Vo (Migration)

[2018] AATA 1659

Vo (Migration) [2018] AATA 1659 (23 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Thanh Chi Vo

VISA APPLICANT:  Ms Thi Phuong Nguyen

CASE NUMBER:  1616380

DIBP REFERENCE(S):  OSF2015/071346

MEMBER:K. Chapman

DATE:23 April 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 23 April 2018 at 5:08pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Whether the parties genuinely intend to marry – Witness credibility – Limited knowledge of other party’s circumstances – Third party allegation of contrived relationship - Whether relationship entered into in order to secure a migration outcome – Lack of genuine intention to marry – Whether the parties genuinely intend to live together as spouses -  Evidence of genuine spousal relationship contrived to secure a migration outcome – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359AA
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 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, Ms Thi Phuong Nguyen, applied for the visa on 28 October 2015. This application was sponsored by her fiancé, Mr Thanh Chi Vo (the ‘review applicant’). 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.

3. On 16 September 2016, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.300.215, cl.300.216 and cl.300.221 of Schedule 2 to the Regulations because of a lack of satisfaction concerning the visa and review applicants’ genuine intention to marry each other within the visa period, and their genuine intention to live together as spouses, both at the time of the visa application and at the time of decision. On 5 October 2016, the review applicant applied to the Tribunal for review of the visa refusal decision. Following lodgement of the review application, voluminous documentary evidence was submitted to the Tribunal on behalf of the review applicant. The Tribunal has duly considered that material.

4. The review applicant appeared before the Tribunal on 4 April 2018 to give evidence and present arguments. He was assisted by his registered migration agent. The Tribunal also received oral evidence by telephone from the visa applicant who was located in Vietnam. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Both the review and visa applicants’ confirmed they understood the interpreter. Following discussion with the review applicant regarding whether additional witnesses would be called, he confirmed that he did not wish to do so.

5. Shortly prior to the review hearing, the review applicant submitted a letter from general practitioner Dr Lai Ho dated 29 March 2018. It indicates that the review applicant suffers from multiple medical conditions which make him “generally slow to comprehend accurately”, “slow in communication and self-expression” and that “his short term memory is significantly affected.” Of note, the letter concludes with the sentence, “There was no formal testing of memory or cognitive function carried out”. At the beginning of the review hearing the review applicant started to read a prepared statement concerning his health conditions. The Tribunal invited him to explain without the aid of notes what his health concerns were. He explained that he suffered from memory loss resulting from past surgery. The Tribunal discussed with him the content of the medical certificate and he confirmed that he has never had formal testing of his memory. The Tribunal advised the review applicant that it was treating him as a vulnerable person and that he would be accommodated to take breaks as required.

6. In taking the review applicant’s oral evidence, the Tribunal observed him to be lucid and display a detailed recollection of events. For example, he explained to the Tribunal in great detail of his past work as a fisherman, previous relationships and the circumstances regarding his purported relationship with the visa applicant. Following careful consideration of the review applicant’s circumstances, the Tribunal is satisfied that he did not display any signs of memory loss during the review hearing and that he was able to fully comprehend the proceedings. The Tribunal did not observe any of the difficulties with memory cited by Dr Lai. Given that Dr Lai notes the review applicant has not had ‘formal testing of memory or cognitive function carried out’, in conjunction with his lucid display of oral evidence, the Tribunal is satisfied that his health conditions have not adversely affected his ability to present his case. Accordingly, the Tribunal is satisfied that the review applicant was provided with a fair opportunity to put forward his contentions and he was not adversely affected by memory problems.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

8. According to the visa application and material in support, Mr Vo (the review applicant) is a 67 year old Australian citizen in receipt of a Centrelink pension. He migrated from Vietnam to Australia, via New Zealand, in 1982. Mr Vo has changed his name on several occasions. He was in a previous de facto relationship in Australia between 1992 and 1997. He sponsored a previous spouse from Vietnam on a Partner visa, she arrived in Australia in 2003, they separated in 2005 and divorced in 2006. Ms Nguyen, the visa applicant, is a 43 year old national of Vietnam. She met Mr Vo in February 2007 when he was visiting Vietnam. They remained in contact as friends. On 8 March 2012, during a subsequent visit to Vietnam, Mr Vo confessed his feelings for Ms Nguyen and she reciprocated. This date was recalled in a statement by Ms Nguyen as coinciding with International Women’s Day. Following this visit, Mr Vo underwent medical treatment in Australia. On 1 January 2014, Mr Vo proposed to Ms Nguyen via telephone on her birthday. They conducted an engagement ceremony in Vietnam on 16 August 2014 and planned to marry in Australia on 19 June 2016. Following refusal of the visa application, Mr Vo and Ms Nguyen amended the date of their proposed wedding to 20 June 2018.

