Minister for Immigration, Local Government and Ethnic Affairs v Dhillon

The Migration Act 1958 (the Act) entitles a visa applicant to be granted a visa or an entry permit if he or she satisfies each of the criteria set out in the regulations in relation to the relevant visa or entry permit.

The Applicant is entitled to seek review of the primary decision under subregulation 36(4) of the Migration (Review) (1993) Regulations.

The criteria relevant to a Class 100 (spouse ) visa are set out in Part 100 of Schedule 2 to the Migration (1993) Regulations (the Regulations).

Subclause 100.321(2) requires at the time of application that the applicant is the spouse of an Australian citizen or permanent resident.

(a) a person who has entered into a marriage recognised as valid for the purposes of the Act, if :

(i) the marriage has not been ended by divorce or the death of one of the parties; and

(ii) the parties are not living separately and apart on a permanent basis; or

Clause 100.333 requires that at the time of the decision, the marital relationship between the applicant and the applicant's spouse is genuine and continuing.

In assessing the question of what is a genuine and continuing spouse relationship the Tribunal is guided by the case of Minister for Immigration and Ethnic Affairs v Dhillon (8 May 1990, unreported), where the Full Court in determining whether a marriage was genuine stated:

The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.

The following is a chronological account of the background to this application.

The Principal and the Applicant first met in English classes in Vietnam in 1985. A relationship developed and continued for the next two years. The couple wanted to marry but the Applicant's family did not approve of the relationship and the couple did not have the money to establish themselves without their parents' support.

The Applicant decided to escape from Vietnam in 1988 but did not inform the Principal.

She spent 11 months in a refugee camp in Malaysia before arriving in Australia in May 1989.

At a wedding in Melbourne in late 1992 the Applicant recognised the sister of the Principal and obtained his address in Vietnam. The Applicant subsequently wrote to the Principal and recommenced their relationship.

The Applicant visited Vietnam in March 1993 to meet the Principal. They were married on 20 March 1993. The Principal subsequently lodged an application for a spouse visa on 23 April 1993.

Evidence of written correspondence and phone calls between the Applicant and Principal were provided to the Department as was documentation of the marriage and photos of the wedding.

In refusing to grant a visa to the Principal, concerns raised by the Department included:

1. a confused and unconvincing account as to the events leading to the marriage including their chance meeting in Vietnam in 1993

2. discrepancies in the accounts given by the Applicant and the Principal as to the background of the relationship including when phone calls had been made.

The Applicant appealed to MIRO for review of the Department decision on 19 November 1993. MIRO in affirming the Department's decision referred to the discrepancies in the account given by the Applicant and the Principal.

At a hearing on 22 November 1994 the Tribunal took oral evidence from the Applicant, from Ms Tran, a friend of the Principal's sister, from Mr Vu, the Principal's brother-in-law and his wife, Mrs Vu. In addition the Tribunal had access to the Department's files.

Written documentation was also provided to the Tribunal. This included a psychologist's report on the Applicant, a submission from the Applicant's advisor and evidence of phone calls and correspondence between the Principal and the Applicant since the MIRO decision.

The Tribunal at its hearing heard evidence to the following effect.

The Applicant and the Principal first met in English classes where they studied together in 1985. They developed a relationship which continued for the next two years when the Applicant escaped Vietnam. The Applicant stated that at the time they had wanted to live together but her family did not agree because she was young and they did not like the Principal. She then decided to escape from Vietnam.

The Applicant did not discuss leaving Vietnam with the Principal because she believed he would try to stop her and he could not afford to come with her. She said they were both so young they could not survive in Vietnam without the approval of her family.

The Applicant settled in Australia after eleven difficult months in the refugee camp.

At a wedding celebration in late 1992 in Australia the Applicant recognised the Principal's sister because of a strong resemblance and from a photo she had seen at the Principal's house. She spoke to the sister, established that she was the sister of the Principal and obtained the address of the Principal. The Applicant subsequently wrote to the Principal and they recommenced their relationship. In December 1992 the Applicant travelled to Vietnam to visit the Principal. However her father had suffered a stroke and was hospitalised in a critical condition in Vietnam. Due to the stresses on the family at the time it was inappropriate for the Applicant to resume contact with the Principal on that visit.

The Applicant visited Vietnam again in March 1993. She saw the Principal at the airport but was unable to talk to him due to the crowds and her family being with her. The Applicant's family still did not approve of her relationship with the Principal.

The Applicant met the Principal several days later when she was walking to his house. She met the Applicant not far from his house. They decided to marry several days later and were married on 20 March 1993. The Applicant stated that their financial situation meant the wedding celebration had to be small

Oral evidence was also given from a witness, Ms Tran, who was a friend of the Principal's sister. She said she had recently travelled to Vietnam and took correspondence to the Principal from the Applicant. Whilst visiting the Principal, Ms Tran was asked to take some correspondence and presents home to Australia for his wife. Ms Tran said that the Principal told her he missed his wife and wanted to be reunited with her.

Evidence was taken from a second witness, Mr Vu, who is the brother-in-law of the Principal. He stated that he knew of the relationship between the Applicant and the Principal. He said that when he and his wife had visited the Principal in Vietnam the Principal was very upset at being separated from his wife. He asked them to look after his wife. Mr Vu stated that he believed the relationship to be genuine and said that when the Applicant got the decision from the Department she was very upset.

The third witness, Mrs Vu, is the sister of the Principal. She stated that she had known of the relationship between the Principal and the Applicant since they attended English classes together. She said she first met the Applicant at a party when the Applicant approached her and asked if she had a brother named Sinh. The Applicant then said she was his girlfriend in Vietnam and asked for his address and telephone number.

In considering the evidence in this matter the Tribunal believes that detailed and consistent explanations have been provided which explain the alleged contradictions referred to by the Department and MIRO.

The written submission from the Applicant thoroughly and plausibly explains confusion expressed by the Department about when the Applicant and the Principal actually reunited and also responds to confusion about the chance meeting in the street.

The psychologist's report is impressive in providing detail about the events surrounding this application and the genuineness of the Applicant.

The oral evidence confirmed the written documentation provided by the Applicant. The Tribunal found the Applicant's oral evidence to be sincere and credible.

The Tribunal is satisfied that on the balance of probabilities the marriage between the Applicant and the Principal is both genuine and continuing as at the date of decision as required by clause 100.333. The Tribunal finds that an assurance of support is not necessary.

The Tribunal remits this application for reconsideration with the direction that the Principal has satisfied all criteria for a spouse visa with the exception of the public interest criteria under clause 100.334.

I certify that this and the four preceding pages are a true copy of the Statement of Decision and Reasons for Decision of Peter Bruce, Presiding Member and Lynne Kosky, Member.

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