Tran (Migration)

[2022] AATA 3484

Tran (Migration) [2022] AATA 3484 (5 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Jenny Tran

VISA APPLICANT:  Mr Kim Phong Thai

REPRESENTATIVE:  Mr Arthur Vasilopoulos (MARN: 0002668)

CASE NUMBER:  2112776

HOME AFFAIRS REFERENCE(S):          OSF2015/5071612

MEMBER:Margie Bourke

DATE:5 September 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 05 September 2022 at 4:01pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Federal Circuit and Family Court remittal – genuine intention to marry – genuine and ongoing relationship – engagement ceremony in Vietnam – employment offer – overseas travel apart – no current arrangements for marriage ceremony – no proposed English classes – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 300.211, 300.214, 300.215, 300.216, 300.221; rr 1.15

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 and Border Protection to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 18 June 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Relevantly to this matter the primary criteria include cl.300.215 and cl.300.216 and cl.300.221.

3. The delegate refused to grant the visa on 24 June 2016 on the basis that the visa applicant did not satisfy cl 300.215 and cl.300.216, and cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied the parties had a genuine intention to marry or that the marriage would take place within the visa period, and the delegate was not satisfied that the parties have a genuine intention to live together in a long-term relationship.

4. The review applicant applied to the tribunal for a review of the Department’s decision, and the tribunal (differently constituted) in a decision dated 20 September 2018, affirmed the decision of the Department.

5. The review applicant appealed the decision of the tribunal (differently constituted). The judgement of the Federal Circuit and Family Court of Australia dated 9 September 2021, quashed the decision of the previous tribunal, and found the previous tribunal had made findings not open to it on the evidence, and accordingly the decision of the previous tribunal contained jurisdictional error. The matter was remitted for rehearing by a differently constituted tribunal.

6. The tribunal had regard to its objectives to provide a mechanism for review it is fair, just, economical, informal and quick. The tribunal had regard to the circumstances of the applicant and the nature of the review. The tribunal noted that the visa applicant would provide evidence from overseas, which would be given either by video or telephone in the hearing. The tribunal noted that the hearing did not involve an extensive amount of paperwork to be put to the review applicant or the visa applicant during the course of the hearing. The tribunal noted the length of time since the original application was lodged with the Department, and that the availability of in-person hearings was restricted due to the ongoing pandemic. The tribunal considered that any further unnecessary delay should be avoided. The tribunal was of the view that the conduct of the hearing by video would allow the review applicant and visa applicant the opportunity to give evidence and present arguments, and would allow the tribunal the opportunity to conduct a fair and effective hearing and enable the tribunal to properly assess the evidence before it. For all these reasons the tribunal decided that this was an appropriate matter in which the hearing could be conducted by video.

7. The review applicant was invited to attend a hearing on 28 July 2022. In the hearing invitation the applicant was advised of the special measures practice requirements, including article 6.11, which required that all written submissions, documents and information be provided to the tribunal at least seven days prior to the scheduled hearing, unless an extension of time was requested and granted. The tribunal received submissions from the review applicant close to the hearing date, in breach of art.6.11. The tribunal postponed the hearing, so it could properly consider and prepare the further submissions provided by the applicant, and advised the review applicant the reason for the postponement.

8. The review applicant was invited to attend a rescheduled hearing on 31 August 2022.

9. The review applicant appeared before the tribunal on 31 August 2022 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant who attended by video, and two witnesses, Thi Tu Trinh Thai the sister of the visa applicant, and Jessica Tran a friend of the review applicant who both attended by video. The tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

10. The review applicant stated she had an observer in the hearing to double check the interpreter did not make an error. The tribunal indicated that the interpreter was a qualified interpreter, and engaged by the tribunal to provide a professional service. The tribunal indicated that it was troubled the review applicant was concerned about the interpreter, and invited the review applicant to either accept the quality of the interpreter engaged by the tribunal for the hearing, or to postpone the hearing to resolve the issue. The review applicant and a representative indicated that they were content to proceed with the hearing and accept the interpreter was appropriately qualified and could be trusted to interpret for the participants in the hearing.

11. The review applicant was represented in relation to the review. The representative attended the tribunal hearing by video with the review applicant.

12. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the visa applicant meets the criteria that the delegate found were not met in the Department’s decision record dated 24 June 2016. These criteria include whether at the time of application the visa applicant and review applicant genuinely intend to marry, and intend to do so during the period of the visa to meet the requirements of cl.300.215, and whether at the time of application the visa applicant and review applicant genuinely intend to live together as spouses to meet the requirements of cl.300.216. Further criteria include whether these requirements are met at the time of decision for the purpose of cl.300.221.

14. Clause 300.221 requires that, at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, cl.300.214, cl.300.215 and cl.300.216. The tribunal will consider these four criteria in this decision record. These criteria require that, at the time the visa application was made, the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; the parties have met and are known to each other personally; the parties genuinely intend to marry and intend to do so during the visa period; and the parties genuinely intend to live together as spouses. Accordingly, in order to determine whether the visa applicant continues to meet those requirements, it is first necessary to consider whether they were met at the time of the visa application.

    Evidence before the Tribunal

15. There was inconsistent oral evidence at the hearing that the visa applicant stated he first met the review applicant in person when she visited Vietnam in December 2014, with her mother, and then he stated he made a mistake and that she travelled to Vietnam in December 2014 by herself. The review applicant stated she travelled to Vietnam with her father in December 2014.  At the conclusion of the witnesses’ evidence the review applicant confirmed that her father had travelled to Vietnam with her in December 2014, but she had not spent much time with him, and that the visa applicant and herself had then travelled alone together. The review applicant suggested that given the passage of time perhaps the visa applicant had forgotten that her father had accompanied her to Vietnam. I accept based on the photographs presented by the review applicant to the tribunal that she travelled to Vietnam with her father in December 2014.

16. I am satisfied based on the detailed evidence provided by both the review applicant and the visa applicant that an engagement party was conducted at the home of the visa applicant and his family in May 2015. I am satisfied that there was an exchange of rings in front of family members in the morning, and a large party to celebrate the engagement was held in the visa applicant’s family home that evening. I am satisfied that the ceremony was not a form of civil marriage or wedding, but was an engagement ceremony followed by an engagement party.

17. I am satisfied that the review applicant and the visa applicant gave consistent evidence in relation to the family members and persons who attended the exchange of rings ceremony, although the visa applicant had changed his evidence in relation to the visitors who came from Australia. The visa applicant appeared to be being prompted to change his evidence when he gave inconsistent evidence. The tribunal asked the observer to leave the hearing, (a relation of the review applicant) and I explained the tribunal wished the visa applicant to have every opportunity to have his evidence assessed fairly. The issue ceased after the observer left, and it is appropriate to note that the visa applicant did not provide any further evidence that was subsequently altered.

18. I am satisfied that the engagement between the visa applicant and the review applicant is known to family members and is supported by the visa applicant’s sister who resides in Australia. I accept the evidence before the tribunal that a cousin, or his parents (the aunt or uncle) of the visa applicant are able to offer the visa applicant employment if he is granted a visa to come to Australia. I accept the visa applicant has family members in Australia. I accept the visa applicant’s family members can give him employment.

19. I accept the evidence of the review applicant’s friend, Jessica Tran, that she travelled to Vietnam in 2019 with the review applicant, and another friend, and they met the visa applicant and travelled with him. I accept and give weight to her evidence that the visa applicant and review applicant seemed happy in each other’s company, and she considers that the relationship is genuine.

20. I am satisfied that the review applicant has travelled overseas on six occasions since her engagement in May 2015 in Vietnam. I accept the evidence of the review applicant that at the end of 2015 she travelled to Japan with friends. I accept that in early 2017 she went to Vietnam with her mother and visited the visa applicant on that occasion. I accept evidence that at the end of 2017 she travelled to Korea with girlfriends and had a stopover of two days at the end of that trip in Saigon and saw the visa applicant for those two days. I accept her evidence that in 2018 she travelled to Bali with friends. I accept evidence that in 2019 she travelled to Vietnam with two girlfriends, (one of whom gave evidence at the hearing) and they spent time with the visa applicant. I accept her evidence that she travelled to Hawaii with her father for a family wedding in 2022. I accept the evidence of the visa applicant that he did not join the review applicant on her trip to Japan, her trip to Korea, her trip to Bali or her trip to Hawaii.

21. I am satisfied that the review applicant chose to travel with her friends rather than visit the visa applicant in Vietnam. The review applicant stated that she is young and wants to spend time with her friends. The visa applicant stated that he felt uncomfortable being the only male, when she was travelling with her girlfriends, and it was difficult for him to get visas to travel to the places the review applicant was travelling with her girlfriends all. The review applicant stated the trip to Hawaii was to celebrate a family wedding. The review applicant stated the visa applicant was not included because it was a small wedding. The visa applicant stated the trip to Hawaii was a family affair.