   ISSUES AND LAW

9. The Prospective Marriage (Temporary) (Class TO) visa is 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. In the present matter, the review applicant is an Australian citizen. The issues in the present case are whether the requirements in cl.300.215, cl.300.216, and cl.300.221 are met, which requires the Tribunal to be satisfied that the visa and review applicants’ have held a genuine intention to marry each other within the visa period, and have held a genuine intention to live together as spouses, both at the time of the visa application and at the time of this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal has had regard to all of the evidence before it concerning the time of application and the time of decision. Documentary evidence submitted by the parties’ contained in both the Departmental and Tribunal files included, but was not limited to, the visa application and sponsorship, Notices of Intended Marriage, photographs, third party statements in support of the relationship, travel documentation, funds transfer receipts, consumer receipts, message records, personal correspondence, documentation pertinent to Vietnamese law, Centrelink documentation, medical records and written submissions. The aforementioned material has been duly considered by the Tribunal.

    Evidence of the review applicant (Mr Vo)

11. The oral evidence of the review applicant may be summarised as follows. He outlined his background in the manner referred to above. He is a retired fisherman in receipt of a Centrelink pension. The review applicant has maintained a room in the home of a Vietnamese family in Brisbane for many years, whilst he split his time between fishing from Cairns and taking leave in Brisbane. He currently resides with this family, ‘Thuan’ being his landlord. The review applicant is also friends with Thuan’s sister, ‘Thuy’. It was through Thuy that the review applicant met the visa applicant in Vietnam during 2007, whilst they performed charity work in Da Nang. The visa applicant is a hairdresser. Between 2007 and 2012 the review and visa applicants’ maintained a friendship speaking by telephone from time to time, noting that contact could not be maintained when the review applicant was fishing for months at a time.

12. The review applicant returned to Vietnam in 2012 to visit his relatives in Vung Tau. He also went to Da Nang to visit the visa applicant. Around 8 March 2012 he went for dinner and a stroll along the Han river with the visa applicant and expressed his feelings towards her. She reciprocated and their relationship began. When asked to confirm the date of this occasion the review applicant noted that he “was guessing.” Following this evening they decided to rent a house in Da Nang from a mutual friend, in which they stayed for just over one month together. Additionally, the review applicant took the visa applicant to meet his relatives in Vung Tau. When asked by the Tribunal if his residence was registered with the Vietnamese authorities (which is a requirement for foreigners), the review applicant advised that he insisted the landlord undertake this process, however that process was not concluded by the time they departed.

13. The review applicant returned to Australia in 2012 and then developed health problems which required treatment, particularly regarding his eye sight. He remained in touch with the visa applicant by telephone. On 1 January 2014, the visa applicant’s birthday, the review applicant proposed to her and received her acceptance. The review applicant returned to Vietnam around August 2014 and held an engagement ceremony with the visa applicant on 16 August 2014. The visa applicant’s relatives attended as did the review applicant’s older brother. His other relatives did not attend from Vung Tau as they are too poor. He confirmed that neither he nor the visa applicant had any relatives residing in Australia. The engagement ceremony was apparently “like a proper traditional wedding.” When asked by the Tribunal why he did not marry the visa applicant in Vietnam, the review applicant advised that when he was previously married in that country he had to pay bribes and the process was “too bureaucratic” for him to repeat it. Given the review applicant’s medical conditions he wants to marry the visa applicant and live with her in Australia. The review applicant outlined that he last saw the visa applicant on a return visit to Vietnam in 2017. He plans to marry her on 20 June 2018. The venue for the wedding will be the house where he is staying in Brisbane with Thuan.

14. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised with the review applicant that the Department of Immigration file (at folios 138-142) contains a record of interview conducted between the visa applicant and a Departmental officer in Vietnam on 17 May 2016. The record tends to suggest that the visa applicant displayed a limited knowledge of her wedding arrangements in Australia and also of the review applicant’s circumstances in Australia. For example, page 7 of the record indicates that the visa applicant was asked ‘Who has been invited for the wedding’ and she replied ‘I do not know’. She was also asked ‘Please tell me about the wedding day arrangement?’ and she replied ‘I do not know’. At page 8 the record indicates the visa applicant did not know how the review applicant met his friend Thuan, why he retired, why he stopped working and whether he had any savings or investments. At page 9 the record indicates the visa applicant was unaware how the review applicant knew Thuy and Thuan or what things they all did together.

15. The Tribunal advised that the above information is relevant as it tends to suggest that at the time of the interview the visa applicant had a limited knowledge of her wedding arrangements in Australia and also of the review applicant’s circumstances in Australia. This casts doubt upon her credibility and the genuineness of her relationship with the review applicant. Accordingly, if the Tribunal relied upon the information it would be the reason or part of the reason to affirm the decision under review. The review applicant confirmed he understood why the information is relevant to the review and the consequences of the Tribunal relying upon it. The Tribunal offered the review applicant more time to comment on or respond to the information. He chose to respond immediately.

16. The review applicant outlined that the Department had been very difficult, and they claim their relationship is not genuine. He indicated he has lived with the visa applicant as husband and wife and he is not sure what more he needs to provide to show it is genuine. The Tribunal has carefully considered his response in its decision making process. It is worth pausing to reflect that the initial planned wedding date for the visa and review applicants’ was 19 June 2016 (which is reflected in the Departmental delegate’s decision provided to the Tribunal by the review applicant), approximately one month after the conduct of the Departmental interview. Whilst the Tribunal accepts that the visa applicant provided some details of her purported relationship and proposed wedding to the Departmental officer at interview, it does not accept that she would be unable to provide a reasonable degree of detail regarding her impending wedding, and the circumstances of the review applicant, if their fiancée relationship was genuine at that time.

17. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised with the review applicant that the Department of Immigration file (at the bottom of folio 156) contains a note of an allegation from a community source that he has been paid a sum of money to take part in the relationship for the grant of a Partner visa to the visa applicant, that he has been living in Australia with another partner whilst sponsoring the visa applicant, and that his relationship with the visa applicant is fake and is purely a business arrangement. The Tribunal advised that this information is relevant as it tends to suggest that the relationship between the review and visa applicants’ is not that of genuine fiancés and it casts doubt upon both of their credibility. Accordingly, if the Tribunal relied upon the information it would be the reason or part of the reason to affirm the decision under review.

18. The review applicant confirmed he understood why the information is relevant to the review and the consequences of the Tribunal relying upon it. The Tribunal offered the review applicant more time to comment on or respond to the information. He chose to respond immediately. The review applicant denied the allegation and advised he is genuinely in love with the visa applicant and wants her to live with him in Australia. He denied money is part of their intention. The review applicant added that at the moment he does not have money and had to borrow money on his credit card for the visa sponsorship, thus indicating it is ‘true love’. He also advised the visa applicant is a poor person in Vietnam and would not have the money to pay him. The review applicant rejected the information. The Tribunal has carefully considered his response in its decision making process.

19. The Tribunal invited the review applicant to provide oral evidence concerning the financial aspects of the relationship. He indicated the visa applicant is poor and only manages to support herself with her work. The review applicant indicates he is supported by a Centrelink pension. He has some small savings that he can send to Vietnam if required. The review applicant has previously sent money to the visa applicant. They do not jointly own any major assets together, do not have any joint liabilities, and do not owe any legal obligations to each other. The review applicant added that he has $20,000 in credit card debt. The Tribunal drew to the review applicant’s attention that aside from some funds transfer receipts there appeared to be limited evidence in support of the financial aspects of the relationship, inviting his comment. He replied that he has sent some money to help her with expenses and nothing else.

20. The Tribunal invited the review applicant to provide oral evidence concerning the nature of the household. He indicated that he has lived with the visa applicant on all of his visits to Vietnam. They have stayed together in hotels, rented houses and at his relatives’ house in Vung Tau. The visa applicant usually resides at her parent’s house in Da Nang, with her parents being elderly. The review applicant advised he has shared housework with the visa applicant in Vietnam. The Tribunal invited the review applicant to provide oral evidence concerning the social aspects of the relationship. He advised he has performed charity work with the visa applicant, that she knows all of his relatives in his home town, and that he has been introduced to her family.

