CATCHWORDS: Review of visa refusal - Subclass 300

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Prospective Marriage (Temporary) (Class TO) visa.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate). Ms Thi Thao Nguyen (the visa applicant), a national of Vietnam, born on 20 April 1977, applied for a Prospective Marriage (Temporary) (Class TO) visa on 19 November 1996. The delegate's decision to refuse to grant the visa was made on 1 July 1998. The delegate's decision was affirmed by a review officer on 21 April 1999.

2. Mr Chanh Binh Tran, the review applicant and prospective spouse of the visa applicant, lodged a valid application for review with the Tribunal on 29 June 1999. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs (DIMA or the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria immediately relevant to this review are set out in:

Part 300 of Schedule 2 to the Regulations

Procedures Advice Manual 3: Division 1.2: Interpretation - Regulation 1.15A - Spouse

Phan v Minister for Immigration & Multicultural Affairs [ 2000] FCA 89 (11 February 2000).

6. Class TO contains one subclass of visa: the Subclass 300 (Prospective Marriage) visa. The following criteria for a Subclass 300 visa, which must be satisfied at the times of both application and decision, are relevant to the Tribunal's consideration:

300.21 Criteria to be satisfied at time of application

300.211 The applicant intends to marry a person who is:

300.212 (1) The prospective spouse of the applicant is not prohibited by subclause (2) from being a sponsor.

(2) The prospective spouse is prohibited from being a sponsor if:

(a) the prospective spouse is a woman who was granted a woman-at-risk visa within the 5 years immediately preceding the application; and

(i) the applicant was a former spouse of that woman, having been divorced from that woman; or

(ii) the applicant was the spouse of that woman and that relationship had not been declared to Immigration; or

(iii) the applicant was permanently separated from that woman.

(a) if the prospective spouse has turned 18 - the prospective spouse; or

(b) if the prospective spouse has not turned 18 - a person who:

(ii) is a parent or guardian of the prospective spouse; and

300.214 The parties have met and are known to each other personally.

(a) that the parties genuinely intend to marry; and

(b) that the marriage is intended by the parties to take place within the visa period.

300.216 The Minister is satisfied that the parties genuinely intend to live together as spouses.

300.22 Criteria to be satisfied at time of decision

300.221 The applicant continues to satisfy the criteria specified in clause 300.211 and clauses 300.214 to 300.216.

7. At the date of application, `spouse' was defined in regulation 1.15A.

8. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

10. The application that is the basis for this review was lodged on the grounds that the visa applicant intends to marry her Australian citizen nominator, the review applicant. The visa applicant claimed when interviewed by a DIMA officer that her family and the review applicant's family know each other and also her sister is married to the review applicant's brother. The parties say that the review applicant returned to Vietnam in 1993 and took a gift with him for the visa applicant. The review applicant returned to Vietnam again in 1996 and the visa applicant met him at the airport. The couple claim to have become engaged during this period.

11. Lodged in support of the application was a Notice of Intended Marriage indicating that the couple was to be married on 27 February 1997. Also presented were several untranslated letters between the couple.

12. DIMA case notes indicate that the delegate was almost prepared to accept that the relationship was genuine however came across a `private' letter which appears to have been submitted by mistake. The case notes indicate that this letter was from the visa applicant to the review applicant and showed that the couple maintained contact just for migration purposes and that the prospective spouse relationship did not exist and that the review applicant had a girlfriend in Australia.

13. The delegate refused the application on 1 July 1998. This finding was based on the contents of the `private' letter, with the delegate finding that the correspondence between the couple was not maintained because of a genuine spousal commitment to each other. Whatever the nature of the relationship at the time of the application, the delegate found that it was not a genuine and continuing relationship at the time of the decision.

14. An application for internal review was lodged on 25 September 1998 with the review applicant claiming that the `private' letter was a mistake by the visa applicant, as she was jealous over a rumour that he had a new girlfriend. No further evidence was submitted and the refusal decision was affirmed on 21 April 1999.

15. A further application for review was lodged with the Migration Review Tribunal on 29 June 1999, with the review applicant claiming that he and the visa applicant had been in a truly loving relationship and that he intended to marry her.

16. The Tribunal wrote to the review applicant on 28 August 2001 again raising the matter of the letter which caused the previous refusals. The letter invited him to comment within 35 days and warned that the Tribunal was empowered to make a decision without further reference to him if he did not respond.

17. The review applicant did not respond and the Tribunal made its decision on the material before it.

18. In order to find that the visa applicant meets the criteria for this visa, the Tribunal must be satisfied that the parties know each other personally, that they genuinely intend to marry within the time permitted by the visa and further that they intend to live together as spouses. The Tribunal must therefore have regard to the relevant definition in the Regulations and to policy guidelines as to what the term `spouse' means in the immigration context. Broadly speaking, the Tribunal must be satisfied that the review applicant and the visa applicant have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them is genuine and continuing and that they intend to live together. In examining this issue the intent and commitment of the parties to the spousal relationship is a crucial element.

19. In considering whether the parties intend to live in a genuine spousal relationship that meets the definition of spouse contemplated in the Regulations the policy guidance on this topic points out that the parties may have ancillary motives, which may include a desire to improve their economic or social status. This means that even if part of the motivation of a marriage is to gain entry into Australia, such a finding of fact is still consistent with there being a genuine and continuing marriage. These factors are irrelevant except insofar as they reflect on the mutual commitment of the parties to a shared life as husband and wife to the exclusion of all others.

20. The visa applicant's statements in her letter of 4 February 1998 referring to the maintenance of the relationship for migration purposes, however, raises doubts that the parties had a genuine intention to marry and live together as spouses in Australia at the time of the visa application. The review applicant has attempted to explain this letter as occurring when there was a rift over the visa applicant's suspicion that the review applicant had a girlfriend. The Tribunal has not had an opportunity to question the parties further about this as the review applicant did not take up the opportunity to make further comments and attend a hearing. As well, while not conclusive, the fact that the review applicant received the invitation to attend a hearing and decided not to attend does raise an inference that he is not committed to his prospective spouse.

21. The Tribunal has very little else to inform its decision. The parties have provided no further evidence of their relationship since the material supplied to DIMA. The review applicant's review application contains a statement that the parties `have been truly and sincerely of loving relationship' and that he intends to marry the visa applicant and that both sets of parents approve. He further states that they maintain contact but had produced nothing to substantiate this.

22. On all the above evidence and for the above reasons the Tribunal is not satisfied that the visa applicant at the time of the visa application did intend to marry the review applicant. Further, the Tribunal has insufficient evidence to be satisfied that, at the time of decision, the visa and review applicants have a genuine intention to marry and live together as spouses in Australia at the time of this decision. See Phan v Minister for Immigration & Multicultural Affairs [ 2000] FCA 89 (11 February 2000).

23. Criterion 300.216 requires the Minister to be satisfied that at the time of application the parties genuinely intend to live together as spouses. In relation to the definition of "spouse", Regulation 1.15A provides that the two persons must have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship between them is genuine and continuing, and that they do not live apart on a permanent basis. See Regulation 1.15A (1)(b)(i) and (ii)).

24. Taking the evidence, the Regulations referred to above and policy into account, the Tribunal finds that at the time of application the parties did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship between them was not genuine and continuing, and that they did not genuinely intend to live together as spouses.

25. It follows that the Tribunal finds that the visa applicant fails to satisfy criterion 300.211(a) at the time of application and criterion 300.321 at the time of this decision. The Tribunal further finds that the visa applicant fails to satisfy criterion 300.216 at the time of application.

26. Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.

27. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Prospective Marriage (Temporary) (Class TO) visa.