1502338 (Migration) [2016] AATA 3583 (18 March 2016)

Last Updated: 11 April 2016

1502338 (Migration) [2016] AATA 3583 (18 March 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Mr Sau Le

VISA APPLICANTS: Mrs Thi Thien Trang Do
Mr Phuc Thien An Nguyen

CASE NUMBER: 1502338

DIBP REFERENCE(S): OSF2014/026577

MEMBER: Lisa Lo Piccolo

DATE: 18 March 2016

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

• cl. cl.300.211 of Schedule 2 to the Regulations;
• cl.300.214 of Schedule 2 to the Regulations;
• 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 18 March 2016 at 9:13am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).
2. The visa applicants applied for the visas on 25 April 2014. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.300.211.
3. The delegate refused to grant the visas on 6 January 2015 on the basis that the first named visa applicant did not satisfy cl.300.216 or cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant and review applicant intend to live together in a genuine long term relationship. A copy of the delegate’s decision was provided to the Tribunal by the review applicant.
4. The review applicant appeared before the Tribunal on 17 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese 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 parties genuinely 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. The Tribunal has had regard to a certified copy of a Certificate of Australian Citizenship in the name of Sau Le. Accordingly, the Tribunal accepts that at the time of application the review applicant was an Australian citizen.
8. The Tribunal has also had regard to a letter dated 5 February 2014 from Mr Ngan Van Nguyen, a marriage celebrant. The Tribunal accepts that the parties had engaged a marriage celebrant and were intending to have their marriage legally solemnised in Melbourne on 4 August 2015. Accordingly, the Tribunal finds that the requirements of cl.300.211 are met.

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

9. Cl. 300.214 requires that at the time of application the parties have met and are known to each other personally. This requires the parties to have come together in each other’s company or physical presence: MIAC v Yucesan [2008] FCAFC 110; (2008) 169 FCR 202.
10. Based on the documentary evidence provided to the Department of Immigration, and additional documentation received by the Tribunal from the parties, including photographs and travel itineraries, the Tribunal is satisfied the parties have met and were known to each other personally before the visa application was lodged. Accordingly, the Tribunal finds that the requirements of cl.300.214 are met.

Do the parties genuinely intend to marry?

11. Cl. 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. Based on the oral evidence of the visa applicant and the review applicant, the Tribunal accepts that the parties were engaged on 21 January 2014. The Tribunal acknowledges the concerns of the delegate regarding the rapid development of the relationship, and the fact that the visa applicant and the review applicant had only spent a short period together.
12. The Tribunal accepts the parties’ consistent evidence that the review applicant and the visa applicant have spent approximately 6 weeks since the review applicant’s first trip on 27 November 2013. The Tribunal acknowledges that they have spent a further month together since the delegate’s decision. The Tribunal accepts that the parties have spent considerable time with the visa applicant’s family.
13. The Tribunal extensively discussed with the visa applicant the reasons why his family did not participate in the engagement party and why his family members are not aware of his relationship with the visa applicant. The Tribunal accepts the review applicant’s detailed explanation that he has experienced significant dramas in his past relationships as a result of his sisters becoming involved. He said that he was wary of this happening again which is why he decided not to involve them at all in his relationship until after he is married. He said that his sisters in Vietnam are particularly troublesome and he really does prefer to avoid the bother. The visa applicant gave consistent evidence regarding this issue although she did admit to meet 3 nephews and one sister in Saigon. In relation to the review applicant’s son, the Tribunal accepts the review applicant’s decision not to tell his son until the visa process is finalised and the visa applicant is coming to Australia. He said his son is not keen on him remarrying and has a number of hang ups connected to his mother walking out on him when he was young. He said that he will tell him when the time is right. The visa applicant was aware of this and supported the review applicant’s decision.
14. After discussing the delegate’s concerns with the visa applicant and the review applicant, the Tribunal does not share the concerns of the delegate. The Tribunal has also had regard to correspondence from the marriage celebrant as well as the parties’ evidence regarding their wedding plans in Australia. The Tribunal accepts that the parties had made all necessary arrangements with the marriage celebrant to have their marriage legally solemnised in Melbourne. The Tribunal also accepts the review applicant’s evidence that he has changed the proposed date of marriage since that time after their first notice of intention to marry expired and the visa was not granted. The parties’ consistent evidence is that they intend to marry as soon as they can. They were also both aware of the requirement to marry within 9 months after the visa applicant first enters Australia and the fact that the Department will require a new Notice of Intention to Marry. The Tribunal finds that 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?

