Sok (Migration)

[2023] AATA 2640

Sok (Migration) [2023] AATA 2640 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Soktin Sok

VISA APPLICANTS:  Ms Sokheng Liv
Miss Lyhuo Ngoem
Miss Lyhor Ngoem

REPRESENTATIVE:  Ms Nikhom Wong (MARN: 1171875)

CASE NUMBER:  1901348

HOME AFFAIRS REFERENCE(S):          BCC2017/3348828

MEMBER:Rachel Westaway

DATE:29 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

· cl 300.221A of Schedule 2 to the Regulations

The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the secondary visa applicants meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

· cl. 300.321 of Schedule 2 to the Regulations

Statement made on 29 June 2023 at 2:36am

CATCHWORDS
MIGRATION –Prospective Marriage (Temporary) (Class TO) visa – subclass 300– visa applicant is free to marry the review applicant at the time of this decision – no impediment to the marriage in Australian law – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 2.08E, Schedule 2, cls 300.221A, 300.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 14 September 2017. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). 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. 300.221A of Schedule 2 of the Regulations.

3. The delegate refused to grant the visas on 18 January 2019 on the basis that the first named visa applicant did not satisfy cl 300.221A of Schedule 2 to the Regulations because the delegate was unable to be satisfied that the applicant and the sponsor were free to marry and therefore could not be satisfied that there was no impediment to marriage in Australian law.

4. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether there is any impediment for the applicant or sponsor to marry under Australian law.

   Background

7. The primary applicant, Sokheng Liv, is a Cambodian national and was born on 8 March 1985 and is 38 years old. The primary applicant stated that she had been in a previous de facto relationship which ended on 18 April 2013, and there were two children of this relationship – the secondary applicants.

8. The secondary applicants, Lyhuo Ngoem and Lyhor Ngoem, are Cambodian nationals and were born on 17 November 2007 to the primary applicant and her former de facto partner, Hu Sokthy, and are currently 15 years old.

9. The sponsor, Soktin Sok, is an Australian citizen who was born on 5 February 1950 and is 73 years old. The sponsor stated in the application that he has been in a previous de facto relationship which ended in 2002 due to the relationship breaking down. He stated that there were four children from this relationship. The sponsor also stated that he had previously sponsored a fiancée’s Prospective Marriage application on 7 June 2016, but that the relationship ended in June 2017, and he had withdrawn his sponsorship as of 15 June 2017.

10. The sponsor states that he was introduced to the primary applicant through friends who live with him, as well as friends who live in Cambodia. The primary applicant and sponsor claim to have met in person for the first time on 1 July 2017 at the primary applicant’s brother’s house in Kampong Cham, Cambodia. The sponsor states that he felt very attracted to her, and despite her being younger, found she possessed all the qualities he wanted in a wife. Shortly after meeting, the primary applicant’s parents found out that the couple had feelings for one another and approved of the relationship.

11. The couple committed to a shared life together to the exclusion of all others on 15 July 2017 when they became engaged at an engagement party organised by the primary applicant’s parents amongst 30 close family and friends.

12. The sponsor returned to Australia on 29 July 2017 and states that the couple have maintained contact via phone every day, and that they intend to get married in Australia at the sponsor’s home surrounded by family and friends. He listed an intended marriage date 6 October 2018 in his Form 40SP.

    The Department application

13. The primary applicant, Sokheng Liv, made a valid application for a Prospective Marriage (Class TO) (Subclass 300) visa which was lodged on 14 September 2017, on the basis that the primary applicant intended to marry an Australian citizen, Soktin Sok. The secondary applicants, Lyhuo Ngoem and Lyhor Ngoem, also made valid applications on the basis that they are the dependent children and members of the family unit of the primary applicant. Mr Soktin Sok (‘the sponsor’) lodged sponsorship in support of the application.

14. The applicants and sponsor provided the following documents in support of their application:

    ·Translated Statement of consent for the secondary applicants to live in Australia by their biological father, dated 13 March 2018 and ID card

    ·Photographs of the primary applicant, secondary applicants and the sponsor together in Cambodia

    ·Screenshots of chat logs and video calls between the primary applicant and the sponsor

    ·Evidence of money transfer from the sponsor to the primary applicant in 2018

    ·Passenger Itinerary in the sponsor’s name for flights to Cambodia from 29 January 2017 and returning 29 July 2017

    ·K.O Travel invoice in the sponsor’s name dated 21 January 2017

    ·Statement of the sponsor regarding previous de facto relationship, dated 19 December 2016

    ·Statement of the sponsor regarding previous Prospective Marriage visa application in 2016, for which he had withdrawn sponsorship, dated 13 September 2017

    ·Relationship statement by the sponsor, dated 13 August 2017

    ·Copy of the sponsor’s Australian passport biodata page

    ·Notice of Intended Marriage for 6 October 2018, dated 12 September 2017

    ·Marriage Celebrant statement of proposed marriage scheduled for 6 October 2018

    ·Sponsor’s Certificate of Australian Citizenship granted 21 September 1988

    ·Copy of the primary applicant’s Cambodian visa biodata page

    ·Translated Cambodian Birth Certificates for the secondary applicants

    ·Form 1229 Consent to grant an Australian visa to a child under the age of 18 years, regarding the secondary applicants, signed by their biological father on 21 September 2018

15. On 8 March 2018, the Department wrote to the applicants via email requesting evidence that there was no impediment to marriage between the applicant and sponsor, among other requirements. The primary applicant was requested to provide official documents confirming the current single status for the primary applicant and sponsor and was provided with 28 days to respond. The Department did not receive a response to their request.