21. The Tribunal invited the review applicant to provide oral evidence concerning the nature of the persons’ commitment to each other. He indicated that he has been in a relationship with the visa applicant since 2012, they both enjoy charity work, and they love and support each other. He plans to take care of her in Australia then she can work as a hair dresser and contribute. They see their relationship as long term and they currently keep in touch by telephone. The Tribunal invited the review applicant to provide any further oral evidence he wished concerning the relationship and he advised his relationship with the visa applicant is like that of husband and wife now.

    Evidence of the visa applicant (Ms Nguyen)  

22. The evidence of the visa applicant may be summarised as follows. She met the review applicant whilst conducting charity work in Da Nang, Vietnam during 2007. They remained in contact thereafter. In 2012 the review applicant returned to Vietnam and they rented a house together. The review applicant proposed to her on 1 January 2014 and they held an engagement ceremony in Vietnam. The ceremony was like a wedding with parents, friends and relatives attending. When asked by the Tribunal to explain the arrangements for the wedding at the time of the engagement, the visa applicant advised that the review applicant would start to sponsor her and sort out the legal wedding arrangements. She indicated the review applicant wanted to marry in Australia to avoid “bureaucratic problems” such as having health checks and paying bribes.

23. The visa applicant outlined the review applicant’s past work as a fisherman and current receipt of pension. She also outlined the previous two relationships of the review applicant. The visa applicant advised that the review applicant currently resides with Thuan and his family and has done so since 2005. She is aware that the review applicant has used different names in the past. The visa applicant confirmed she currently works as a hairdresser. The visa applicant provided oral evidence regarding the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other, in similar terms to the review applicant.

1. The Tribunal raised with the visa applicant the information recorded in the Departmental file, previously outlined, concerning the limited knowledge of her wedding arrangements in Australia and also of the review applicant’s circumstances in Australia, that she displayed in the Departmental interview of 17 May 2016. The visa applicant advised that the interview took place past the date initially planned for their wedding. She told the Departmental officer that the wedding would be held at the review applicant’s house, with his close friends being invited. She also advised wedding invitations had not been sent yet due to uncertainty with the visa application. The Tribunal raised with her that this statement regarding the invitations was not included in the interview record and invited her to comment. The visa applicant responded that the Department had asked how much the wedding would cost and how many banquets there would be. It is worth pausing to reflect that the initial planned wedding date for the visa and review applicants’ was 19 June 2016, approximately one month after the conduct of the Departmental interview.

2. The Tribunal raised with the visa applicant the information recorded in the Departmental file, previously outlined, concerning the allegation that the review applicant was paid money to sponsor her for a Partner visa, he had been living with another partner in Australia, and that the relationship is fake and purely a business arrangement, inviting her comment. The visa applicant advised they were both poor people, she can barely support herself as a hairdresser, they don’t have money to fake a relationship, it is a genuine relationship, and the review applicant had actually sent her money to help her. The visa applicant concluded her evidence by indicating the relationship was genuine, she loved the review applicant and wants to come to Australia to take care of him with his health condition. The review applicant commented that the visa applicant is from the country side and is not as fluent as a city person. He confirmed he had no further oral evidence to provide.

3. The representative made oral submissions which may be summarised as follows. She asked for the ‘dob in’ material to be clarified, the Tribunal read it to her and she maintained that her clients rejected it. Additionally, the financial aspects of the relationship should be viewed in the context of the straitened circumstances of the parties, and cited the case of Bretag suggesting the relationship has developed significantly since the time of application and should be viewed favourably by the Tribunal. Credit card statements were tendered with handwritten notes referring to visa costs and these have been duly considered by the Tribunal. She submitted that the oral responses of the review and visa applicants’ with regard to the Departmental record of interview were short and that ‘not everyone can explain things well’ (including indicating the visa applicant was from the countryside), urging the Tribunal to prefer the written statements of the parties on this topic. The representative also submitted that the Departmental record of interview is not a verbatim record. When asked by the Tribunal why it should not prefer the contemporaneous record of the Departmental officer to the more recent evidence of the parties’, the representative submitted that the interview record is paraphrased and there is no tape recording of it. Her submissions contend that the relationship is genuine. The Tribunal has carefully considered the aforementioned submissions.