22. The tribunal discussed with both the review applicant and the visa applicant that it was difficult to interpret their evidence as indicating a genuine intention of a commitment to a relationship when the review applicant chose to travel overseas over a seven year period and 4 out of 6 times did not go to Vietnam to see the visa applicant, to whom she was engaged. Further the tribunal discussed with the parties that the review applicant chose to travel with friends, and to go to destinations where it was difficult for the visa applicant to obtain a visa, and the review applicant chose not include the visa applicant who was her fiancé in a trip that was to attend a family wedding. The tribunal discussed with the parties that the visa applicant chose not to join the review applicant because she was travelling with girlfriends, stating he would be uncomfortable travelling with his fiancée and her friends, and he did not apply for a visa to join her on these travels.

23. The tribunal discussed with the review applicant and visa applicant that it was difficult to interpret the evidence before it as indicating that they genuinely intended to marry and genuinely intended to live together as spouses when over a number of years they made choices that indicated they did not wish to spend time together and did not seem to give their relationship priority. The review applicant stated that the visa applicant was fine with her travelling with her friends, and she did not want to miss out on these travels. The review applicant stated they remained in communication although they did not meet in person. The review applicant stated she had her whole life in front of her. The review applicant also stated that it has been a very long time since their engagement and that she wants the visa applicant to be in Australia with her. The visa applicant stated he thought the visa would be granted within the month, and not have to wait years for the visa.

24. The tribunal discussed with the review applicant and the visa applicant that it was difficult to reconcile their evidence the time apart had seem so long and they wished to be together. The tribunal noted that they chose not meet up and for the review applicant to travel separately except for 10 days in 2017 when the review applicant travelled with her mother to Vietnam, 10 days in 2019 when the review applicant travelled with her two friends to Vietnam, and two days at the end of the Korean trip at the end of 2017 when the review applicant had a stayover in Saigon. The tribunal notes that the review applicant has had six overseas trips since the engagement ceremony in May 2015, and yet has spent a total 22 days in Vietnam since that time. The tribunal is cognisant that travel was restricted due to the pandemic in 2020 and 2021. The tribunal notes that the review applicant chose to travel to Hawaii to a family wedding in 2022, and the visa applicant was not invited or included as part of the family party, and the review applicant did not travel to Vietnam although she had not seen the visa applicant for three years.

25. The visa applicant told the tribunal that he had told the visa applicant not to come to Vietnam because she had had covid and her body was not good. He stated she continually caught cold and there are new cases every day in Vietnam. In answer to a question from the tribunal the visa applicant stated he knew there were cases in Melbourne every day but the rates were different and plus there was dangers of catching the virus on the plane and he did not want her to risk plane travel. The review applicant stated to the tribunal after the visa applicant’s evidence that in fact she has not had covid, but she has been sick with the flu.

26. The tribunal is concerned about the evidence before it. The evidence of the visa applicant that the review applicant had contracted the covid virus, which she denied indicates that the parties are not in close contact as they suggest. There is no medical evidence before the tribunal, but I accept the evidence of the review applicant that she has not contracted the virus.

27. The evidence of the visa applicant that he advised the review applicant not to travel to Vietnam because the review applicant should not risk plane travel, is not plausible, given the review applicant had travelled to Hawaii in 2022 by plane.

28. The tribunal accepts that in the current global status there is concern of contracting the pandemic upon travel. However in circumstances where the review applicant has continued her international travel in 2022, the tribunal does not accept that the risk of contracting the virus through international travel, is a valid reason that has prevented the review applicant from visiting the visa applicant after the international border restrictions were lifted.

29. After the hearing the visa applicant and review applicant provided copies of their current bank balances, to confirm their evidence that they have savings, and are planning to purchase a house in the future. The tribunal accepts the parties have savings. The review applicant and visa applicant both stated that they are saving, so in the future they can put a deposit on a house. The review applicant and visa applicant both stated that they would reside with the review applicant’s family for approximately two years, until they are in a position to buy their own home, subject to a mortgage.

