Trinh (Migration)

[2018] AATA 1758

Trinh (Migration) [2018] AATA 1758 (6 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Ban Trinh

VISA APPLICANT:  Ms Thi Quyen Pham

CASE NUMBER:  1514953

DIBP REFERENCE(S):  BCC2014/2690671

MEMBER:Ian Garnham

DATE:6 May 2018

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 visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.211, 300.214, 300.215 and 300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 06 May 2018 at 11:25am

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Intention to marry – Photos and videos – Engagement ceremony – Venue booking – Applicant’s incarceration – No combined finances – Resided together – Letter and phone contact – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65,
Migration Regulations 1994, r 1.15A, Schedule 2 cls 300.211, 300.214, 300.215, 300.221

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

2. The visa applicant applied for the visa on 13 October 2014. 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.300.215 and cl.300.216.

3. The delegate refused to grant the visa on 30 October 2015 on the basis that the visa applicant did not satisfy cl.300.215, 300.216 and 300.221 of Schedule 2 to the Regulations because they were not satisfied that at the time of application and at the time of decision the parties did have a genuine intention to marry within the visa period or to live together as spouses as required by the legislation.

4. The review applicant (sponsor) appeared before the Tribunal on 16 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from; the visa applicant, Thi Quyen Pham, his daughter, Anh Thi Murphy, a cousin, Thi Bich Nguyen and a colleague, John Pham.  

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether, at the time of application, the parties intend to marry within the visa period and live together as spouses, and, if so, whether at the time of decision they continue to do so.

Does the visa applicant intend to marry an eligible person?

1. 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 information before the Tribunal confirms that the review applicant holds an Australian passport since 25 May 2010.[1] 

   [1] At F: 20 (DIBP)

2. The Tribunal is satisfied that at the time of application the visa applicant intended to marry an eligible person, the review applicant.  Accordingly the requirements of cl.300.211 are met.

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

10.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.  On the evidence before me, including the extensive photographic and video evidence provided at hearing, I am satisfied that the parties have met and are personally known to each other as they have stated.  Therefore, at the time of application, the requirements of cl.300.214 are met.

Do the parties genuinely intend to marry?

11.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.

12.At the hearing it was put to the review applicant that the visa applicant had stated at interview that they could not get engaged or married because of their different religions.  The visa applicant is Roman Catholic and the review applicant is a Buddhist.  The visa applicant said after he was released and returned to Vietnam the parties were planning to get married during that trip but the visa applicant is only prepared to get married in a church because of her religion. 

13.However at the hearing the review applicant provided the tribunal with a copy of a video of the parties conducting a formal engagement in January 2016.  They claim over 100 guests attended including many family members and the review applicant’s oldest son, and siblings and their families who live in Vietnam attended.  The tribunal worked through the various photographs provided by the review applicant at the hearing.  These photographs included evidence of the engagement party and trips the parties had made to Hanoi and Saigon.  The tribunal is satisfied that the parties did conduct an engagement ceremony as they have described.

14.In this case, with respect to the parties’ intention to marry within the visa period (9 months), at the date of application, the parties have not provided a pre booking of a Catholic church as is usually provided in prospective marriage cases.  However the parties are unrepresented and unsophisticated in relation to the legislative requirements and were unaware of this ongoing requirement.

15.However, the review applicant’s period of incarceration predates the date of application.  The examples of letters written to each other during this period, that they have provided[2] strongly imply an intention to marry within the visa period.  On this basis I am satisfied that at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a).  I am also satisfied that the proposed date for the marriage is within the visa period as required by cl.300.215(b).

[2] At FF: 293-316 (AAT)

16.Therefore, the requirements of cl.300.215 are met.

Do the parties genuinely intend to live together?

17.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.

Claimed background to this relationship:

18.The visa applicant is now 51 years old and resides in Vietnam.  She claims she has had no previous relationships.

19.The review applicant came to Australia from Vietnam in 1984 as part of a Humanitarian visa program.  He has declared one previous relationship.  He married on 18/10/75 and divorced on 20/05/1994.  There are 3 children of the relationship who are now 31, 39 & 43 years old.

20.The review applicant travelled to Vietnam on 27/05/2010 to visit his brother who was terminally ill with stomach cancer.  The review applicant’s brother died on 12/06/2010.

21.The parties claim they met on 5 June 2010 when the visa applicant came to visit the review applicant’s brother.  She also attended the review applicant’s brother’s funeral service.  One day after the service the review applicant went to the visa applicant’s house to thank her for attending and the relationship developed rapidly from this point. 

22.The review applicant returned to Australia on 24/06/2010 and the parties’ claim they began communicating by telephone but cannot now provide phone records for this period.  The review applicant returned to Vietnam on 17/02/2011 and they claim they became intimate soon afterwards.  The review applicant said that he stayed at the house of the visa applicant and sometimes at his mother’s house which is about 7km away.  The review applicant also said that he travelled with the visa applicant to Hanoi during this period and they slept at a hotel for 2-3 days but did not keep the receipt.

23.The review applicant returned to Australia on 24/03/2011 and underwent a period of incarceration from August 2011 until 26 March 2014. 

