Yang (Migration)

[2017] AATA 1856

Yang (Migration) [2017] AATA 1856 (4 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Sia Yang

VISA APPLICANT:  Mr Khamxay Yablongthor

CASE NUMBER:  1617509

DIBP REFERENCE(S):  OSF2015/071696

MEMBER:K. Chapman

DATE:4 October 2017

PLACE OF DECISION:  Brisbane

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.300.215 of Schedule 2 to the Regulations;

·cl.300.216 of Schedule 2 to the Regulations; and

·cl.300.221 of Schedule 2 to the Regulations.

Statement made on 04 October 2017 at 12:25pm

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Genuine intention to marry – Genuine intention to live together – Continuing relationship

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, Schedule 2, cl 300.211, 300.215, 300.216, 300.221

CASES

Jayasinghe v MIMA [2006] FCA 1700

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, Mr Khamxay Yablongthor, applied for the visa on 17 July 2015. This application was sponsored by his fiancé, Miss Sia Yang (the ‘review applicant’ and sponsor). 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, cl.300.216, and cl.300.221.

3. The delegate refused to grant the visa on 20 September 2016 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 21 October 2016, the review applicant applied to the Tribunal for review of the visa refusal decision. She provided a copy of the delegate’s decision to the Tribunal with her application for review.

4. On 1 August 2017, the Tribunal wrote to the review applicant through her registered migration agent pursuant to subsection 359(2) of the Act, inviting her to provide further information in support of her claims that she and the visa applicant genuinely intend to marry and live together as spouses, and that they have met and are known to each other personally. In response, on 15 August 2017 the Tribunal received voluminous correspondence including detailed submissions, letter from a marriage celebrant, Notice of Intended Marriage, financial documentation, travel documentation, taxation records, consumer receipts, real property documentation, telephone records, utility accounts, rates notices, photographs, third party statements in support of the relationship, statements from the parties, and internet message logs. The aforementioned material has been duly considered by the Tribunal.

5. The review applicant appeared before the Tribunal on 21 September 2017 to give evidence and present arguments. She was assisted by her registered migration agent. The Tribunal also received oral evidence by telephone from the visa applicant who was located in Laos. Additionally, the Tribunal received oral evidence in person from the review applicant’s father, Mr Neng Yang, and from her sister, Miss See Yang. The Tribunal hearing was conducted with the assistance of an interpreter in the Lao and English languages.

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

   BACKGROUND

7. Miss Yang, the review applicant and sponsor, is a 30 year old Australian citizen who is employed as a Registered Nurse. Mr Yablongthor, the visa applicant, is a 29 year old national of Laos who has completed studies in law. According to the visa application and material in support, the visa applicant first met the review applicant in person at a Hmong festival during December 2012 when the latter was visiting Laos with her family. They remained in regular contact following that visit. The review applicant’s next trip to Laos was delayed considerably by the death of her grandmother in Australia and the ensuing cultural requirements in relation to an extended period of mourning, which included a visit by her to the United States in 2014 to grieve with other family members. The review applicant was next able to visit Laos in 2015 and she became engaged to the visa applicant there on 22 April 2015. Members of both families attended the engagement ceremony. The couple lodged the application for the Prospective Marriage visa on 17 July 2015. Originally they planned to marry in Australia on 6 May 2016, however they postponed their plans having not received a decision on the visa application by that time. The review applicant again visited the visa applicant in Laos during February 2017 and they holidayed together in Thailand during April 2017. They remain engaged to each other and now plan to marry on 14 April 2018 in Australia.

   ISSUES AND LAW

8. 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 a genuine intention to marry each other within the visa period, and 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

9. In assessing whether the visa applicant and the review applicant have the required intentions in relation to marrying each other within the visa period and living together as spouses, the Tribunal has considered the documentary evidence submitted with the primary application, additional documentary evidence that was provided to the Tribunal and the oral evidence given during the review hearing. Having regard to the principles outlined in the decision of Jayasinghe v MIMA [2006] FCA 1700, when considering the circumstances of the relationship at the time of the visa application, the Tribunal has had regard to later events as they tend logically to show the existence of prior facts. The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Immigration and then furnished the Tribunal with more extensive evidence that was unavailable to the primary decision maker.

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 review applicant contained in both the Departmental and Tribunal files included, but was not limited to, Notices of Intended Marriage, financial documentation, travel documentation, taxation records, consumer receipts, real property documentation, telephone records, utility accounts, rates notices, photographs, third party statements in support of the relationship, statements from the parties, and internet message logs. The Tribunal notes that the ultimate volume of documentary evidence in support of the relationship was substantial and compelling in nature, particularly when considered in conjunction with the oral evidence received at the review hearing.  

    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. Having regard to the Notice of Intended Marriage dated 1 July 2015, a letter of same date from marriage celebrant Ms Fiona Robertson, and the oral evidence at the review hearing (which will be referred to in greater detail below), the Tribunal is satisfied that the parties had a genuine intention, at the time of the visa application, to be married on 6 May 2016. That proposed date for marriage was within the required visa period. Accordingly, the Tribunal finds that the visa applicant meets all of the requirements contained in 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 husband and wife 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 whether the visa and review applicants’ genuinely intend to live together as spouses. 