30. The review applicant and visa applicant both stated that the visa applicant would learn English upon his arrival in Australia. The review applicant stated that she was aware there were free English courses in community centres. The review applicant and visa applicant both stated that the visa applicant had not commenced to learn English whilst waiting in Vietnam for the visa application to be processed. The review applicant stated she had not looked into the details of English classes or courses.

31. The review applicant and visa applicant both stated they do not plan a religious wedding in Australia. The evidence was that the marriage would occur in Australia in front of the review applicant’s family and friends. The review applicant and visa applicant stated in the hearing they had not booked or made arrangements for the marriage ceremony or party. The review applicant stated her father worked as a chef, and if there were difficulties in booking, they could always arrange to have the reception at his place of work. The review applicant was aware that the marriage had to occur within a nine month period. The visa applicant did not know the period of time within which the marriage had to occur but was aware that there was a timeframe within which the marriage had to occur. Evidence had previously been provided to the Department and the previously constituted Tribunal of a marriage celebrant booking and notice of intended marriage. The review applicant and visa applicant stated that even though they had waited over seven years since lodging the visa they had not considered marrying in Vietnam during this time. They both stated it was important for the review applicant that the marriage occur in Australia in front of her family and friends.

1. The review applicant provided evidence of ongoing telephone and video calls between herself and the visa applicant. The tribunal is satisfied the parties have been in ongoing communication.

   Does the visa applicant intend to marry an eligible person?

2. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. Based on the review applicant’s Victorian birth certificate, I am satisfied the review applicant is an Australian citizen by birth. The Tribunal is therefore satisfied that the visa applicant claims he intends to marry an Australian citizen. Accordingly, the visa applicant meets the requirements of cl.300.211, at both the time of application, and at the time of decision.

   Have the applicants met in person and are they known to each other personally?

3. Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally. I am satisfied based on the written statements of the review applicant and visa applicant, the oral evidence of the review applicant and visa applicant, the photographs provided in support, and the statutory declarations and statements of witnesses, that the review applicant and visa applicant met in person in December 2014. I am satisfied based on the review applicant’s Victorian birth certificate that in December 2014 she was aged 19 years. I am satisfied based on the visa applicant’s passport, household registration documents, and curriculum vitae that in December 2014 the visa applicant was aged 20 years. The Tribunal is therefore satisfied that the parties had met in person after they had turned 18 years and were known to each other personally at the time of application. Accordingly, at the time of application, the visa applicant meets the requirements of cl 300.214, and continues to meet these requirements at the time of decision.

   Do the parties genuinely intend to marry?

4. Clause 300.215 requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period. The tribunal has carefully considered the evidence before it, and notes the visa applicant and review applicant participated in an engagement ceremony in front of family members with a formal exchange of rings followed by a larger party. The Tribunal has carefully considered the statements and statutory declarations of friends and relatives of the visa applicant and review applicant, and evidence of the relationship between the review applicant and the visa applicant, including photographs of the parties, notice of intention to marry and the bookings made with the celebrant at the time of application. The application for the visa was made on 18 June 2015, one month after the engagement ceremony and celebrations. Based on the evidence provided with the application for the visa, the tribunal is satisfied that at the time of application the parties had a genuine intention to marry and the visa applicant satisfies the requirements of cl.300.215(a).

5. Based on the evidence of the review applicant that she is aware that the proposed date for the marriage must occur within nine months of the visa period, and the evidence of the visa applicant that the proposed date for the marriage must occur within a required period, the tribunal is satisfied that at the time of application, the proposed date for the marriage was intended to take place within the visa period. Based on the evidence before it the tribunal is satisfied that the time of application the visa applicant satisfies the requirements of cl.300.215.

   Do the parties genuinely intend to live together?

6. 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.

7. 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 tribunal notes that it is not making a finding as to whether the review applicant and visa applicant were in a spousal relationship within the meaning of s.5F(2), but whether they had a genuine intention to live as a married couple within the meaning of s.5F(2) at the time of application.

8. At the time of application the review applicant and visa applicant had been engaged for one month and the parties had provided information about their engagement ceremony, and intentions for the future. The tribunal is satisfied that the parties were living in different countries, were both employed and financially independent of each other and did not have a household together or the responsibility for children. The tribunal is satisfied that the friends and relatives of the review applicant and visa applicant were aware of their engagement and their plans for the future.