15. 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). 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). Whilst 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.
16. The Tribunal has had regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention.

Financial aspects of the relationship

17. The Tribunal accepts from the parties consistent oral evidence at hearing (supported in part by documentary evidence) submitted that the review applicant gave the visa applicant $5000 to repair her house and has been sending her money every month. The couple have no joint assets or liabilities at any time. However the Tribunal notes that as the visa applicant is overseas there is no real possibility of joint assets or sharing of daily household expenses at this stage. The Tribunal also notes from the documentary evidence that the visa applicant is employed in Ho Chi Minh city and is receiving a regular income. On the other hand, the review applicant closed his jewellery business in December 2014 and receives a disability pension as a result of his back and neck problems.
18. The parties gave consistent evidence that the review applicant has a house in Sunshine and the visa applicant a property in Ho Chi Minh City. Both were consistent that the visa applicant would sell her property in Vietnam if she comes to Australia and the money would be contributed to the relationship, including possibly towards opening a business.
19. The Tribunal places some weight on the financial aspect of the relationship.

Nature of the household

20. The Tribunal accepts that the review applicant had spent time with the visa applicant in Vietnam. The applicants gave consistent evidence of the amount of time that they spent together on each occasion, and the way that they spent their time together. The Tribunal has also had regard to a number of photographs of time spent together in Vietnam.
21. The visa applicant also submitted copies of receipts in joint names for stays at Uyen Anh Hotel and Thien Xuan Hotel. The consistent evidence of the parties was that the review applicant stayed at the visa applicant’s house in Govap, Ho Chi Minh city in his visit in 2015.
22. In any case, as the visa applicant and the review applicant are currently unable to have a household, this factor has been given less weight in the consideration.

Social aspects of the relationship

23. The Tribunal has had regard to the documentary evidence provided to the Department, and the Tribunal, that the parties present themselves as being engaged to marry to each other. The Tribunal has also had regard to the statutory declaration submitted by the visa applicant’s sister and the review applicant’s friend. The parties gave consistent evidence that they have undertaken social activities together in the company of the visa applicant’s family and friends and that in the opinion of their families and friends of the visa applicant they are widely considered the fiancé of each other both at the time of the application and the time of the decision.
24. The Tribunal raised with the parties the delegate’s concerns regarding the absence of the review applicant’s family from the engagement, and whether the review applicant’s family in Vietnam and Australia are aware of an support the relationship. The review applicant told the Tribunal that he has not told his siblings about his relationship because he does not want them to know. He told the Tribunal that he has had significant issues in the past with his sisters involving themselves in his relationships and that this was a major cause of his previous relationship breakdown. He said all of his siblings live in Vietnam except one brother in Vietnam. He said he is very apprehensive of involving his family in this relationship because of his past experience. He said he will tell them about the marriage once the visa applicant is in Australia. When the Tribunal raised this issue with the visa applicant, she too told the Tribunal that despite her request in meeting and socialising with the review applicant’s siblings, the review applicant was not interested in them being aware of or participating in their relationship at this stage.
25. The visa applicant was also aware that the review applicant’s son had not been informed about his father’s relationship with her. The review applicant told the Tribunal that his son is very insecure about him remarrying because he has suffered a lot as a result of his mother abandoning him when he was young and is scared to lose him. He said he did not want him to endure the stress involved in the visa process and will tell him when he knows that this process is nearing completion.
26. Whilst the Tribunal acknowledges that it is unusual for the review applicant’s family to have no knowledge of his relationship, the Tribunal accepts the review applicant’s evidence about these issues. The Tribunal accepts that the parties have discussed the review applicant’s decision and the visa applicant supports his decision. For this reason, the Tribunal does not place any adverse weight on the absence of the review applicant’s family from the engagement or the fact that they are not aware of the relationship.
27. The Tribunal places limited weight on the social recognition of the relationship.

