Tran (Migration) - [2018] AATA 1908

Tran (Migration) [2018] AATA 1908 (4 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Quoc Tien Tran
VISA APPLICANT:  Miss Thi Ngoc Hanh To
CASE NUMBER:  1700663
DIBP REFERENCE(S):  2016038307
MEMBER:Susan Trotter
DATE:4 May 2018
PLACE OF DECISION:  Brisbane
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.300.211 of Schedule 2 to the Regulations
·cl.300.214 of Schedule 2 to the Regulations
·cl.300.215 of Schedule 2 to the Regulations
·cl.300.216 of Schedule 2 to the Regulations
·cl.300.221 of Schedule 2 to the Regulations

Statement made on 04 May 2018 at 5:27pm
CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Genuine and continuing relationship – Contact via social media – Money transfer and gifts – Witness statements – Notice of Intention to Marry – Decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65, 360
Migration Regulations 1994, r 1.15A, Schedule cls 300.211, 300.214, 300.215, 30..216, 30..221
CASES
Bretag v Immigration Review Tribunal [1991] FCA 755
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicant applied for the visa on 6 May 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 delegate refused to grant the visa on 12 December 2016 on the basis that there was not sufficient evidence to demonstrate that the review applicant and the visa applicant have ever been, nor intend to be in a genuine and continuing relationship, such that the delegate was not satisfied that they genuinely intended to live together as spouses as required.
The review applicant applied to the Tribunal on 12 January 2017 seeking review of the delegate’s decision.
In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES
The Prospective Marriage (Temporary) (Class TO) visa is a visa 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. At the time the visa application was lodged, Class TO…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Tran (Migration) [2018] AATA 1908
Case: [2018] AATA 1908
Decision Date: 4 May 2018

CaseChat Overview and Summary

This matter concerned a review of a decision regarding a Prospective Marriage (Temporary) (Class TO) visa, Subclass 300. The review applicant sought to have the decision reconsidered by the Tribunal.

The primary legal issue before the Tribunal was whether the visa applicant met the relevant primary criteria for a Subclass 300 visa at the time of the application. Specifically, the Tribunal was required to determine if the parties intended to marry an eligible person, if they had met and known each other personally since turning 18, if they genuinely intended to marry and have the marriage take place within the visa period, and if they genuinely intended to live together as spouses.

The Tribunal considered a range of evidence, including photographs, receipts for money transfers, communication records from social media and messaging applications, joint travel documentation, evidence of the review applicant's temporary residence at the visa applicant's parents' home, superannuation and life insurance documents nominating the visa applicant as a beneficiary, and various witness statements. The Tribunal found that the parties met the criteria under cl.300.211, cl.300.214, and cl.300.215 of Schedule 2 to the Regulations, being satisfied that the visa applicant intended to marry an eligible person, that they had met and known each other personally since turning 18, and that they genuinely intended to marry and have the marriage take place within the visa period.

Given these findings, the Tribunal remitted the application for the visa to the relevant authority for reconsideration, with a direction that the visa applicant met the criteria under cl.300.211, cl.300.214, cl.300.215, cl.300.216, and cl.300.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Additionally, the parties need to continue to meet these primary criteria at the time of decision: cl.300.221.CONSIDERATION OF CLAIMS AND EVIDENCE The review applicant provided documentation to Tribunal in relation to the parties’ relationship, including photographs, receipts for money transfers, copies of Viber, Facetime and Facebook messages and extracts, joint travel documentation, documentation showing the temporary registration (on two occasions) of the review applicant to stay at the visa applicant’s parents’ residence in Vietnam, the review applicant’s superannuation and life insurance statement showing the visa applicant nominated as his partner and beneficiary, witness statements including the parties, the visa applicant’s mother, the review applicant’s mother, the review applicant’s friend, the visa applicant’s aunt, the visa applicant’s friend and the visa applicant’s neighbour and an updated Intention to Marry.Issue 1 – Were the relevant primary criteria satisfied at the time of the visa application?Did the visa applicant intend to marry an eligible person? The Tribunal has sighted identity documents and is satisfied that at the time of application, the review applicant was an Australian permanent resident. Based on written and oral evidence before the Tribunal, the Tribunal is also satisfied at the time of the visa application, the visa applicant intended to marry the review applicant. It follows that the requirements of cl.300.211 were met at the time of application.Had the parties met and were they known to each other personally since each turned 18? The Tribunal is satisfied, based on identity documents, travel documents, movement records from the Department, witness statements and photographs before it, that at the time of the visa application, the review applicant and the visa applicant had met and were known to each other personally since each turned 18. It follows that the requirements of cl.300.214 were met at the time of the visa application.Did the parties genuinely intend to marry and intend that the marriage would take place within the visa period? The Tribunal notes that neither the review applicant (who is currently aged 23) nor the visa applicant (who is currently aged 21) have previously married. The Tribunal has sighted an updated Notice of Intention to Marry on 7 October 2018 (to replace the previous Notice of Intention to marry on 14 February 2017 given that date has now passed). The Tribunal accepts based on all of the evidence before it that at the time of the visa application, the review applicant and the visa applicant had a genuine intention to marry at the time of application and satisfied the requirements of cl.300.215(a). Further, the Tribunal accepts that the marriage was intended to take place within the visa period as required by cl.300.215(b). It follows that the requirements of cl.300.215 were met at the time of the visa application.Did the parties genuinely intend to live together as spouses?

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to consider the remaining criteria for a Subclass 300 visa.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.300.211 of Schedule 2 to the Regulations· cl.300.214 of Schedule 2 to the Regulations· cl.300.215 of Schedule 2 to the Regulations· cl.300.216 of Schedule 2 to the Regulations· cl.300.221 of Schedule 2 to the RegulationsSusan TrotterMember

Ratio Decidendi

Legal Principle Established

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