9. The tribunal has assessed the plans of the review applicant and the visa applicant in relation to their developing relationship and social interaction and commitments for the future, in assessing their genuine intention to live together as spouses. At the end of 2015 the review applicant travelled to Japan with friends, and did not include the visa applicant in her travels, or travel to Vietnam to see the visa applicant at either end of the trip. This indicates that the parties may not genuinely intend to live together as spouses and may not genuinely commit to the relationship and each other.

10. However the next overseas trip undertaken by the review applicant was to Vietnam with her mother to see the visa applicant in 2017. On balance this indicates that the parties were committed to their relationship and their future. The tribunal accepts that the parties planned to live as spouses in the home of the review applicant’s family in Australia at the time of application.

11. On the basis of the above the Tribunal satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore the visa applicant meets the requirements of cl.300.216.

    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, cl.300.214, cl.300.215 and cl.300.216.

13. As stated above the tribunal is satisfied that the visa applicant continues to meet the requirements of cl.300.211 and cl.300.214 at the time of decision.

14. The tribunal has considered the oral and written evidence before it in relation to the whether the parties genuinely intend to marry, and genuinely intend to live together as spouses at the time of decision. The tribunal has taken into account all the written and oral evidence before it, and carefully assessed and balanced the information and evidence. The tribunal is aware that the review applicant and visa applicant reside in different countries, and have spent very little time together. The tribunal is aware that the parties became engaged in May 2015, which is over seven years ago. The tribunal accepts that the family and friends of the review applicant and visa applicant are aware of the engagement. The tribunal gives weight to the oral evidence of the visa applicant’s sister and the review applicant’s friend, in addition to the information provided to the tribunal by the review applicant in support of the application for review.

15. However the tribunal gives the most weight to the evidence of the review applicant and the visa applicant of their own commitment to their own relationship over the last seven years, as an indication of the genuineness of their commitment and intention to marry and live together as spouses.

16. The tribunal accepts the parties have individually saved money in their own savings account. The tribunal accepts the parties gave consistent evidence that they plan to live at the home of the review applicant’s family. The tribunal notes that the visa applicant has not undertaken any English course in Vietnam, there is no detailed evidence proposed English classes for the visa applicant in Australia. There is no detailed evidence of the planned life together as spouses, apart from the proposal that the parties would live with the review applicant’s family for approximately two years, and the visa applicant will have employment arranged by his cousin or his cousin’s parents in their factory. The tribunal accepts that when assessing genuine intention one is looking at future plans rather than assessing the current relationship.

17. The tribunal has considered the review applicant has chosen to travel overseas on four occasions in 2015, 2017, 2018 and 2022 to destinations without the visa applicant. The review applicant has chosen to travel with friends, to countries where the visa applicant would apparently have difficulty obtaining a visa and could not join them. The review applicant has travelled overseas and chosen not to visit the visa applicant who she claims is her fiancé and with whom she claims she wishes to marry and live with as her spouse. The tribunal accepts the review applicant has travelled to Vietnam in 2015 for the engagement ceremony, in early 2017 with her mother, for two days at the end of 2017 after travelling to Korea, and in 2019 with her friends. The review applicant and visa applicant both stated they supported the review applicant’s choices not to travel to spend time with the visa applicant. The tribunal finds this inconsistent with a commitment to spend the rest of their lives together as a couple. The tribunal finds this inconsistent with their evidence that they had found the long separation due to the visa processes and appeal processes difficult. The tribunal finds the evidence of the review applicant and visa applicant does not indicate that they genuinely intend to marry and genuinely intend to live together as spouses, when the priority has not been to spend time together, or to meet up after years apart because of the pandemic.

18. The tribunal accepts the evidence of the review applicant that she is young and can travel with whom she likes. The tribunal accepts the evidence of the visa applicant that he did not wish to join the review applicant on her travels. The tribunal does not dispute the evidence of the review applicant and visa applicant as to their choices. However, the tribunal does find the evidence before it does not indicate that the review applicant and visa applicant have demonstrated that they genuinely intend to marry and live together as spouses.

19. Based on the evidence before it, the tribunal is not satisfied that at the time of decision the visa applicant meets the requirements of cl.300.215(a) that the parties genuinely intend to marry, or that at the time of decision the visa applicant meets the requirements of cl.300.216 that the parties genuinely intend to live together as spouses. For this reason, the tribunal is not satisfied that at the time of decision the visa applicant meets the requirements of cl.300.221.

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

    decision

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

    Margie Bourke
    Member