Ta (Migration)

[2018] AATA 5344

Ta (Migration) [2018] AATA 5344 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Doanh Ta

VISA APPLICANTS:  Miss Thi Oanh Tran
Miss Thi Quynh Nhu Nguyen
Miss Thi Quynh Ha Nguyen
Mr Huu Tiep Nguyen
Mr Huu Phan Nguyen

CASE NUMBER:  1616707

DIBP REFERENCE(S):  OSF2015/071391

MEMBER:Rosa Gagliardi

DATE:31 October 2018

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 31 October 2018 at 2:37pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – financial support – living arrangements – temporary household registrations – attendance at engagement ceremony – inception and development of relationship – knowledge of each other’s lives – communication between the parties – paucity of evidence before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.216, 300.221

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 Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 7 August 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.

3. The delegate refused to grant the visas on 26 August 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.

4. The Tribunal invited the parties to a hearing to have been held on 14 November 2018 at 12.30pm (Vic time).  The invitation made clear that if the parties did not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable the parties to appear before the Tribunal.  The parties were also advised that the hearing could be re-scheduled if they had a good reason for doing so.

5. On 25 October 2018, the parties’ migration agent wrote to the Tribunal stating that the review applicant instructed that he did not wish to attend the hearing as scheduled, and indicated on the Hearing Response that the applicant would not be attending the hearing by phone either.  The review applicant therefore requested that the Tribunal make a decision “on the papers”. 

6. The parties have submitted a copy of the Departmental decision for the purposes of the review and the Tribunal has had regard to all the evidence before it in making its decision.

7. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 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.

   Background

10. It would appear from the decision record submitted to the Tribunal for the purposes of the review that the applicant is a 44 year old female from Nghe An province in Vietnam.  She has declared that her first husband passed away in 2004 and that there are four children from this marriage.  The children are included in the application.  The sponsor is a 68 year old Australian citizen.  He submitted that he divorced his former wife in 2000.  He has five children from this marriage.

11. In terms of the claimed inception of the relationship, the parties have stated that the applicant’s sister and sister’s husband met the sponsor in a supermarket where he worked as a security guard and have become friends since 2010.  The parties, it is claimed, came to be introduced to each by the applicant’s sister at the end of 2012.  The sponsor then first contacted the applicant via phone in May 2013. 

12. On 7 September 2013, the sponsor travelled to Vietnam and it is claimed that the sponsor visited the applicant in Nghe An on 12 September 2013.  It is further claimed that the parties became lovers before the sponsor returned to Australia on 14 October 2013.  The parties have asserted that they decided to marry on 2 May 2014.  The sponsor travelled to Vietnam on 17 June 2014 and the parties held an engagement on 20 June 2014.  The parties asserted that they travelled together with the applicant’s children to Hai Phong, until 2 July 2014.  The sponsor returned to Australia on 23 July 2014 and this application was lodged on 7 August 2015 at the Australian Consulate General in Ho Chi Minh City. 

13. 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

14. Given the parties have been separated geographically the Tribunal would not expect them to have joint ownership of assets, joint liabilities or any legal obligations towards each other.  Nor could it be expected that the parties could pool their resources in a meaningful way as they live in different countries. 

15. The Tribunal notes that at the time of application, the parties submitted evidence that money transfers were sent from the sponsor to the applicant between January 2014 and August 2014 totalling AUD$6,000.  In addition, bank statements were submitted reflecting that the sponsor had transferred funds to the applicant between October 2013 and April 2015, totalling AUD$14,750.  The Department wrote in its decision, “Whilst this indicates that the sponsor has provided financial support to the applicant, I do not find that thirty seven money transfers over a period of eighteenth months is evidence that the applicant and the sponsor have pooled financial resources”.  The Tribunal does not agree with this statement as at the time of application, the parties’ had provided evidence that they were sharing their resources and had invested in the relationship.

16. The difficulty for the Tribunal is that since those payments in April 2015, over three years ago now, it has little before it that would indicate that the parties are sharing resources, investing in the relationship or sharing their daily household expenses.  At a hearing the Tribunal would have liked to explore with the parties, why since April 2015 the parties have provided little evidence of having continued to provide financial support within the scope of their capacity.

    The nature of the household

17. At the time of application, in support of the parties’ claims that they had combined their domestic living arrangements to the extent that they could (given they live in separate countries), the Tribunal notes that the parties submitted evidence that the sponsor obtained temporary household registrations at the address of the applicant in Nghe An.  One document was issued on 12 September 2013, and another on 18 June 2014 even if the documents do not indicate the period of time for which the applicant registered at the claimed address.  Nonetheless, at a hearing the Tribunal would have liked to query the parties in depth about the degree to which their living arrangements up to 18 June 2014 had been recognised as being akin to those of two persons with a genuine intention to marry and live together as spouses. 

18. At the time of application the parties also provided evidence that indicates that the applicant and sponsor stayed at a hotel in Da Nang from 14 September 2013 to 16 September 2013.  They submitted a hotel receipt in joint names indicating they shared a joint room in a hotel in Hue on 17 September 2013.  The Tribunal accepts that the evidence submitted up until June 2014 would demonstrate that the parties may have shared living spaces and a daily routine and had some, albeit limited, joint responsibility for household duties. 

19. In terms of the parties’ living arrangements consistent with two persons who have a genuine intention to live together as spouses since 18 June 2014, however, the Tribunal has little information before it.  Importantly, at a hearing the Tribunal would have also liked to inquire of the parties the extent to which they have combined their living arrangements in the previous four or so years, after the evidence was last submitted to the Department, regarding their shared living spaces and daily routines, including any joint responsibility for household duties.  The lack of continuity of evidence in this regard leads the Tribunal to have serious questions about whether the parties have ever held a genuine intention to live together as spouses and importantly, currently have a genuine intention to live together as spouses. 