   Credibility Concerns

4. As outlined above, the visa applicant was interviewed by a Departmental officer in Vietnam on 17 May 2016. The record of interview indicates that she was unable to provide reasonable details of her impending wedding the next month on 19 June 2016 and of the review applicant’s circumstances at that time. The Tribunal does not accept that a lack of educational attainment, rural upbringing, nervousness or any other reason legitimately accounts for the visa applicant’s inability to provide reasonable details of matters germane to her planned wedding and relationship with the review applicant, when she was interviewed in the Vietnamese language by the Departmental officer. The record of interview reflects that the questions posed to the visa applicant were not technical in nature, nor did they require a high degree of sophistication to comprehend, rather they were questions related to basic details of the impending wedding and the review applicant’s circumstances. The visa applicant could not provide answers to these questions congruent with her having a reasonable degree of knowledge of such matters. Rather, at that time, she displayed a limited knowledge of the aforementioned matters.

5. The Tribunal accepts that no tape recording of the Departmental interview is available. However, there is no persuasive evidence before the Tribunal suggestive of the Departmental officer having inaccurately recorded the answers of the visa applicant, or of compiling a record that is incomplete. Further, there is no evidence to suggest that the Departmental officer acted other than in good faith in the performance of their duties in this regard. The review applicant, through his representative, contends that the Departmental record of interview is superficial in nature, however provides no persuasive reasons why this contemporaneous record should not be preferred to the ex post facto attempt to undermine its veracity with carefully constructed written statements and submissions.

6. The visa applicant, in her oral evidence, advised that the Departmental interview took place after the initial date of her proposed wedding to the review applicant. This is contrary to the information contained in the Departmental delegate’s decision (provided by the review applicant to the Tribunal) which indicates that the wedding was initially planned for 19 June 2016. Further, it is inconsistent with her own written statement of 30 January 2018 (jointly compiled with the review applicant who signed on 5 February 2018 and submitted it to the Tribunal, contained at folios 53-57 of the Tribunal file), noting that the wedding was initially planned in June 2016. Accordingly, the Tribunal does not accept her evidence on this point. The visa applicant also advised that the Departmental interview canvassed topics such as wedding location, invitees, invitations and costs (including banquet numbers) and that she provided such details. However, her oral evidence provided only limited detail regarding such matters. Following careful consideration, the Tribunal does not accept that the visa applicant’s oral evidence provides persuasive reasons to undermine the veracity of the Departmental record of interview. Accordingly, the Tribunal affords the oral evidence of the visa applicant limited weight with respect to the matters raised with her arising from the Departmental interview. The review applicant, in his oral response to the s.359AA information pertaining to the Departmental interview, submitted that the Department had been very difficult, and indicated he has lived with the visa applicant as husband and wife and is not sure what more he needs to provide to show the relationship is genuine. Following careful consideration, the Tribunal does not accept that his oral evidence undermines the veracity of the Departmental record of interview. On balance, the Tribunal prefers the evidence contained in the Departmental record of interview, which indicates the visa applicant was unable to provide reasonable details of her impending wedding and of the review applicant’s circumstances at that time, to the oral evidence of the review and visa applicants’ concerning these matters.

7. As outlined above, pursuant to s.359AA of the Act, the Tribunal raised with the review applicant that the Departmental file contains a note of an allegation from a community source that he has been paid a sum of money to take part in the relationship for the grant of a Partner visa to the visa applicant, that he has been living in Australia with another partner whilst sponsoring the visa applicant, and that his relationship with the visa applicant is fake and is purely a business arrangement. He denied the allegation in his response. The visa applicant also denied the allegation in her oral evidence. The Tribunal has considered these denials, and the representative’s oral submissions advancing them, very carefully. However, when the allegation is considered in conjunction with the superficial knowledge displayed by the visa applicant, of her impending wedding and the circumstances of the review applicant, on 17 May 2016 when interviewed by the Departmental officer, the Tribunal has afforded some weight to the allegation.

