Seang (Migration)

[2017] AATA 1493

Seang (Migration) [2017] AATA 1493 (1 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Chantha Seang

VISA APPLICANT:  Mr Pisal Sok

CASE NUMBER:  1616666

DIBP REFERENCE(S):  BCC2016/402132

MEMBER:Michael Cooke

DATE:1 September 2017

PLACE OF DECISION:  Sydney

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.300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 01 September 2017 at 4:25pm

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 – Genuine relationship – Family approval – Prolonged visitation and engagement protocol – Money transfers – Child of the relationship

LEGISLATION

Migration Act 1958, ss 5F, 65,

Migration Regulation 1994, Schedule 2 cl 300.216, 300.221, r 1.15A

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 applied for the visa on 25 January 2016. 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 includecl.300.216.

3. The delegate refused to grant the visa on 13 September 2016 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the parties genuinely intended to live together as spouses.

4. The review applicant sponsor appeared before the Tribunal on 14 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from th evisa applicant by telephone from Cambodia. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. The Tribunal received a submission from the applicant’s representative in which she addresses the findings of the delegate and provided additional information pursuant to to the case (T1, ff.129-132). The information also included a birth certificate for the parties’ Australian citizen son - Ronan HONG (T1, f.138). Also included was a current Notice of Intention to Marry Certificate (T1, ff. 133-136).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is the genuineness of the parties’ fiancé relationship and their continuing intention to live together as spouses.

   Do the parties genuinely intend to live together?

9. 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 husband and wife 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.

10. 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 parties live in different countries but the applicant has sent the sponsor money.

    ·The parties were introduced by a family member. The sponsor had been in a previous relationship which foundered leaving her with a child to raise. The parties began a prolonged visitation and engagement protocol over 3 months in Cambodia which ended in engagement.

    ·The parties had the blessing and encouragement of their family members and friends many of whom have deposed that they recognize the relationship.

    ·The sponsor has provided copious evidence of telephone traffic between the parties.

    ·The sponsor returned to Australia and later gave birth to a son (Ronan) by the applicant. Her maternal situation did not permit her to return to Cambodia immediately and she intends to do so in the near future.

11. 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?

12. 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. The Tribunal finds that the applicant does continue to satisfy 300.211, 300.214, 300.215, and 300.216 at time of decision. Accordingly, cl.300.221 is met.

13. 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

14. 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.300.216 of Schedule 2 to the Regulations

    ·cl.300.221 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member