Vu (Migration)

[2024] AATA 159

Vu (Migration) [2024] AATA 159 (31 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ai Thuy Vu

VISA APPLICANT:  Mr Thanh Tung Vo

REPRESENTATIVE:  Mrs Hanh Thi Bich Ho (MARN: 1467192)

CASE NUMBER:  1909726

HOME AFFAIRS REFERENCE:               BCC2018/2362462

MEMBER:Glynis Bartley

DATE:31 January 2024

PLACE OF DECISION:  Sydney

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 and cl.300.221 of Schedule 2 to the Regulations

Statement made on 31 January 2024 at 5:15pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry – known to each other personally – communication about each other’s families – review applicant’s visits to Vietnam – companionship and emotional support – pooled financial resources – joint family events and travel – decision under review remitted       

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this case is whether the visa applicant, Mr Thanh Tung Vo, and the review applicant, Mrs Ai Thuy Vu, genuinely intend to marry and live together as spouses, both at the time the visa application was lodged and at the time of this decision.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs 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).

3. The visa applicant applied for the visa on 1 June 2018. 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 whether the visa applicant and review applicant (the parties) genuinely intended to marry and live together as spouses at the time of application, and also have that intention at the time of decision.

4. The delegate refused to grant the visa on 14 March 2019 on the basis that the visa applicant did not meet cl.300.215, cl.300.216 or cl.300.221 of Schedule 2 to the Regulations. The delegate was not satisfied that the parties genuinely intended to marry and live together as spouses, as defined in s 5F of the Act.

5. On 18 April 2019, the review applicant applied to the Tribunal for review of the decision.

6. The review applicant appeared before the Tribunal on 24 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the visa applicant and the review applicant’s youngest son, Mr Kha Tran. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese language.

7. The review applicant was represented in relation to the review by her registered migration agent who attended the hearing.

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

   BACKGROUND

9. The review applicant is a 54-year-old Australian citizen by grant. She has declared two previous marriages that ended in divorce. The review applicant migrated to Australia from Vietnam in 2010 after being sponsored by a former husband. She has four adult children from her first marriage. One daughter died when aged seven years. The review applicant’s father is deceased. Her mother and six siblings live in Vietnam.  The review applicant receives a disability support pension and lives in the Illawarra region with her eldest son, his family and other members of the extended family.

10. The visa applicant is a 55-year-old citizen of Vietnam. He has declared one previous marriage that ended in divorce. The visa applicant has two adult children from that relationship. He is not currently employed but has previously worked as a tailor and a baker.  The visa applicant lives in his own home in Phu Quoc with his son. The visa applicant’s mother is deceased. His father lives in the United States of America. The visa applicant has one sister living in Brisbane and four sisters living in Vietnam.

11. The parties stated in the application that they met randomly on Facebook in January 2017 after the visa applicant sent a friend request. They began communicating and formed a friendship. They first met in person in Vietnam in early July 2017 at a hospital after the review applicant was admitted during a holiday there due to a sinus infection. They became engaged on 26 July 2017 and held an engagement celebration in Vietnam on 8 April 2018.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at the hearing. I also had regard to the documents received after the hearing, including a statement by the review applicant’s youngest son.

13. I had the benefit of receiving substantially more evidence than the delegate. It has been more than five years since the visa applicant applied for the visa and more than four years since the review applicant lodged her application to the Tribunal.

14. The parties’ oral evidence was generally consistent and coherent. Although the review applicant’s son was not put forward as a witness, I considered it would be beneficial to take oral evidence from him. The review applicant’s son was serving customers in a bakery so had limited time to speak. His evidence was given in an open and spontaneous manner, and I considered it reliable. I accepted that the parties met online in 2017 and in person later that year. I was not persuaded that they met randomly on Facebook as they claimed and considered it more likely that they were introduced. I had some concerns about the rapid inception of the relationship, particularly as both parties had previously been divorced. Nonetheless, I accepted that they committed to marriage in July 2017 as claimed and celebrated their engagement in Vietnam in April 2018.

    Relevant law

15. Clause 300.221 requires that, at the time of decision, the visa applicant continues to satisfy the criteria in clauses 300.211, 300.214, 300.215 and 300.216. Those 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.

    Does the visa applicant intend to marry an eligible person?

16. 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.

17. The parties gave consistent oral evidence that they plan to marry in Australia on the review applicant’s birthday in April 2024, if the visa is granted. They will invite their immediate families but have few friends in Australia. There would probably be less than 20 people in attendance. The parties noted that they have both been married before, so they would prefer to avoid an extravagant celebration. They will hold the event at the review applicant’s home.

18. The parties’ oral evidence about their intentions regarding their marriage impressed me as sincere.

19. I was satisfied that at the time of application the visa applicant intended to marry the review applicant, 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?

20. 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.

21. The review applicant’s representative provided photographs of the parties together in Vietnam. I accepted that they first met in person in July 2017, as claimed. Copies of their passports provided to the Department confirm that they were both over the age of 18 years when they first met. There is no dispute and I find that the parties 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?

22. 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.

23. The parties gave persuasive oral evidence that they intend to marry in Australia on the review applicant’s birthday. Their original plans for the marriage could not proceed because the application was refused.

