Vo, Thi Thuy [2001] MRTA 3854 (22 August 2001)

DECISION: The Tribunal remits the application made by the visa applicant for a Spouse (Provisional) (Class UF) visa to the Department of Immigration and Multicultural Affairs for reconsideration with the direction that the visa applicant meets the following criteria:

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate). Mr Van Ut Huynh (the visa applicant), a national of Vietnam, born on 8 November 1976, applied for a Partner (Provisional) (Class UF) visa on 15 October 1998 (D1, f.1). The delegate's decision to refuse to grant the visa was made on 21 October 1999 (D1, f.60).

2. Ms Thi Thuy Lan Vo (the review applicant), the spouse of the visa applicant, lodged a valid application for review to the Tribunal on 14 January 2000 (T1, f.1-5). 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). 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 to DIMA for reconsideration. 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 and policy immediately relevant to this review are:

Part 309 of Schedule 2 to the Regulations

Procedures Advice Manual 3: Generic Guidelines A and B

Bretag v Immigration Review Tribunal and Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, SG 72 of 1991, 29 November 1991)

Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (Unreported judgement delivered on 08 May 1990

6. 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.

D1 - DIMA case file F98/044780, folio numbered 1-76.

8. The delegate stated that the visa was not granted on the basis that he was not satisfied that the relationship between the visa applicant and the sponsor was genuine and continuing according to Reg 1.15A of the Act (D1, f.61).

9. The review applicant stated when lodging the application for review that the marriage between the parties is genuine and continuing (T1, f.3).

10. Further submissions and evidence were lodged on 21 June 2000 and 29 January 2001 (T1, f.28-33, 35-42).

11. The visa applicant is represented by Mr Brian Jones of Mackenzie Migration Services.

12. In order to succeed in an application for a visa under the regulations, it is necessary for the visa applicant to satisfy all criteria for the grant of a visa. Under sub-section 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant's favour on the basis of the information before it.

13. At the time the visa application was lodged Partner (Provisional) (Class UF) contained only one subclass: Subclass (Spouse (Provisional))(309). This is the only subclass in respect of which any claims have been advanced.

14. The visa application was made on the basis that the visa applicant is the spouse of Ms Thi Thuy Lan Vo, an Australian citizen (D1, f.11).

15. In previous decisions the Tribunal has followed the statement by the Full Court of the Federal Court in Minister of Immigration and Ethnic Affairs v Dhillon (Full Court of the Federal Court, 8 May 1992, unreported) regarding the test for a genuine and continuing marriage. The Court stated that :

It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. 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 together as husband and wife to the exclusion of others.

16. The Tribunal also notes that the Federal Court in Bretag v Immigration Review Tribunal (Federal Court O'Loughlin J, 29 November 1991, unreported) indicated that the Tribunal may have regard to the subsequent history of a relationship for the purpose of testing or determining whether the relationship was genuine and continuing at the time of application, so long as it "tends logically to show the existence or non-existence of facts relevant to the issue to be determined", quoting from Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at 160.

17. One necessary primary criterion for a Subclass (Spouse (Provisional))(309) visa is Regulation 1.15A:

Regulation 1.15A. Spouse

(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:

(a) in a married relationship, as described in subregulation (1A); or

(b) in a de facto relationship, as described in subregulation (2).

(a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and

(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii) the relationship between them is genuine and continuing; and

(B) do not live separately and apart on a permanent basis.

(3) In forming an opinion whether 2 persons are in a married relationship in relation to an application for a Spouse (Provisional) (Class UF) visa, the Minister must have regard to all of the circumstances of the relationship, including, in particular:

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets; and

(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv) whether one party to the relationship owes any legal obligation in respect of the other; and

(v) the basis of any sharing of day-to-day household expenses;

(i) any joint responsibility for care and support of children, if any; and

(c) the social aspects of the relationship, including:

(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and

(iii) any basis on which the persons plan and undertake joint social activities;

(d) the nature of the persons' commitment to each other, including:

(ii) the length of time during which the persons have lived together; and

(iii) the degree of companionship and emotional support that the persons draw from each other; and

(iv) whether the persons see the relationship as a long-term one.

18. The issue for resolution in this case is whether the review applicant and the visa applicant have demonstrated that they have a mutual commitment to a shared life with each other and exhibit sufficient of the characteristics contained in regulation 1.15A(3), not only at the time of application but in the subsequent development of their relationship since that time.

