Vang (Migration)

[2021] AATA 764

Vang (Migration) [2021] AATA 764 (10 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr The Vang

VISA APPLICANT:  Miss Choua Xiong

CASE NUMBER:  1816819

DIBP REFERENCE(S):  BCC2017/754019 CLD2018/30603410

MEMBER:John Longo

DATE:10 February 2021

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

·cl.300.221 of Schedule 2 to the Regulations.

Statement made on 10 February 2021 at 10:02am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – intention to marry and live together as spouses – marriage booking to be rescheduled – short introduction period – applicants known to each other personally – money transfers – plans to purchase home – child of the relationship – decision under review remitted     

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.15; Schedule 2, cls 300.211, 300.214, 300.215, 300.216, 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 22 February 2017. 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).

3. The delegate refused to grant the visa on 19 April 2018 on the basis that the visa applicant did not satisfy cl.300.211; cl 300. 214; cl.300. 215; cl.300.216; and cl.300.221 of Schedule 2 to the Regulations because, having regard to the considerations set out in r.1.15A(3) for spousal relationships, the delegate was not satisfied the visa applicant and sponsor demonstrated that they were in a genuine and continuing relationship.

4. The review applicant appeared before the Tribunal on 8 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Miss Choua Xiong. The Tribunal hearing was conducted with the assistance of an interpreter in the Hmong and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant and sponsor intend to marry, have known each other personally and intend to live together as spouses.

   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. In the visa application, which was lodged on 22 February 2017, the visa applicant stated that the date of her intended marriage to the sponsor was 17 June 2017. A marriage booking at the Victorian Marriage Registry was also provided to the Department, which stated that the visa applicant and the sponsor were booked to be married on 17 June 2017. The sponsor stated that he asked for the booking to be rescheduled but is unsure if this will occur. He stated that if the booking cannot be rescheduled, then he will make another booking.

8. The Tribunal also notes that an engagement certificate signed by the visa applicant and sponsor and dated 20 December 2015 was provided to the Department. The sponsor stated that they decided to get engaged on 12 December 2015 and became engaged on 20 December 2015. The sponsor told the Tribunal that while they became engaged very quickly after meeting, they loved each other and wanted to marry. The visa applicant also stated that while they were engaged quickly, they had fallen in love and had limited time to get engaged before he had to return to Australia. The Tribunal is satisfied that the documentary and oral evidence of the parties demonstrates that the visa applicant intends to marry the sponsor, who is an Australian citizen. Accordingly, the requirements of cl.300.211 are met.

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

9. 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. The review applicant and the visa applicant both confirmed that they met for the first time Laos in December 2015. At the time of their first meeting, the review applicant was 48 years old and the visa applicant was 23 years old. The review applicant also provided photographs from this meeting in Laos. The Tribunal is satisfied, based on the oral and documentary evidence provided, that the review applicant and visa applicant are known to each other personally. Therefore, at the time of application, the requirements of cl.300.214 were met.

   Do the parties genuinely intend to marry?

10. 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. As discussed above in the reasons for the decision, the review applicant had made a marriage booking at the Victorian Marriage Registry which stated that the visa applicant and the sponsor were booked to be married on 17 June 2017. The review applicant stated that he has advised the Victorian Marriage Registry office of the delay, and if he is unable to reschedule the booking he will make another booking when the visa applicant arrives in Australia. At the time of application, the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a). The proposed date for the marriage is within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together?

11. 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.

12. The review applicant stated that he is currently living at his cousin’s home, but when the visa applicant comes to Australia they intend to rent their own home together. The visa applicant also stated that this is their intention and that they plan to save towards buying their own home. The review applicant confirmed that he sends money to the visa applicant, and has been doing so since 2016. The Tribunal notes that Western Union money transfers were provided both to the Tribunal and the Department which show transfers from the review applicant to the visa applicant since 2016.

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 finds that the parties have to some degree started pooling financial resources, with the review applicant providing financial support to the visa applicant for her and her child. The Tribunal also finds that they have made plans to share a household, and discussed further children and the purchase of real property together. They have made plans to work so as to achieve these goals. The Tribunal is satisfied that they have intentions for a mutual commitment to a shared life as a married couple to the exclusion of all others and that they intend to live together as spouses. 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.

    Do the parties continue to meet time of application requirements?

14. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses.

15. The review applicant stated that after they were engaged in 2015, he returned to visit the visa applicant on two further occasions in 2017 (staying for about one month) and again in 2018 (staying for about three weeks). Both the review applicant and visa applicant stated that they spent their time together on each visit by the review applicant, staying with the visa applicant’s family and on occasion in a hotel. The review applicant and visa applicant also provided photographs to the Department and the Tribunal which show the review applicant and visa applicant together in Laos.

16. The Tribunal notes that the review applicant has provided evidence that shows the visa applicant gave birth to a baby boy on 8 October 2019. The documentary evidence shows the visa applicant and review applicant are the biological parents of the child. They both stated to the Tribunal that they intend to have more children, and that they intend to both work and save towards purchasing a home. They both stated that the review applicant’s mother, who will live with them, will assist in caring for their son while they are working. The visa applicant stated that it is very difficult currently for them to be apart, and that if she is able to come to Australia they can provide support to each other.

17. The parties have maintained their intention to marry and have had continued contact with each other since the time of the application, both in person with the review applicant travelling overseas and by telephone. The applicant stated that they will marry in Australia and he will make those arrangements when the visa applicant is in Australia. He has continued to provide financial and emotional support to the visa applicant and they have made plans towards their lives together as spouses. The Tribunal is satisfied, based on the oral and documentary evidence of the parties, that they continue to satisfy 300.211, 300.214, 300.215, and 300.216 at the time of decision. Accordingly, cl.300.221 is met.

18. 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

19. 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; cl.300.214; cl.300.215; cl.300.216 of Schedule 2 to the Regulations; and

    ·cl.300.221 of Schedule 2 to the Regulations.

    John Longo
    Member