    The Department decision

16. On 18 January 2019, the delegate of the Department made a decision to refuse to grant the applicants a Prospective Marriage (Class TO) (subclass 300) visa on the basis that the primary applicant did not satisfy criteria cl. 300.221A of Schedule 2 of the Regulations, and the secondary applicant did not satisfy cl. 300.321 of the Regulations.

17. The delegate was not satisfied that there was no impediment to marriage in Australia law, as no evidence had been provided by the applicant or sponsor to demonstrate that they were free to marry, including no official documents confirming their status as single.

18. As the primary applicant did not meet the time of decision criteria, being cl. 300.221A, the delegate subsequently found that the secondary applicants were not able to meet the secondary criteria, being cl. 300.321, by virtue of being a dependent or a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Prospective Marriage (Class TO) (subclass 300) visa.

    The Tribunal application

19. An application for review of the Department’s decision was lodged with the Tribunal on 21 January 2019.

20. On 25 January 2019, the Tribunal conducted outreach via an email to the applicant’s migration agent, indicating that if the applicant and sponsor married while the case was before the Tribunal, it was important that they provide a copy of the marriage certificate and inform the Tribunal as soon as possible, as the under regulation 2.08E of the Regulations, the Tribunal must remit the application to the Department for consideration if the parties validly marry after the delegate’s decision was made but before the Tribunal’s review application was finalised. No marriage certificate has been received by the Tribunal.

21. The applicant and sponsor provided the following documents in support of their review application:

    ·Evidence of money transfers from the sponsor to the primary applicant in 2019, 2020 and 2021

    ·Statutory Declaration by Chenda Tran (friend of the sponsor) dated 4 October 2019

    ·Statutory Declaration by Noth Chin (friend of the sponsor) dated 4 October 2019

    ·Translated ‘Clarification for Widow’ document from the Chief of Commune in Sampong Chey commune, Cambodia, confirming that the primary applicant is a widow, dated 18 January 2019

22. On 10 February 2023, the applicants and sponsor were invited to appear before the Tribunal at a hearing to give evidence and present arguments relating to the issues arising in their case. The hearing was scheduled to occur on 2 March 2023.

23. On 13 February 2023, the Tribunal received a request from the applicants’ representative that the hearing be postponed until after 6 March 2023.

24. On 14 February 2023, the Tribunal agreed to the applicants’ postponement request, and sent a rescheduled hearing invitation with a new hearing date of 9 March 2023.

    s.359(2) – invitation to provide information letter

25. On 13 February 2023, the Tribunal wrote to the applicants under s.359(2) of the Act, inviting them to provide information to support their claims that the primary applicant and the sponsor genuinely intend to marry and live together as spouses, information that showed that the primary applicant and the sponsor had met and were known to each other, and evidence of their intention to marry.

26. The letter stated that a response should be provided in writing by 27 February 2023, and that if the Tribunal did not receive a response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. It also stated that if a response was not received in time, the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

27. The Tribunal did not receive a response to its invitation to provide information by 27 February 2023, and no request for an extension of time to provide that information was received. As a result of no response being received in time, the applicants were no longer entitled to appear before the Tribunal for the purposes of a hearing under s.360 of the Act. As this is a legislative requirement, the Tribunal had no discretion in this matter, and the hearing scheduled for 9 March 2023 was cancelled.

28. On 6 March 2023, the Tribunal wrote to the applicants’ representative to advise that as the Tribunal had not received a response to its invitation to provide information under s.359(2) of the Act, the applicants were no longer entitled to appear before the Tribunal for a hearing under s.360 of the Act, and that the hearing scheduled for 9 March 2023 was cancelled. The letter also stated that the Tribunal may make a decision on the review without taking further action to obtain the information under s.359C of the Act but would consider any submissions received up until the time that the Tribunal had made its decision.

29. No response was received by the Tribunal by 27 February 2023, and no request for extension was received. As a result of no response being received within the period allowed, the applicant lost any entitlement they might otherwise have had under the Act to appear before the Tribunal to appear before it to give evidence and present arguments.