19. The primary decision maker had concerns relating to the short period of time the couple had known each other, the vague and inconsistent responses provided at interview and the lack of physical evidence commensurate with a genuine and committed spousal relationship. The evidence included 35 items of correspondence between the parties, telephone bills and a photograph album. The primary decision maker determined that the photograph showed the couple together on two occasions in addition to the wedding day and that one of these occasions was at the airport.

20. On review, further evidence has been provided concerning the social aspects of their relationship and the nature of the parties' commitment to each. With regard to the genuineness of the marriage, it appears that the couple had not known each other long before marrying and that the marriage was initially `arranged'. The submission dated 19 June 2000 does in fact outline the meeting of the parties who were introduced by a relative and the visa applicant assessed by the sponsor's parents as being suitable for marriage. It appears however, that on meeting, the couple themselves then determined whether the relationship would proceed to marriage. Consideration has to be given the cultural and traditional mores present in this case and, the general acceptance in some countries, of arranged marriages. In this case, the sponsor prepared the necessary paperwork for marriage before departing Australia, in anticipation of the marriage taking place.

21. The sponsor departed Australia on 18 April 1998 (T1, f.46) and was met at the airport in Vietnam by her intended spouse. The couple met and spent time together and decided to marry. The couple married in a traditional wedding ceremony on 28 May 1999 and have provided a marriage certificate issued on 5 June 1998 (D1, f.53). The couple spent the remainder of the sponsor's visit to Vietnam visiting their home provinces of Ben Tre and Tra Vinh and meeting relatives of both parties. The sponsor returned to Australia on 12 July 1998 (T1, f.46). The sponsor subsequently visited the visa applicant in Vietnam for nine weeks between 3 March 2000 and 12 May 2000 (T1, f.46). Movement data confirms the visit. In addition, copies from the sponsor's passport correspond with these dates and evidence the sponsor's entry and exit of Vietnam. The sponsor has not made any further trips to Vietnam in view of the considerable burden involved in raising funds for such a trip.

22. The evidence provided includes photographs (41) of the couple together during the last visit to Vietnam, together with photographs (23) of the wedding and others (4) taken after the wedding. Other supporting evidence provided includes a receipt for $500.00 sent by the sponsor to the visa applicant and eleven certified copies of envelopes received by the sponsor, from the visa applicant (T1, f.12-22, 28). In addition, the submission dated 29 January 2001 provides documentary evidence of 12 telephone calls between the sponsor and the visa applicant in Vietnam (T1, f.35-41).

23. This relationship has now been ongoing for some 3 years now. Their relationship has developed over time and the evidence provided indicates a genuine and continuing relationship and a commitment to spend their lives together as spouses thereby satisfying the requirement of Reg 1.15A.

24. On the basis of all the material before it, the Tribunal makes the following findings:

* the review applicant and the visa applicant are married to each other under a marriage that is recognised as valid for the purposes of the Act. The visa applicant therefore satisfies regulation 1.15A(1)(a) and also clause 309.211 as the review applicant is an Australian citizen.

* there is evidence 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. The visa applicant, therefore, satisfies regulation 1.15A(1A)(b)(i) and (ii).

* the review applicant and the visa applicant do satisfy the requirement of regulation 1.15 A(1A)(b)(iii)(B) as they do not live separately and apart on a permanent basis. They are separated only by the necessity of waiting for the outcome of this application.

25. The Tribunal also finds that as the visa applicant is sponsored by the review applicant, she satisfies clause 309.213. As the review applicant is not prohibited from being a sponsor by clause 309.212, the visa applicant satisfies clause 309.212. The Tribunal also accepts that at the time of decision, the visa applicant continues to be the spouse of the review applicant. The visa applicant, therefore, satisfies clauses 309.221 and 309.223.

26. Given the findings made above, the appropriate course is to remit the application for the visa to DIMA for further action to consider any remaining criteria for the visa. The Tribunal is not in a position to decide any remaining criteria.

27. The Tribunal remits the application made by the visa applicant for a Spouse (Provisional) (Class UF) visa to Department of Immigration and Multicultural Affairs for reconsideration with the direction that the visa applicant meets the following criteria:

* Regulation 1.15A