20. It is not for the Tribunal to make the parties’ case for them.  They have been provided with every opportunity and invitation to submit additional material to support their case at the time of review. 

    The social aspects of the relationship

21. In its decision, the Department noted that the engagement was not held according to tradition and that the applicant did not have any ceremony at her home and it was not attended by her relatives and neighbours.  The Department also had concerns that while the sponsor has six siblings residing in Hai Phong, only two of the sponsor’s siblings attended the engagement.  Even so, as this was an engagement in relation to a second marriage, the Tribunal does not place significant adverse weight on the parties wanting to hold a more low key engagement.

22. Nonetheless, the Tribunal does consider it significant that the siblings who live in Hai Phong and did not attend the engagement ceremony had not, at the time of application, ever met the applicant.  This does raise concerns about the extent to which the sponsor was being open about his relationship to the applicant, and whether the limited recognition by his family was because the parties did not genuinely intend to live together as spouses as defined.

23. On the basis of the evidence before it, it is not clear to the Tribunal that these siblings of the sponsor, at some point after the engagement, met the sponsor and recognise him as someone who genuinely intends to live with the applicant in a spousal relationship.  These are matters the Tribunal would have asked the parties about at a hearing.

24. The Tribunal has also had regard to the witness statements submitted at the time of application by two of the applicant’s siblings, sister-in-law and the sponsor’s friend providing their opinions as to the nature of the relationship.  The Department dismissed these because, “When assessing the genuineness of a relationship, it is taken that the nature of the relationship according to the applicant and sponsor firsthand has greater bearing than awareness of the claimed relationship by third parties or third party opinions”.  The Tribunal finds this an odd statement given that an inquiry of how the applicant and the sponsor represent their relationship to others, and the level of recognition of the relationship by family and friends, is required.  At the least, the Tribunal considers that the witness statements show that two of the applicant’s siblings, her sister-in-law and the sponsor’s friend were aware that an engagement had taken place, and were prepared to support the relationship. 

25. The Tribunal also places some favourable weight on the temporary household registrations which showed that the parties were prepared to declare themselves to the authorities that the sponsor was staying at the applicant’s residence.

26. Nonetheless, the Tribunal would have expected that given the relationship is claimed to have been in existence since at least June 2014, that the circle of persons who would be aware of the relationship would have widened leading up to the time of review.  The parties have now had ample opportunity to undertake joint social activities and to attend significant life events of their close family and friends in Vietnam, if not elsewhere, for example.  The limited continuation of evidence as regards the parties’ social recognition since the time of application leaves the Tribunal to have serious concerns about the degree to which the relationship has ever been perceived by the parties’ social circles, as one in which the parties genuinely intend to live together as spouses.

    The Nature of the persons’ commitment to each other

27. The Tribunal has had regard to the information submitted in support of the parties’ claims that they are committed to one another to the exclusion of others; the development of the relationship; the length of time they have lived together; and the degree to which they see their relationship as a long-term one. 

28. The Tribunal has doubts about the realistic nature of the inception and development of the relationship.  They first met on 12 September 2013 and spent time together for two weeks, it is claimed.  The sponsor then returned to Australia on 14 October 2013. The engagement was held on 20 June 2014, three days after the sponsor returned to Vietnam.  There is limited evidence however, for the Tribunal to gauge how the relationship developed to a point they decided to become engaged and to form a genuine intention to live together as spouses.  These are all matters the Tribunal would have raised at a hearing. 

29. The parties were engaged over four years ago now and the Tribunal would have expected that the parties would have been able to provide extensive evidence of how they provide companionship to one another and how they support each other.  The Tribunal would have also expected that the parties could demonstrate how their families had blended together and whether they were seen as a family unit.  At a hearing the Tribunal would have asked the sponsor to discuss how he saw his future role as a step-father to the children of the applicant, and about any arrangements he may have made to his home, for example, to accommodate the applicant and her four children on arrival in Australia.

30. The Tribunal also notes that at the interview with the Department the applicant demonstrated little knowledge of the sponsor’s family, children, previous relationship, job, life and friends.  At a hearing the Tribunal would have been interested to know whether the parties had now shared common experiences with family and friends and how their knowledge of one another had deepened.  As the Tribunal has little information before it that would demonstrate the level of communication the parties have between them, the Tribunal has questions about whether the parties have a shared vision of their future lives together and whether they genuinely intend to marry and live together as spouses.  There is little before the Tribunal that would indicate that the parties saw and see their relationship as long-term.

31. At a hearing the Tribunal would also have liked to hear from the parties as to whether they had considered cementing their relationship by marrying in Vietnam sometime in the preceding years as a sign of their commitment to one another.  Given the paucity of evidence that the parties have, in the space of four plus years, provided one another consistently with support and companionship, and on the basis that the Tribunal has requested, but has not received more recent evidence of how the relationship has developed, the Tribunal questions whether the parties ever had a genuine intention to live together as spouses within the meaning of s.5F.  

32. Cumulatively, the Tribunal finds that there is little to indicate that the parties have a commitment to one another that is exclusive of others and that they are not living separately and apart on a permanent basis. 

33. 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 same reasons the Tribunal finds that the applicant does not meet cl.300.221.

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

    DECISION

35. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    Rosa Gagliardi
    Member