8. The Tribunal notes that the representative submitted copious amounts of documentation to support the visa and review applications. Further, the Tribunal notes that the representative submits the documentary evidence on behalf of the review applicant should be preferred to the oral evidence of the parties’ and the contemporaneous Departmental record of interview of 17 May 2016. Additionally, the Tribunal notes the reference to the Bretag decision advanced by the representative as authority upon which the Tribunal should rely to, in effect, overlook shortcomings in the review applicant’s case with respect to the time of the visa application. For the following reasons the Tribunal does not accept the veracity of the aforementioned documentary evidence and submissions.

9. The superficial display of knowledge by the visa applicant at her Departmental interview on 17 May 2016 is inconsistent with her being in a genuine fiancée relationship with the review applicant at that time and also at the time of application. Such interviews, when conducted appropriately, are an important safeguard of the integrity of the Australian migration program as they provide a contemporaneous record of circumstances at a more proximate time to the lodgement of the visa application than at the time of review. There is no persuasive evidence before the Tribunal that the interview was conducted inappropriately. For reasons previously expressed, the Tribunal prefers the evidence contained in the Departmental record of interview, indicating the limited display of knowledge by the visa applicant, to that submitted by the review and visa applicants’. The aforementioned aspects of the Departmental record of interview are afforded high weight by the Tribunal given the record’s characteristics and contemporaneous nature. Further, for reasons previously outlined, the Tribunal gives weight to the allegation regarding the falsity of the relationship between the review and visa applicants’. When considered in conjunction with the visa applicant’s limited display of knowledge at the Departmental interview, the Tribunal assesses the allegation of impropriety as credible and affords it high weight.

10. The Tribunal has afforded high weight to the evidence contained in the Departmental record of interview pointing to the limited display of knowledge by the visa applicant and also to the allegation of impropriety. The Tribunal has formed the view that the documentary evidence submitted in support of the visa and review applications is in furtherance of a sophisticated contrivance designed to secure a migration outcome. Accordingly, such evidence is afforded only limited weight. Following careful consideration, the Tribunal finds that the purported fiancée relationship between the review and visa applicants’ is a sham and a false relationship.

    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. The visa and review applicants’ contend that at the time of application they were to marry in Australia on 19 June 2016. For the reasons outlined above, the Tribunal does not accept that the parties’ genuinely intended to marry each at the time of application. Therefore, the Tribunal finds that the visa applicant does not satisfy the requirements in cl.300.215(a) and it follows she does not meet the requirements of cl.300.215.

    Do the parties’ genuinely intend to live together as spouses?

12. 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).

13. 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. 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.

    Circumstances of the relationship

14. The Tribunal has considered all of the circumstances of the relationship, including the following matters, in arriving at its decision concerning the intention of the review applicant and visa applicant, at the time of application and the time of decision, to live together as spouses. The Tribunal notes it is not appropriate to consider whether the parties’ are spouses at the time of application or time of decision, however considers an investigation of their intentions with regard to the definition of spouse in the legislation may assist in determining their aspirations.

    The financial aspects of the relationship

15. The Tribunal had before it documentary evidence pertaining to the financial aspects of the relationship including, but not limited to, funds transfer receipts, financial records, income records, consumer receipts and statements. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence of the review and visa applicants’ with respect to the financial aspects of the relationship. The aforementioned documentary and oral evidence is afforded some weight. The Tribunal finds that there is no joint ownership of real estate or other major assets, no joint liabilities, limited pooling of financial resources (and none with respect to major financial commitments), no legal obligations are owed between the parties’, and limited sharing of day to day household expenses took place when the parties’ were together in Vietnam. However, the evidence outlined above from the Departmental interview, and the allegation of impropriety, are afforded high weight by the Tribunal. This evidence afforded high weight points to the purported fiancée relationship being a sham and a false relationship and accordingly it is afforded higher weight than the evidence submitted in support of the financial aspects of the relationship. For completeness, the Tribunal finds that the evidence submitted in support of the financial aspects of the relationship is of a contrived nature in furtherance of attempting to legitimise the sham and false fiancée relationship.

