Tran (Migration)

[2021] AATA 2602

Tran (Migration) [2021] AATA 2602 (7 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Truc Trung Tran

VISA APPLICANTS:  Ms Uyen Ngoc Huynh
Master Man Minh Pham

CASE NUMBER:  2013894

DIBP REFERENCE(S):  BCC2019/3434717

MEMBER:Rosa Gagliardi

DATE:7 June 2021

PLACE OF DECISION:  Australian Capital Territory

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.300.211; cl.300.212; cl.300.214; cl.300.215; cl.300.216; and cl.300.221 of Schedule 2 to the Regulations.

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

·cl.300.311 of Schedule 2 to the Regulations.

Statement made on 07 June 2021 at 1:16pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – financial aspects – household arrangements – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.211, 300.216

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 9 July 2019. 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 18 August 2020 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because there was limited evidence that the parties genuinely intended to marry and live together as spouses as defined.

4. The review applicant/sponsor appeared before the Tribunal in person on 22 April 2021 to give evidence and present arguments. In addition, the Tribunal received oral evidence from the applicant and her son in Vietnam over the phone and from a range of other witnesses in Australia by phone also.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the visa applicant intend to marry an eligible person?

7. 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.  The Tribunal is satisfied that the parties genuinely intend to marry within the relevant period, even though they were honest in stating that their marriage celebration would be modest given they had both been married previously.

8. Accordingly, the requirements of cl.300.211 are met.

   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.

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.

    Background

11. The sponsor, a 54-year-old male, is an Australian citizen by grant who had been sponsored to Australia by a previous wife.  The parties were married for 7 years but the person who sponsored him was not able to cope with the sponsor’s gambling addiction and the marriage broke down some 8 years ago.  As a result of his gambling he has not been able to form another relationship until meeting the applicant.  He also stated at hearing that he had been very lonely, and that gambling had offered him an escape and a place to be in the presence of others.  However, since the initial stages, he had reduced his gambling.

12. The applicant is 44 years of age and has been previously married and has a child of that marriage who has been included in this application.  She has been working in retail, selling watches living above the shop with her son.

13. The sponsor came across as a credible witness and third-party support for the relationship was also strong. 

14. The Tribunal has taken into consideration the delegate’s decision which reflects part of an interview with the applicant in which she appeared to give inconsistent dates.  For example, the applicant appeared to indicate that after meeting the sponsor in January 2019, they became lovers, yet stated that they were “friends” when the sponsor attended his mother’s funeral in May 2019.  She later stated that she and the applicant became closer after the funeral of the sponsor’s mother.  When asked about these inconsistencies, the sponsor stated that the applicant had been driving her car when the Department rang to interview her and was very nervous.  The Tribunal has no means of verifying this, nonetheless, it is prepared to accept that the applicant, for whatever reason, used terminology loosely in terms of when the parties were “friends/lovers”, and that she had poor recall of events.  After having considered the evidence as a whole however, the Tribunal is satisfied that the applicant’s lack of precision at interview, does not reflect adversely on whether the parties have a genuine intention to marry and live together as spouses.

15. While the parties did agree to marry in haste the Tribunal accepts that their relationship was not able to be developed in person due to the COVID-19 pandemic. The sponsor had purchased tickets to travel to Vietnam again but the flight had been cancelled and Australia’s borders were closed.  The Tribunal acknowledges that had the parties the opportunity to spend additional time together they would have been able to provide further evidence of their relationship. 

16. Instead it appears that the sponsor was very taken by the applicant on meeting her at the store where she sells watches and that their relationship developed from there.  The parties both gave evidence that the sponsor proposed at the Lunar New Year festival, when he was accompanying the applicant and her son, and that after that, the sponsor met other members of the applicant’s family.

17. It appears that the parties did not celebrate any formal engagement party.  As the parties both stated, the sponsor’s mother was dying and eventually passed away and it would not have been right to conduct such a celebration during the mourning period.  Further, they both stated that they had had ‘failed marriages’ behind them and they would celebrate in Australia where the sponsor also has family.

    Financial aspects of the relationship

18. The sponsor admitted at hearing that he tried to save money from the work he undertook in a bakery, but he would then “blow” it on gambling.  He is currently living with his sister and her children in her home.  The sponsor’s impecunious circumstances mean that he is struggling to make savings, although evidence was given at hearing about how the sponsor sent funds to the applicant through friends to assist her and her son with their living costs.  The Tribunal has also sighted evidence of transfers made to the applicant, including the transfers submitted at the time of application which totalled AUD1500, between March 2019 and July 2019.

19. At hearing the sponsor stated, when asked, that the applicant’s son’s biological father also assisted the secondary applicant financially to some degree.

20. Given the circumstances in which neither party is able to travel to visit each other, the Tribunal does not consider it reasonable to place significant weight on the lack of evidence of any financial investments together or joint liabilities.  Looking to the future, the Tribunal is satisfied that the applicant has a genuine belief that he can provide for the family unit and stated at hearing that he would have himself excluded from any gaming venue.

21. When the Tribunal spoke to the sponsor’s brother in Australia, he stated that the sponsor really needed to be looked after.  He needed someone to cook and care for him and that having companionship would assist his well-being.  The applicant and sponsor stated that they wanted to establish a home with the applicant away from the sponsor’s sister’s residence to have privacy and establish their family unit.  She stated that if necessary, she might later try to work outside the home.