    Financial aspects of the relationship

15. The oral evidence of the review and visa applicants’ was consistent regarding the financial aspects of their relationship. They have shared expenses when in each other’s company in 2015 and 2017. The couple talked extensively to each other in relation to the purchase of a house by the review applicant in Australia. They consider the property as jointly owned, although it is not legally so due to banking restrictions faced by the visa applicant who lives offshore. Further, the review applicant attempted to establish a joint bank account with the visa applicant in Australia, but could not do so as he resides in Laos. It is proposed the visa applicant will contribute to repayment of the home loan when he is established in Australia. The couple agreed that they do not legally own any significant assets together, but will do so when they are residing together permanently. The Tribunal has paid due regard to the fact that the visa and review applicants’ live in separate countries and have had less opportunity to combine their finances than if they were living together on an ongoing basis. On balance, the Tribunal affords medium weight to the evidence in support of the financial aspects of the relationship.

    Nature of the Household

16. The Tribunal notes that the parties’ reside in different countries and therefore it is not unexpected for there to be limitations regarding evidence concerning the nature of the household. The visa and review applicants’ provided consistent oral evidence to the Tribunal concerning the formation of a joint household during the latter’s visits to Laos in 2015 and 2017. The Tribunal notes also that the parties stayed together during their visit to Thailand in April 2017. Travel itineraries, photographs and social media records corroborate the oral evidence of the parties’ concerning these matters. The Tribunal accepts that the couple have lived together for these limited periods following their engagement. After careful consideration, the Tribunal affords the evidence in support of the nature of the household medium weight.

    Social aspects of the relationship

17. Extensive documentary evidence such as photographs, third party statements and social media records demonstrate that the review and visa applicants’ are known as an engaged couple among a wide circle of family and friends. The Tribunal notes that the parties gave consistent oral evidence indicating they did not believe it was necessary to photograph their engagement ceremony in 2015 and they chose to take formal photographs after the event. The Tribunal accepts this evidence. Further, the oral evidence of the parties was suggestive of the full support of their respective families being offered in relation to their engagement. The oral evidence of Mr Meng Yang and Miss See Yang, who were both present when the couple met each other in 2012 and for their engagement ceremony in 2015, corroborated the accounts of the visa and review applicants’. Indeed, Miss See Yang was also present during the February 2017 visit to Laos by the review applicant and confirmed that the couple stayed with each other during this time. Both Mr Yang and Miss Yang also informed the Tribunal that the families of the parties had met each other and were well aware of their relationship.

18. The visa and review applicants’ gave oral evidence confirming they had been in each other’s presence in Laos during 2012, 2015 and 2017 during which times they engaged in social activities such as visiting markets and shopping. They explained that in April 2017 they holidayed in Thailand together as it was one of the few destinations the visa applicant could travel to. During that holiday they visited temples, went shopping and attended movies together. The Tribunal was particularly impressed with the oral evidence of all of the witnesses given its consistency and candour in delivery. It is clear to the Tribunal that the visa and review applicants’ met each other in person as adults and are known to each other personally. Following careful consideration, the Tribunal affords the evidence in support of the social aspects of the relationship high weight.

    Nature of the persons’ commitment to each other

19. The documentary and oral evidence before the Tribunal confirms the visa and review applicants’ met each other in 2012, remained in continuous contact whilst being separated by geography, became engaged in April 2015, and were together as a couple in the same location during the review applicant’s overseas visits in 2017. Of particular note, the review applicant gave oral evidence indicating the visa applicant was very supportive to her during the period of mourning between 2013 and 2014 resulting from her grandmother’s passing. Further, the oral evidence of the parties was suggestive of them sticking together through a difficult period of separation following refusal of the Prospective Marriage visa. Having had the benefit of taking the evidence of the visa and review applicants’, and the other two witnesses, the Tribunal is satisfied that they were truthful persons and that the parties have a genuine commitment to each other. It is quite apparent that the visa and review applicants’ derive companionship and emotional support from each other. After careful consideration, the Tribunal affords the evidence in support of the nature of the persons’ commitment to each other high weight. On the basis of the aforementioned, the Tribunal is satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore the requirements of cl.300.216 are satisfied.

    Do the parties continue to meet time of application requirements?

20. 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. The documentary evidence before the Tribunal, including that from marriage celebrant Ms Fiona Robertson, indicates that the parties will be married on 14 April 2018 in Australia. For the reasons expressed above, the Tribunal is satisfied that the parties maintain the intention to be married to each other during the visa period and will be so married on 14 April 2018. Additionally, the Tribunal is satisfied that the parties genuinely intend to live together as spouses. It is clear that they have met in person as adults and are known to each other personally. Accordingly, the requirements of cl.300.221 are satisfied.

    CONCLUSION

21. The Tribunal was impressed with the manner in which the visa and review applicants’, and the other two witnesses, gave their evidence. Accordingly, the Tribunal is satisfied with the veracity of the fiancé relationship between the parties. 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

22. 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.300.215 of Schedule 2 to the Regulations;

    ·cl.300.216 of Schedule 2 to the Regulations; and

    ·cl.300.221 of Schedule 2 to the Regulations.

    K. Chapman
    Member