Nature of the parties’ commitment to one another

28. The Tribunal is satisfied that the parties’ have met and spent time together. The Tribunal accepts that the parties have maintained regular contact, by telephone and other means since they met, for which there is some documentary evidence both for the time of application and the time of decision.
29. Noting the concerns of the delegate, the Tribunal questioned the parties the limited time they have spent together face to face, and the reasons why the review applicant did not travel to Vietnam between 2011 and 2014. The Tribunal accepts that there were a number of reasons for the review applicant not travelling to Vietnam including the fact that he was the sole proprietor of a jewellery store. He said that he had one part time employee which meant in his absence he would have to close the shop whenever he went to Vietnam and since the store was trading poorly already he could not afford to do that. The Tribunal also accepts that his son has resided with him since he was very young, and with limited friends and family in Australia, he was unable to travel to Vietnam and leave him alone. Considering all of the evidence cumulatively, the Tribunal does not share the concerns of the delegate.
30. The review applicant and the visa applicant were open and honest in their evidence. They openly talked about their families, their lives, their pasts and their future. They talked about the somewhat uncanny way they met and how they developed an emotional attachment to each other and how their relationship has gone from strength to strength. They presented as a couple very committed to having a future together. Both parties showed a genuine level of concern for each other’s welfare, life and future. The Tribunal is satisfied that they demonstrated a knowledge of each other’s lives and plans for the future that are commensurate with a couple who intend to live together as spouses.
31. The Tribunal is also satisfied from the oral and documentary evidence that the parties have plans to marry in Australia as soon as the visa applicant enters Australia.
32. The Tribunal accepts from the oral evidence that the parties’ see their relationship as long-term and that they both derive a significant degree of companionship and emotional support from each other.
33. The Tribunal has taken into account the parties’ respective ages, backgrounds and life experience, and accepts that neither party was in a relationship with any third party at the time of the application, or that this is the case at the time of this decision.
34. Having considered all the evidence, the Tribunal finds that at the time of application the parties did have a genuine intention to live together as spouses, and therefore cl.300.216 is met.

Do the parties continue to meet time of application requirements?

35. Cl. 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.
36. The Tribunal finds that the review applicant continues to be an Australian citizen at the time of decision, and is satisfied that the visa applicant intends to marry an Australian citizen. The Tribunal has had regard to the consistent oral evidence of the parties that their marriage will take place as soon after the visa applicant arrives in Australia as is reasonably practicable. The Tribunal is satisfied that they have a wedding celebrant who has been engaged to perform their marriage ceremony. Therefore cl.300.211 continues to be met at time of decision.
37. The Tribunal is satisfied that the parties have met and are known to each other personally. The Tribunal is satisfied that cl.300.214 continues to be met at the time of decision.
38. The Tribunal is also satisfied by oral evidence by the parties at hearing that since the delegate’s decision, they continue to make preparations for their marriage in Australia. The parties are aware of the requirement that they marry within the visa period and have demonstrated at hearing that they have a shared understanding in this regard.
39. The Tribunal is satisfied therefore that the parties continue to have a genuine intention to marry and that that marriage is intended to occur within the visa period, and finds that cl.300.215 continues to be met at time of decision.
40. Based on the evidence discussed above, the Tribunal finds that the parties continue to have a genuine intention to live together as spouses, and finds therefore that cl.300.216 continues to be met at time of decision.
41. Given the findings above, the Tribunal finds that the visa applicant continues to satisfy
    cl.300.211, cl.300.214, cl.300.215 and cl.300.216 at the time of its decision and 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.
43. As the second named visa applicant applied on the basis of being a member of the first named visa applicant's family unit, that application will be determined by reference to the outcome of the first named visa applicant's application on remittal to the Department for reconsideration.

DECISION

44. 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 of Schedule 2 to the Regulations;
    • cl.300.214 of Schedule 2 to the Regulations;
    • 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.

Lisa Lo Piccolo
Member