    Household arrangements

22. The parties submitted a copy of an invoice for a stay at a hotel room in May 2019.  The delegate noted that this was not evidence that the parties shared a household during this period.  At hearing the parties gave consistent evidence that the reason they stayed at the hotel was because the parties wanted to consummate their relationship but the sponsor felt awkward about doing so at his parents’ home and the arrangements of the applicant’s home were that she slept in the same room with her son, thereby also making intimacy awkward.  The Tribunal accepts that in the circumstances the parties did what they could to set up a household. 

23. A Temporary Household Registration was also submitted stating that the sponsor had stayed at the home of the applicant from 3 June 2019 to 12 June 2019.  From this evidence, the delegate was not satisfied that the parties had shared household responsibilities.  The Tribunal considers that the registration documentation ought to be viewed in light of the photographic information showing the parties in household situations together with the sponsor’s family members.

24. The Tribunal is satisfied that had the applicant been able to travel in 2020 he would have been able to demonstrate more strongly the household nature of the parties’ relationship.  The fact the sponsor sees it as his responsibility to ensure the applicant’s son is able to study and provides financial support, is also indicative of the parties having a genuine intention to set up a home together and to share their resources.

    Social aspects of the relationship

25. At the time of application, the delegate noted the photographic material submitted to the Department, including as a couple, with friends and family and on different occasions and that, “The photographs indicate that you and your sponsor have undertaken some joint social activities, have been in the company of each other’s friends and families and have travelled together”.  The Tribunal has had regard to this photographic material also which shows the sponsor and applicant participating together at the sponsor’s mother’s funeral rites.  There are also photos of the applicant together with the sponsor beside the sponsor’s mother during her illness.  Given the intimacy of such events the Tribunal is satisfied that such photographic material was not taken for the purpose of enhancing the parties’ claims, particularly as the photographs are not taken of the couple in isolation.  The Tribunal also must take into account that had the sponsor been able to travel to Vietnam more recently as he wished to do, that he would have even further photographic material depicting himself and the applicant in social situations, together with family and friends.  The Tribunal places significant weight on the photographic material submitted which demonstrates an openness about the relationship with the communities of the applicant and sponsor in Vietnam.

26. Importantly, the Tribunal also took evidence from the secondary applicant who was clear in stating that his mother had found happiness in her relationship with the sponsor and that he was supportive of her moving forward with the sponsor.

27. The sponsor appears to be somewhat isolated in Australia, not least because of his history with gambling addiction.  Nonetheless, the people who did provide evidence orally at hearing were very persuasive in attesting to the sponsor’s genuine desire to settle down and have a normal family life.  The sponsor’s brother, for example, stated that the sponsor really needed somewhere to care for emotionally and physically.  The sponsor’s sister who lives with the sponsor has also provided a persuasive statutory declaration, attesting to the genuine and continuing nature of the relationship between the parties.

28. At hearing the sponsor asked the Tribunal to ring the spouse of a man the sponsor had been friendly with, and who had joined him at gaming venues in a gesture of companionship.  When this friend’s spouse found out about the activity that bound their friendship, she forbade her husband from having anything to do with the sponsor.  Nonetheless, the sponsor was prepared to have the Tribunal speak to his friend’s wife.  She too was aware of the relationship and indicated that the sponsor had spoken about his relationship overseas frequently.

29. Having regard to the evidence as a whole the Tribunal is satisfied that the parties’ relationship as spouses is recognised within their familial and social circles.

    The nature of the persons’ commitment to each other

30. The sponsor stated that his addiction had been problematic initially and he had now curtailed his activities because he was aware that he had responsibilities toward the applicant and her son.  He also stated that it was his lack of family and companionship that still at times led him to seek solace in gambling.  He stated that he was careful not to get into debt.

31. The applicant at hearing stated that her understanding was that the sponsor was no longer gambling.  When the Tribunal put the inconsistency in the applicant’s understanding of his circumstances, the sponsor stated that he was embarrassed that he had not completely avoided gaming venues and would immediately put himself on an exclusion list.  While it is expected that parties to a genuine and continuing relationship are open with one another about their difficulties in particular, the Tribunal does not find that the sponsor concealing from his spouse the fact that he might still attend gaming venues irregularly, reflects adversely on his commitment to the applicant and her son.  At hearing the sponsor stated that he was waiting for the applicant to arrive in Australia to provide him with companionship and support to start a new life.   From the evidence submitted the Tribunal is satisfied that the applicant’s support of the sponsor is not conditional and that the sponsor is extremely eager to ensure that he does not compromise his family life at all.

32. The Tribunal accepts that the parties within the confines of the pandemic provide each other with companionship and support and that they have a shared vision of their future as a family in Australia.  The Tribunal is satisfied that the sponsor works to support the applicant financially, together with the secondary applicant, as best he can and that he sees himself as the head of the family.

33. The Tribunal is satisfied that the parties are not living separately and apart on a permanent basis; that their relationship is genuine and continuing; and that they have a commitment to one another to the exclusion of others.

    Conclusion

34. 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.

35. 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

36. 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.300.211; cl.300.212; cl.300.214; cl.300.215; cl.300.216; and cl.300.221 of Schedule 2 to the Regulations.

37. The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the secondary visa applicants meet the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300.311 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member