicant knew from Australia, and she had apparently brought him to Laos to meet a lady. The review applicant knew Lawrence because he was a friend of Ms Hazell’s whom he had previously helped to build a shed. The review applicant informed the Tribunal that the visa applicant was not known to Ms Hazell when they met at the airport. The visa applicant did not accompany the review applicant on any flight and returned to her home village in Laos.

13. The review applicant explained that Ms Hazell and Lawrence took the same flights from Vientiane to Bangkok, and then to Australia, as he did. He indicated they were seated separately from him on the two flights and that he did not see them after the first flight boarded. The review applicant told the Tribunal that he did not see either Ms Hazell or Lawrence in Australia once their flight landed. He exited the aircraft and met his son who picked him up at the airport. The review applicant maintained to the Tribunal that it was a coincidence he had seen Ms Hazell at the airport in Vientiane on 2 June 2015 and that he had not seen or spoken with her since 2013. When the Tribunal raised with the review applicant that it might have difficulty accepting the aforementioned evidence indicating such a chance meeting, he maintained his position. The review applicant also confirmed to the Tribunal that he was not in a relationship with Ms Hazell when they met randomly in June 2015 at the airport in Vientiane.

14. The Tribunal invited the review applicant to provide oral evidence concerning the financial aspects of the relationship. He indicated that he has tried to support the visa applicant by sending money transfers. They do not own any major assets together but plan to do so. They do not have joint financial liabilities as they can’t have joint loans due to their migration situation. They have no legal obligations towards each other but plan to buy a house together and open a joint bank account in the future. They also plan to have children together. The Tribunal drew to the review applicant’s attention that aside from some money transfer receipts there appeared to be limited evidence in support of the financial aspects of the relationship, particularly at the time of application, inviting his comment. He replied that he ran short of money, his uncle loaned him some and he has paid half of it back.

15. The Tribunal invited the review applicant to provide oral evidence concerning the nature of the household. He indicated that he lives with his daughter and son in law in Australia by renting in their house. The visa applicant resides with her mother in Laos. They have stayed together at the aforementioned residence when he visits Laos from Australia. They have shared house work there such as cooking and gardening. They do not have children together but plan to do so in Australia. The Tribunal drew to the review applicant’s attention that there appeared to be limited evidence in support of the nature of the household, particularly at the time of application, inviting his comment. He replied that he has sent money to the visa applicant to buy a house and land in Laos which is held in her mother’s name (no documentary evidence of this ownership was before the Tribunal). The review applicant referred to his submitted money transfer receipts.

16. The Tribunal invited the review applicant to provide oral evidence concerning the social aspects of the relationship. He advised that they like to go walking together in Laos and also cooking for the visa applicant’s mother. The review applicant’s two sisters and some of his cousins have met the visa applicant in Laos (he is not related to the visa applicant). The review applicant met the friends and family of the visa applicant at their engagement party. The Tribunal drew to the review applicant’s attention that there appeared to be limited evidence in support of the social aspects of the relationship, particularly at the time of application, inviting his comment. He replied that he is happy to support her.

17. The Tribunal invited the review applicant to provide oral evidence concerning the nature of the persons’ commitment to each other. He advised that it has been nearly seven years since they met in person and they have been in a relationship since their engagement party in 2015. They derive companionship and emotional support from each other by forgiving each other. They have future plans for a house purchase, children and a joint bank account. Both of their health is good. He sees the relationship with the visa applicant as long term until the end of their lives. They kept in touch with each other every day through Messenger and FaceBook video. The Tribunal drew to the review applicant’s attention that there appeared to be limited evidence in support of the nature of the persons’ commitment to each other, particularly at the time of application, inviting his comment. He replied that after the visa application all of his friends know her and they are happy. They know the relationship is genuine and long term.

18. The review applicant advised the Tribunal that he was previously married to Mrs Anne Yia Sayaxang between 1979 and 2007. He has not had contact with his former wife since she left. The review applicant indicated that he was in a relationship with Ms Sayphone Hazell between the end of 2007 and 19 April 2013. He last saw and spoke to Ms Hazell at the airport in Vientiane in 2015 as previously indicated. The visa applicant has had no previous relationships according to the review applicant.

19. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised with the review applicant that the Department of Immigration file (at folio 59) and Departmental Movement records indicate that he travelled on Flight TG473 from Bangkok to Australia on 2 June 2015 with Ms Sayphone Hazell. They both declared each other as the urgent contact person to officials when they arrived in Australia. This flight was taken by the review applicant to return to Australia following his engagement to the visa applicant in Laos during May 2015. The Tribunal also raised that he submitted a Statutory Declaration dated 28 March 2017, and an undated statement entitled ‘This is my story’, in which he indicated his relationship with Ms Sayphone Hazell ended in 2013. Further, the Tribunal drew to the review applicant’s attention that in oral evidence he indicated his relationship with Ms Sayphone Hazell ended in 2013 and that he was single when he became engaged to the visa applicant, and this was accompanied by some vagary and inconsistency. Additionally, the Tribunal raised that neither he nor the visa applicant declared his prior relationship with Ms Sayphone Hazell in the Subclass 300 visa application form or the sponsorship form for the visa.

20. The Tribunal advised that the above information is relevant as it tends to suggest that at the time of the visa application he was not in a genuine fiancé relationship with the visa applicant and the information also casts doubt on both their credibility and the genuineness of the documentary evidence provided in support of the relationship. Accordingly, if the Tribunal relied upon the information it would be the reason or part of the reason to affirm the decision under review. The review applicant confirmed he understood why the information is relevant to the review and the consequences of the Tribunal relying upon it. The Tribunal offered the review applicant more time to comment on or respond to the information. He chose to respond immediately.

21. The review applicant outlined that he met Ms Hazell and her friend in the line at Vientiane Airport and they travelled separately. He denied that Ms Hazell and he listed each other as their urgent contacts. He claimed the Departmental records are wrong. He doesn’t know what Ms Hazell does, they sat separately and they did not help each other fill out their incoming passenger cards. The Tribunal raised with the review applicant that it might have difficulty accepting that he had not seen Ms Hazell from 2013 until the random encounter at Vientiane Airport in 2015, particularly when considered in the context of the Departmental records raised pursuant to s.359AA of the Act, inviting his comment. The review applicant denied that he was together with Ms Hazell at that time or that they listed each other as contacts. The review applicant informed the Tribunal that he is in a genuine relationship with the visa applicant and that he has not been paid money or received inducements to sponsor her visa application.

22. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised with the review applicant that the Department of Immigration file (at folios 59-61) contains a record of interview conducted between the visa applicant and a Departmental officer on 1 March 2017. The record tends to suggest that the visa applicant displayed a limited knowledge of his circumstances and in particular initially she did not advise of him having a prior relationship other than with his ex-wife Anna and she subsequently provided vague details concerning another prior relationship when this was put to her for comment by the officer.

23. The Tribunal advised that the above information is relevant as it tends to suggest that at the time of the visa application the visa applicant had a limited knowledge of his circumstances and was attempting to conceal his relationship with Ms Sayphone Hazell which was not declared in the Subclass 300 visa application or sponsorship. The information also casts doubt on both their credibility and the genuineness of the documentary evidence provided in support of the relationship. Accordingly, if the Tribunal relied upon the information it would be the reason or part of the reason to affirm the decision under review. The review applicant initially indicated he did not understand why the information was relevant and the Tribunal granted an adjournment so he could confer with his representative. Following the adjournment, the Tribunal put all of the s.359AA information to the review applicant again. He then confirmed he understood why the information is relevant to the review and the consequences of the Tribunal relying upon it. The Tribunal offered the review applicant more time to comment on or respond to the information. He chose to respond immediately.