    The nature of the household

16. The Tribunal had before it documentary evidence pertaining to the nature of the household including, but not limited to, statements, photographs, hotel receipts and Vietnamese registration documentation. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence of the review and visa applicants’ with respect to the nature of the household. The aforementioned documentary and oral evidence is afforded some weight. The Tribunal finds that there is no evidence of joint responsibility for the care and support of children, some evidence of living arrangements by way of cohabitation in Vietnam, and some evidence of the sharing of responsibility for housework. However, the evidence outlined above from the Departmental interview, and the allegation of impropriety, are afforded high weight by the Tribunal. This evidence afforded high weight points to the purported fiancée relationship being a sham and a false relationship and accordingly it is afforded higher weight than the evidence submitted in support of the nature of the household. For completeness, the Tribunal finds that the evidence submitted in support of the nature of the household is of a contrived nature in furtherance of attempting to legitimise the sham and false fiancée relationship.

    The social aspects of the relationship

17. The Tribunal had before it documentary evidence pertaining to the social aspects of the relationship including, but not limited to, statements, travel documentation, photographs, hotel receipts and Vietnamese registration documentation. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence of the review and visa applicants’ with respect to the social aspects of the relationship. The aforementioned documentary and oral evidence is afforded some weight. The Tribunal finds that there is some evidence that the parties’ represent themselves to other people as being engaged to each other, there is some evidence of family, friends and acquaintances recognising the parties’ as being engaged to each other, and there is some evidence that the parties’ have undertaken joint social activities. However, the evidence outlined above from the Departmental interview, and the allegation of impropriety, are afforded high weight by the Tribunal. This evidence afforded high weight points to the purported fiancée relationship being a sham and a false relationship and accordingly it is afforded higher weight than the evidence submitted in support of the social aspects of the relationship. For completeness, the Tribunal finds that the evidence submitted in support of the social aspects of the relationship is of a contrived nature in furtherance of attempting to legitimise the sham and false fiancée relationship.

    The nature of the persons’ commitment to each other

18. The Tribunal had before it documentary evidence pertaining to the nature of the persons’ commitment to each other including, but not limited to, message logs, telephone accounts, Notices of Intended Marriage, statements, travel documentation, photographs, hotel receipts, Vietnamese registration documentation, greeting cards and correspondence between the parties’. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence of the review and visa applicants’ with respect to the nature of the persons’ commitment to each other. The aforementioned documentary and oral evidence is afforded some weight. The Tribunal finds that there is some evidence that the parties’ have represented themselves as being in a relationship with each other since March 2012, there is some evidence that they have cohabitated together during the review applicant’s visits to Vietnam, there is some evidence that they draw some degree of companionship and emotional support from each other, and there is some evidence that the parties’ see the relationship as a long term one. However, the evidence outlined above from the Departmental interview, and the allegation of impropriety, are afforded high weight by the Tribunal. This evidence afforded high weight points to the purported fiancée relationship being a sham and a false relationship and accordingly it is afforded higher weight than the evidence submitted in support of the nature of the persons’ commitment to each other. For completeness, the Tribunal finds that the evidence submitted in support of the nature of the persons’ commitment to each other is of a contrived nature in furtherance of attempting to legitimise the sham and false fiancée relationship.

    Conclusion concerning the intention of the review applicant and visa applicant to live together as spouses

1. Following consideration of the documentary and oral evidence described above, the Tribunal considers that the fiancée relationship between the review and visa applicants’ is a sham and a false relationship designed to secure a migration outcome. For reasons previously expressed, the Tribunal affords high weight to the evidence contained in the Departmental record of interview which indicates the visa applicant was unable to provide reasonable details of her impending wedding and of the review applicant’s circumstances at that time, and also to the allegation of impropriety. On balance, the Tribunal prefers this evidence to that submitted in support of the review applicant’s contentions. Therefore, the Tribunal finds that at the time of application the parties’ did not genuinely intend to live together as spouses. Accordingly, the visa applicant does not meet the requirements in cl.300.216.

   Do the parties’ continue to meet time of application requirements?

2. 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, the 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.

3. Having regard to the matters outlined above, the Tribunal finds that at the time of application the parties’ did not genuinely intend to marry or to live together as spouses, and therefore the requirements of cl.300.215 and cl.300.216 are not satisfied by the visa applicant. It follows that the visa applicant does not satisfy the requirements of cl.300.221.

4. For the reasons above, the Tribunal finds that the visa applicant does not satisfy the criteria for the grant of the visa.

   DECISION

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

   K. Chapman
   Member