30. The hearing scheduled for 9 March 2023 was cancelled as the applicant no longer was entitled to appear before the Tribunal for a hearing under s.360 of the Act. The Tribunal wrote to the applicant via their representative on 6 March 2023 to advise that the hearing had been cancelled as the applicant was not entitled to appear before the Tribunal for a hearing, and that the Tribunal would proceed under s.359C of the Act to make a decision on the review without taking any further action to obtain the information. The letter also stated that the Tribunal had no discretion in applying these provisions in the Act and could not reinstate the applicant’s right to a hearing. However, the letter stated that the Tribunal would consider any information or submissions that were provided up until the time it makes its decision. 

    Response to s.359(2) letter – received out of time

31. On 7 March 2023, the representative wrote to the Tribunal advising that they had been overseas and that they would be submitting documents in support of the case on the same date.

32. On the same date, the representative sent several emails to the Tribunal with attachments in response to the Tribunal’s request to provide information. The following documents were provided in support of the visa application:

    ·Relationship Statement made by the sponsor dated 21 February 2023

    ·Supporting statutory declaration by Chenda Tran dated 4 October 2019

    ·Supporting statutory declaration by Noth Chin dated 4 October 2019

    ·Clarification for a widow document from Sampong Chey Chief of Commune dated 18 January 2019

    ·Photographs of the applicants and sponsor together in various settings

    ·GP letter from Dr Manal Saka (Plenty Valley Medical Centre) regarding the sponsor’s medical conditions dated 7 February 2019

    ·Notice of Intention to Marry by Trung Viet Doan dated 20 February 2023

    ·Witness statement by Sum Chhun dated 27 February 2023

33. On 15 March 2023, the applicant’s representative sent an email to the Tribunal attaching a witness statement by Yarhoang Nou in support of the application, who witnessed the marriage between the couple and ‘had ‘witnessed the love between Sotkin Sok and Sokheng Live as a couple’.

    Is there any impediment to the marriage?

34. Clause 300.221A requires that at the time of decision there is no impediment to the marriage in Australian law. If the applicant or prospective spouse is under 18, the Minister must be satisfied that they will turn 18 before the end of the period within which the intended marriage is to take place or have an Australian court order issued under s 12 of the Marriage Act authorising the parties to marry. In the latter case, the Minister must be satisfied the marriage will take place: cl 300.221B. In the present case, both the visa applicant and the review applicant are over 18 years of age.

35. The Tribunal notes that the delegate was not satisfied that the applicant and the sponsor were free to marry and therefore could not be satisfied that there was no impediment to marriage in Australian law.

36. There is no judicial authority on the meaning of ‘legal impediment to the marriage’. Consistent with the ordinary meaning, the approved form for a ‘Declaration of no legal impediment to marriage’ indicates that a legal impediment encompasses those circumstances of the type set out in s 23B of the Marriage Act 1961 (Cth) (Marriage Act) which would render a marriage void28 (i.e. a marriage between the parties never existed), such as where:

    ·     · One of the parties is already married to someone else – i.e., whether the parties are free to marry and any former marriages have been properly dissolved.

    ·     · The parties are in a prohibited relationship – such as a person and their parent, child, brother, or sister.

    ·     · The consent to marriage is not real consent – because of duress or fraud, mistaken identity, or a party is mentally incapable of understanding the nature and effect of the marriage ceremony.

    ·     · One of the parties is not of marriageable age – The Marriage Act requires the parties to be of marriageable age

37. The visa applicant has supplied the Tribunal with a translated ‘Clarification for Widow’ document from the Chief of Commune in Sampong Chey commune, Cambodia, confirming that the primary applicant is a widow, dated 18 January 2019. The Tribunal is satisfied that the applicant’s husband has passed away and she is a widow.

38. The review applicant Mr Sok provided a statement in his visa application that he was in a de facto relationship with Sinah Soun in 1967 and had four children from this relationship. He states that the relationship ended in 2002 due to constant arguments. Mr Sok declared on Form 40SP (Department file ff:135) that he has never been married but was in a de facto relationship and provided details of this.  

39. The review applicant has provided statutory declarations by two friends recognising the relationship and pictures have been provided of the review applicant and visa applicant celebrating their relationship with family and friends at their engagement ceremony. Further the review applicant has provided the Tribunal with evidence of their constant communication and pictures of them socialising together as would be expected of a couple who intend to marry and have no impediment to marry.

40. In all the circumstances, the Tribunal is satisfied that the visa applicant is free to marry the review applicant at the time of this decision. There is otherwise nothing in the evidence to suggest that there is any impediment to the marriage in Australian law. The Tribunal is satisfied that there is no impediment to the marriage in Australian law. Accordingly, cl.300.221A is satisfied.

41. 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.

42. As there is no impediment to the proposed marriage under Australian law, cl 300.221A is satisfied.

    Secondary visa applicants

43. As the primary applicant did meet the primary criteria for the grant of the visa, the secondary applicants do meet the secondary criteria required under cl. 300.321, by virtue of being the dependents or members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Prospective Marriage (Class TO) (subclass 300) visa.

44. 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

45. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl 300.221A of Schedule 2 to the Regulations

1. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the secondary visa applicants meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

   ·cl. 300.321 of Schedule 2 to the Regulations

   Rachel Westaway
   Senior Member