24. The review applicant outlined that when he met the visa applicant she never knew he had a girlfriend before, rather he only explained his ex-wife to her. He later explained he had an ex-girlfriend who he didn’t get along with. The Tribunal raised with the review applicant that by not giving full details of his relationship history to the Department it might tend to suggest that he lacked commitment to the visa applicant, inviting his comment. He replied that they were happy and got engaged. The Tribunal raised with the review applicant that it might have difficulty accepting that Ms Sayphone Hazell was not referred to in the visa application or sponsorship other than for the reason to conceal that relationship, inviting his comment. The review applicant responded that he was just a boyfriend and girlfriend with Ms Hazell and not married to her. The Tribunal raised with the review applicant that the answer to the question in relation to the sponsorship referred to him having no other ‘relationships’ and invited his comment. He denied concealment and maintained that he was only a boyfriend and girlfriend with Ms Hazell. The Tribunal raised with the review applicant that it might have difficulty accepting his evidence given the manner in which the question was answered in light of the other material including his random meeting with Ms Hazell at Vientiane Airport, the ‘urgent contact’ notification upon arrival into Australia and that he was represented. The review applicant did not provide a response to the aforementioned. The Tribunal invited the review applicant to provide any further oral evidence he wished concerning the relationship and he indicated they would continue their relationship no matter what and they would never let go. The Tribunal has carefully considered the oral evidence provided by the review applicant.  

    Evidence of the visa applicant (Ms Ly Tho)

1. As previously outlined the visa applicant gave her oral evidence assisted by the interpretation of the review applicant. The oral evidence of the visa applicant may be summarised as follows. She met the review applicant at a New Year Party in 2012 when he came to visit relatives in Laos. She wants to come to Australia as she loves the review applicant. The visa applicant is not worried that she is young and he is old. When asked by the Tribunal if the review applicant was in another relationship when she met him, the visa applicant replied that she knows he was married before and that he had another relationship. She advised the review applicant’s ex-wife is called Anna and she cannot spell the English name of the other lady he was in a relationship with, citing that she came from Laos.

2. The Tribunal invited the visa applicant to provide oral evidence concerning the financial aspects of the relationship. She indicated that in their future they will have two children and will work together to help each other. The Tribunal invited the visa applicant to provide oral evidence concerning the nature of the household. She indicated that they have lived together when the review applicant visits Laos. They love and help each other. The Tribunal invited the visa applicant to provide oral evidence concerning the social aspects of the relationship. She indicated that they enjoy walking along the Mekong River, shopping at the markets and visiting relatives. They miss each other. The Tribunal invited the visa applicant to provide oral evidence concerning the nature of the persons’ commitment to each other. She indicated that they met in 2012 and became engaged on 15 May 2015 in the village. They had a party and relatives attended. After the party they walked along the river. The visa applicant went with the review applicant to the airport. She saw a friend of hers called Jason but otherwise didn’t see others because she was outside the airport. The visa applicant is not sure the last time that the review applicant had contact with either his ex-wife Anne or Ms Sayphone Hazell.

3. The Tribunal invited the review applicant and representative to raise any questions they might have for the visa applicant. They both declined to do so. The visa applicant concluded her evidence indicating that without the review applicant she doesn’t know how to live and she wants to come to Australia to live with him. The review applicant confirmed he was very happy with the ability that the Tribunal provided for him to take evidence from the visa applicant. He confirmed that he was very happy and was given a fair opportunity to hear from the visa applicant. The review applicant apologised for not mentioning Ms Sayphone Hazell indicating he didn’t know the Australian rules and that she was just a friend. He works hard and is sponsoring the visa applicant because he loves her. He wants the chance to start a new life with her. The review applicant was provided with the opportunity to provide any further evidence he might wish and he indicated he was not happy with some of the work done on his case. The Tribunal offered the representative the opportunity to make oral submissions. He declined to do so.  

   Credibility Concerns

4. As outlined above, the review applicant maintained that he ceased his relationship with Ms Sayphone Hazell in 2013 and did not contact her or see her from that year until he coincidentally saw her at the Vientiane Airport in 2015, when he was departing the country following his engagement to the visa applicant. He denied being in contact with Ms Hazell in spite of the Departmental records raised with him pursuant to s.359AA of the Act. The Tribunal finds it implausible, to the point of being fanciful and far fetched, that the review applicant coincidentally saw Ms Hazell some two years after their relationship ceased and by chance they were booked on the same flights from Vientiane to Bangkok and from there to Australia. That the review applicant persisted with such an implausible narrative before the Tribunal seriously undermined his credibility. On balance, the Tribunal places high weight upon the Departmental records given their official source and prefers that evidence to the oral evidence of the review applicant in response.