24. The parties gave consistent oral evidence regarding the frequency and nature of their communication with one another. The review applicant’s representative provided copies of text messages and phone records to corroborate their claims. The parties demonstrated a comprehensive knowledge about each other’s families, daily routines and incomes at the hearing. I accepted that they communicate most days. They presented at the hearing as being genuinely committed to the relationship. They have supported each other during the lengthy visa process, including during the COVID-19 pandemic and associated travel restrictions. The review applicant has visited the visa applicant in Vietnam on three occasions since their engagement, most recently in December 2022. She gave persuasive oral evidence that she has not returned to Vietnam since that time due to her health problems, including chronic headaches. The Tribunal was provided with a number of medical reports which confirmed that the review applicant has a range of physical and psychological conditions, including anxiety and depression.

25. During the hearing the parties expressed a desire to spend the rest of their lives together.  I accepted that they provide one another with companionship and emotional support. They have transferred some money to each other for gifts. As both have independent sources of income or savings, there is no need to provide one another with financial support.

26. I was satisfied that at the time of application the parties had a genuine intention to marry. The requirements of cl.300.215(a) are therefore met. The proposed date for the marriage is within the visa period as required by cl.300.215(b). Accordingly, the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together?

27. 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 reg 1.15A(3) for spousal relationships: reg 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.

28. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, I make the following findings.

29. I was satisfied that at the time of application the parties had transferred some money to each other as gifts. They provided receipts to corroborate their evidence. I accepted that the parties pooled their financial resources and shared day-to-day expenditure during periods that the review applicant was staying in Vietnam. The parties demonstrated a thorough knowledge of each other’s finances at the hearing. I was satisfied that they have discussed their financial future together.

30. I find that the parties maintained regular telephone and electronic contact at the time of application and held themselves out to their families, friends and the broader community as being in a committed relationship. I accept that they enjoy eating out at restaurants and going to the beach together.

31. The parties gave consistent oral evidence regarding their engagement celebration in Vietnam on 8 April 2018. I accepted that various relatives, including the review applicant’s elderly mother, attended the event. The visa applicant does not have contact with his daughter as a consequence of his divorce. His son could not attend the celebration as he was unable to get leave from his employment in the armed forces.

32. The review applicant’s youngest son gave oral evidence at the hearing and confirmed that the parties are in a committed and loving relationship. The parties attended his wedding together in Vietnam in December 2022 and introduced the visa applicant as the review applicant’s future husband, including to the bride’s parents. There were around 400 people at that celebration. Photographs provided prior to the hearing show the parties at the wedding of the review applicant’s youngest son. The visa applicant’s son was also present at the event. I accepted that the parties’ relationship is socially recognised and supported by their families.

33. At the time of application, the parties had been on holidays together to various locations in Vietnam, as well as to Singapore and Malaysia to celebrate their engagement. They stay together at the visa applicant’s home whenever the review applicant is visiting Vietnam. The parties gave generally consistent oral evidence that they share domestic chores, including cooking and cleaning, whenever the review applicant is in Vietnam.  

34. The parties gave a consistent account of their intention to establish a joint household in Australia. The review applicant will move into the review applicant’s home if his visa is granted. While there are numerous family members sharing the home, it is a large property with sufficient space for the review applicant. The parties plan to find their own home and live separately when they can afford to do so.  I was satisfied that the parties’ evidence regarding the establishment of a joint household in Australia reflects their intention at the time of application.

35. I was persuaded that the parties have been in a committed relationship for around six and a half years. They have visited the graves of the review applicant’s daughter and father in Vietnam together, as evidenced by the photographs provided. There was persuasive evidence that the parties have had meaningful conversations about their plans for their future in Australia, including that the visa applicant will begin working in the review applicant’s eldest son’s bakery business. The visa applicant has undertaken courses in baking to prepare him for his future role. The visa applicant will retain his home in Vietnam for the time being as his son wishes to continue living there. I accepted that the visa applicant offers emotional support and encouragement to the review applicant to assist her manage her various health problems. I placed considerable weight on the length of the parties’ relationship to date.

36. After considering all of the evidence before me, I was satisfied that the parties do genuinely intend to live together as spouses. I was satisfied that the parties’ relationship is genuine and continuing and they have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The parties intend to live together in the Illawarra region in a home owned by the review applicant’s eldest son. Numerous other family members live in the household, including four of the review applicant’s grandchildren.

37. On the basis of the above, I was satisfied that at the time of the visa application the parties genuinely intended to live together as spouses. Therefore cl.300.216 is met.

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

38. 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.

39. The parties gave a consistent account of the nature of their relationship and their long-term commitment to one another. I accepted that they have disclosed the relationship to their families, friends and the wider community. The parties attended the review applicant’s youngest son’s wedding in Vietnam together in late 2022. There were a large number of guests at the wedding, and I accepted that the parties introduced themselves to others as being an engaged couple.

40. The parties demonstrated considerable knowledge about each other’s families at the hearing. For example, the visa applicant was aware of the gender and ages of the review applicant’s six grandchildren. The parties knew the details of each other’s parents, siblings and children. They were aware of each other’s sources of income. The visa applicant also demonstrated knowledge about the review applicant’s health problems.

41. After having regard to the oral evidence at the hearing, the parties’ regular contact and their consistent plans for the future, I was satisfied that at the time of this decision the visa applicant intends to marry the review applicant, who is an Australian citizen, the parties have met and are known to each other personally, and they genuinely intend to marry. Furthermore, I was satisfied that the marriage is intended to take place within the visa period and therefore the visa applicant continues to meet cl.300.215(b) at the time of decision. I was also satisfied that the parties genuinely intend to live together as spouses. Accordingly, cl.300.221 is met.

42. 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

43. 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 and cl.300.221 of Schedule 2 to the Regulations

    Glynis Bartley
    Member