24.The review applicant again travelled to Vietnam in the period 20/07/2014 to 31/08/2014 and since the delegate’s decision he has made further trips in the following periods; 09/11/2015 to 17/02/2016 and 30/11/2016 to 14/02/2017.     

25.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.

Financial aspects of the relationship:

26.The delegate acknowledged that the parties do not have joint ownership of real estate or other major assets, joint liabilities, or have pooled their financial resources.  They also acknowledged that because they live in different countries it is difficult for them to combine their financial affairs.

27.At the hearing the review applicant said when he was released from prison he undertook a course in painting which he completed in mid-2016 and he has worked as a painter since that time.  The review applicant said his only major asset is his motor vehicle worth approximately $9,000.  He claims he is earning consistent income from his painting projects and has approximately $16,000 in the bank.

28.The review applicant understands the visa applicant is earning sufficient income to support herself.  The review applicant claims he has repaid approximately $3,500 AUD that was borrowed from a cousin of the visa applicant to pay for the engagement ceremony.

29.Aside from the major payments made by the review applicant for the engagement ceremony, the parties have not combined their finances.  The visa applicant maintains that she earns a reasonable income through the family sewing business and that she intends to work and combine finances with the review applicant when she comes to Australia.

Nature of the household:  

30.I accept that the parties began an intimate physical relationship when they claim they did in 2011.  The review applicant sought to submit a video depicting the physical side of their relationship to the tribunal but the tribunal declined to receive this evidence.  However I accept that they began an intimate physical relationship in early 2011 when the review applicant returned to Vietnam as they independently claimed. 

31.The review applicant currently lives with a friend and pays rent of approximately $400/month to his daughter who owns the house.  The visa applicant lives at her mother’s house and they share a yard with two of her brother’s and their families who live nearby.

32.When the review applicant is in Vietnam the parties claim to live together mainly at the house of the visa applicant.  The review applicant also spends a few days at his 94yo mother’s house that they travel the 7-8 km by motor bike.  The visa applicant takes her sewing with her to continue her work during this time.  The visa applicant maintains that she speaks with and visits the review applicant’s sister and mother approximately monthly and at significant festive times such as Chinese New Year.

33.Mr Pham the colleague of the review applicant has known him for only one year but acknowledged that he regularly talks about the visa applicant and travels to Vietnam to visit her.

34.The visa applicant’s daughter claims to have met the visa applicant on two trips she has made to Vietnam.  Firstly they met at the funeral of the review applicant’s father who died in 2013 while the review applicant was incarcerated.  The parties claim that the review applicant’s two sons have also visited the visa applicant in Vietnam.  Once again the visa applicant independently confirmed this evidence and the dates of meeting the review applicant’s children.

35.The cousin of the visa applicant who gave evidence to the tribunal said that she had recently been in Vietnam with the parties.  She learned of the relationship when the review applicant was incarcerated.  The visa applicant told her she was in love with the review applicant; she was aware he was incarcerated at the time and that she was seeking to marry him.

Commitment to the relationship:

36.The delegate was critical of the genuineness of the relationship because the visa applicant …did not know why the sponsor was sentenced to prison and they were…unable to explain why she did not try to find out the reason the sponsor went to prison or how it has affected their relationship.

37.At the hearing the review applicant confirmed that he had only recently told the visa applicant why he was incarcerated.  He said he did this when he was last in Vietnam in early 2017.  He said he was ashamed of his crime and previously avoided telling the visa applicant this when she had tried to find out from him.  The visa applicant also independently confirmed this to be the case and also said that while she was concerned that he was incarcerated she knew he was a ‘good man’ and this did not affect her love for him or her willingness to proceed with the relationship.

38.I am satisfied that the applicants’ evidence to the tribunal on this point was truthful and that the acceptance of the visa applicant for the review applicant despite his failure to disclose the reason for his incarceration represents significant commitment by her to the relationship. 

39.During the period of the review applicant’s incarceration the parties wrote to each other approximately a dozen times.  After the hearing the tribunal has been provided with a translated selection of these letters.[3]  The translated letters provided are best described as love letters and clearly express an intention to live together as spouses when possible.

[3] ibid

40.The parties have also claimed that they also maintained approximately weekly phone contact during the period when the review applicant was incarcerated.  I am satisfied that this did occur as the phone calls are referred to in some of the translated letters and the failure to produce a record of the calls is consistent with my understanding of the penal telephone access systems.   

41.I am satisfied that despite the review applicant’s significant period of incarceration the parties have maintained close contact since they claim to have committed to the relationship.

42.After the review applicant was released from prison he claims he returned to Vietnam to spend time with the visa applicant, he delayed completion of his painting course to do this.

43.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.

44.I am satisfied that the relationship is now of approximately 7 years duration and that the parties have spent approximately 9 months of that period living together as spouses in Vietnam. 

45.As set out above I am also satisfied that they genuinely continue to intend to marry, within the visa period and live together as spouses in Australia.

46.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

47.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, 300.214, 300.215 and 300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

Ian Garnham
Member