5. As previously described, the Departmental record of interview with respect to the visa applicant, raised pursuant to s.359AA of the Act, indicates that she displayed a limited knowledge of the review applicant’s circumstances and in particular initially she did not advise of him having a prior relationship other than with his ex-wife Anna and subsequently she provided vague details concerning another prior relationship when this was put to her for comment by the officer. The Tribunal prefers the contemporaneous record compiled by the Departmental officer to the unconvincing evidence offered by the review applicant seeking to downplay the nature of his relationship with Ms Hazell (with whom, on his own evidence, he had a cohabitating relationship). Following careful consideration, the Tribunal does not accept that the review applicant’s oral evidence undermines the veracity of the Departmental record of interview.

6. The Tribunal considers that Departmental interviews, when conducted appropriately, are an important safeguard of the integrity of the Australian migration program as they provide a contemporaneous record of circumstances at a more proximate time to the lodgement of the visa application than at the time of review. There is no persuasive evidence before the Tribunal that the interview was conducted inappropriately. For reasons previously expressed, the Tribunal prefers the evidence contained in the Departmental record of interview, indicating the limited display of knowledge by the visa applicant and that she attempted to conceal the existence of a relationship between the review applicant and Ms Hazell. The aforementioned aspects of the Departmental record of interview are afforded high weight by the Tribunal given the record’s characteristics and contemporaneous nature.

7. The Tribunal further notes that acknowledgement of the review applicant’s relationship with Ms Hazell was omitted in the Subclass 300 visa application and sponsorship. This further undermines both the credibility of the review and visa applicants, and the veracity of their purported fiancé relationship, when considered in conjunction with the circumstances referred to above. On balance, the Tribunal considers that the review and visa applicants have deliberately sought to conceal the former’s relationship with Ms Hazell from the Department. They have done so because that relationship was ongoing at the time of the Subclass 300 visa application and the purported fiancé relationship between the review and visa applicants is a contrivance. The Tribunal so finds. The Tribunal has also formed the view that the documentary evidence submitted in support of the visa and review applications is in furtherance of a contrivance designed to secure a migration outcome. Accordingly, such evidence is afforded only limited weight. Following careful consideration, the Tribunal finds that the purported fiancée relationship between the review and visa applicants is a sham and a false relationship.

   Do the parties genuinely intend to live together as spouses?

8. 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).

9. 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.

   Circumstances of the relationship

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

    The financial aspects of the relationship

11. The Tribunal had before it documentary evidence pertaining to the financial aspects of the relationship including, but not limited to, funds transfer receipts and statements in support of the relationship. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence of the review and visa applicants with respect to the financial aspects of the relationship. The aforementioned documentary and oral evidence is afforded some weight. The Tribunal finds that there is no joint ownership of real estate or other major assets, no joint liabilities, limited pooling of financial resources (and none with respect to major financial commitments), no legal obligations are owed between the parties, and limited sharing of day to day household expenses took place when the parties were together in Laos. However, the evidence outlined above which is suggestive of the attempted concealment of the review applicant’s relationship with Ms Sayphone Hazell and the contrived relationship between the review and visa applicants is afforded high weight by the Tribunal. This evidence afforded high weight points to the purported fiancée relationship being a sham and a false relationship and accordingly it is afforded higher weight than the evidence submitted in support of the financial aspects of the relationship. For completeness, the Tribunal finds that the evidence submitted in support of the financial aspects of the relationship is of a contrived nature in furtherance of attempting to legitimise the sham and false fiancée relationship.

    The nature of the household

12. The Tribunal had before it documentary evidence pertaining to the nature of the household including, but not limited to, photographs, travel records, statements in support of the relationship and registration documents. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence of the review and visa applicants with respect to the nature of the household. The aforementioned documentary and oral evidence is afforded some weight. The Tribunal finds that there is no evidence of joint responsibility for the care and support of children, some evidence of living arrangements by way of cohabitation in Laos, and some evidence of the sharing of responsibility for housework. However, the evidence outlined above which is suggestive of the attempted concealment of the review applicant’s relationship with Ms Sayphone Hazell and the contrived relationship between the review and visa applicants is afforded high weight by the Tribunal. This evidence afforded high weight points to the purported fiancée relationship being a sham and a false relationship and accordingly it is afforded higher weight than the evidence submitted in support of the nature of the household. For completeness, the Tribunal finds that the evidence submitted in support of the nature of the household is of a contrived nature in furtherance of attempting to legitimise the sham and false fiancée relationship.

    The social aspects of the relationship

13. The Tribunal had before it documentary evidence pertaining to the social aspects of the relationship including, but not limited to, travel documentation, statements in support of the relationship, photographs and registration documents. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence of the review and visa applicants with respect to the social aspects of the relationship. The aforementioned documentary and oral evidence is afforded some weight. The Tribunal finds that there is some evidence that the parties represent themselves to other people as being engaged to each other, there is some evidence of family, friends and acquaintances recognising the parties as being engaged to each other, and there is some evidence that the parties have undertaken joint social activities. However, the evidence outlined above which is suggestive of the attempted concealment of the review applicant’s relationship with Ms Sayphone Hazell and the contrived relationship between the review and visa applicants is afforded high weight by the Tribunal. This evidence afforded high weight points to the purported fiancée relationship being a sham and a false relationship and accordingly it is afforded higher weight than the evidence submitted in support of the social aspects of the relationship. For completeness, the Tribunal finds that the evidence submitted in support of the social aspects of the relationship is of a contrived nature in furtherance of attempting to legitimise the sham and false fiancée relationship.

    The nature of the persons’ commitment to each other

14. The Tribunal had before it documentary evidence pertaining to the nature of the persons’ commitment to each other including, but not limited to, communication records, statements in support of the relationship, a Notice of Intended Marriage, travel documentation and registration documentation. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence of the review and visa applicants with respect to the nature of the persons’ commitment to each other. The aforementioned documentary and oral evidence is afforded some weight. The Tribunal finds that there is some evidence that the parties’ have represented themselves as being in a fiancé relationship with each other since 2015, there is some evidence that they have cohabitated together during the review applicant’s visits to Laos, there is some evidence that they draw some degree of companionship and emotional support from each other, and there is some evidence that the parties see the relationship as a long term one. However, the evidence outlined above which is suggestive of the attempted concealment of the review applicant’s relationship with Ms Sayphone Hazell and the contrived relationship between the review and visa applicants is afforded high weight by the Tribunal. This evidence afforded high weight points to the purported fiancée relationship being a sham and a false relationship and accordingly it is afforded higher weight than the evidence submitted in support of the nature of the persons’ commitment to each other. For completeness, the Tribunal finds that the evidence submitted in support of the nature of the persons’ commitment to each other is of a contrived nature in furtherance of attempting to legitimise the sham and false fiancée relationship.

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

15. Following consideration of the documentary and oral evidence described above, the Tribunal considers that the fiancée relationship between the review and visa applicants is a sham and a false relationship designed to secure a migration outcome. For reasons previously expressed, the Tribunal affords high weight to the evidence which is suggestive of the attempted concealment of the review applicant’s relationship with Ms Sayphone Hazell and the contrived relationship between the review and visa applicants. That evidence is preferred by the Tribunal to the evidence submitted in support of the review application. Therefore, the Tribunal finds that at the time of application the parties did not genuinely intend to live together as spouses. Accordingly, the visa applicant does not meet the requirements in cl.300.216.

    Do the parties continue to meet time of application requirements?

16. 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, the 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.

17. Having regard to the matters outlined above, the Tribunal finds that at the time of application the parties did not genuinely intend to live together as spouses, and therefore the requirements of cl.300.216 are not satisfied by the visa applicant. It follows that the visa applicant does not satisfy the requirements of cl.300.221.

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

    DECISION

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

    K. Chapman
    Member