MAO (Migration) [2017] AATA 768 (26 April 2017)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Ms Socheata Mao

VISA APPLICANTS: Mr Ty Bung

Mr Leap Seang Bung
Mr Pengan Bung
Mr Leap Heng Bung

CASE NUMBER: 1612990

DIBP REFERENCE(S): BCC2015/2937088

MEMBER: David Barker

DATE: 26 April 2017

PLACE OF DECISION: Sydney

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.300.211, cl.300.212, cl.300.213,

cl.300.214, cl.300.215, cl.300.216 and
cl.300.221 of Schedule 2 to the
Regulations; and

with the direction that the second, third and fourth

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

 cl.300.312 of Schedule 2 to the

Regulations.

Statement made on 26 April 2017 at 10:10am

CATCHWORDS

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Migration – Prospective Marriage (Temporary)(Class TO) visa – Subclass 300 (Prospective Marriage)
– Genuine and continuing relationship – Consideration of totality of evidence – Genuine intention to
live together as spouses – Intends to be married

1. LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, r 1.15A, cl 300.211, cl 300.212, cl 300.213, cl 300.214, cl
300.215, cl 300.216, cl 300.221

Case Number 1612990 Page 2 of 9

 STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

2. 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).

3. The visa applicants applied for the visas on 7 October 2015. 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
c.300.216.

4. The delegate refused to grant the visas on 7 July 2016 on the basis that the first named visa
applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because they were not
satisfied that the evidence demonstrated the parties were or intended to be in a genuine and
continuing relationship. The delegate was not satisfied at the parties genuinely intend to live
together as spouses.

5. The review applicant appeared before the tribunal on 11 April 2017 to give evidence and
present arguments. The tribunal also received oral evidence from the visas applicant. The
tribunal hearing was conducted with the assistance of an interpreter in the Khmer
(Kampuchean/Cambodian) and English languages.

6. The review applicant was represented in relation to the review by her registered migration
agent, Mr Gary Howard

7. For the following reasons, the tribunal has concluded that the matter should be remitted for
reconsideration.

8. BACKGROUND

9. The review applicant was born in Cambodia and is currently 48 years old. She first arrived
in Australia in 1997 on a spouse visa and was granted Australian citizenship in December
1999. The review applicant was previously married to Mr Thou Chheun from 1996 to May
2000. There were no children from that union, however the review applicant has an
Australian citizen child, Damien, born in October 2000.

10. The visa applicant is a citizen of Cambodia and is currently 43 years old. The visa applicant
was previously married to Ms Nang Loem Chhiu. This marriage is reported to have ended in
January 2011. There were three children from that union: Leap Heng Bung, born in 1999,
Pengan Bung, born in 2001 and Leap Sean Bung, born 2004. These three children are
secondary visa applicants on the basis of their claimed dependency on their father.

11. The parties claimed that they first met each other in Cambodia in December 2012. They next
met in Cambodia when the review applicant returned there in June 2013. The parties held
an engagement ceremony when the review applicant was again in Cambodia in June 2015.
Following on this the visa applicant visited Australia in December 2015 and the review
applicant has made further trips to Cambodia in May 2016 and December 2016.

12. The parties were interviewed by the department in Phnom Penh, Cambodia on 1 June 2016.

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13. The delegate who considered the application noted the following issues:

 Whilst the party is opened a joint bank account in December 2015 no transactional
evidence was provided regarding this account. When interviewed by the apartment
the parties indicated they had not discussed at that stage any financial plans for their
future;

 When interviewed the review applicant appeared to provide a memorised response

which suggested a level of preparation for interview and a lack of actual knowledge
of the review applicant’s living situation in Sydney, NSW;

 Whilst the parties provided photographs of their engagement ceremony and various
photographs in other social settings in Cambodia, the delegate was concerned that
the sorts of photographs can be provided to strengthen a visa application, rather than
as a genuine way of documenting a relationship;

 The parties claim they met each other in 2012 when the review applicant was in
Cambodia for her mother’s funeral. They claim that I’ve kept in contact before
getting engaged and 28 June 2015. It is noted that after meeting in 2012 the parties
did not meet again until their engagement in 2015. The parties provided no
evidence of the relationship, including evidence of communication, prior to 2015.
The delegate gave no weight to the party’s relationship development prior to 2015;
and

 The parties’ discussion of their future plans was vague and lack any real
consideration of long-term plans.

14. Based on these considerations, the delegate was not satisfied that the parties genuinely
intended to live together as spouses and therefore did not meet the criteria in cl.300.216.
The delegate found the visa applicant did not meet the criteria in cl.300.221. Accordingly, the
application was refused.

15. The review applicant provided various documents to the tribunal in support of the application
including the following:
 A written submission from Mr Howard,
 Travel records;
 Untranslated letters and post marked envelopes;
 Photographs;
 Bank records; and
 Telephone records of the review applicant.

16. The parties gave their evidence in a reasonable and plausible manner.

CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the parties genuinely intend to live together as
spouses and meet the other criteria for the grant of the visa.

INTENTION TO MARRY AN ELIGIBLE PERSON

18. 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.

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19. The review applicant became an Australian citizen in December 1999. She has provided to
the department copy of her certificate of Australian citizenship and Australian passport. The
parties provided information, including arrangements made with a marriage celebrant, Ms
Natalie Olive, to indicate that at the time of the application they intended to marry on 27
August 2016. Ms Olive states a Notice of Intention to Marriage remained valid until 27
March 2017. Accordingly, the requirements of cl.300.211 are met.

HAVE THE APPLICANTS MET IN PERSON AND ARE THEY KNOWN TO EACH OTHER
PERSONALLY?

20. Clause 300.214 requires that the parties have met in person since each of them turned 18
and that they are known to each other personally.

21. The parties first met each other in December 2012 when the review applicant was visiting
Cambodia. She has since returned to Cambodia on a number of occasions including in June
2015 when an engagement celebration was held. The visa applicant also visited the review
applicant in Australia in December 2015. Photographs have been provided of the visa
applicant and the review applicant together. Therefore, at the time of application, the
requirements of cl.300.214 were met and this criterion continues to be met.

DO THE PARTIES GENUINELY INTEND TO MARRY?

22. 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.

23. At the time of the application, the parties had held an engagement ceremony in Cambodia in
June 2015. Photographs were provided to the tribunal of the parties’ celebration.
Arrangements had been made with a marriage celebrant in Australia for a marriage between
the parties to take place on 27 August 2016. Those arrangements had to be cancelled as the
application was refused.

24. The tribunal notes the marriage celebrant attested to a Notice of Intended Marriage, dated
27 September 2015, which says that the parties plan a marriage ceremony on 27 August
2016.

25. The parties still have plans to be married in Australia, however, have not made any bookings
at this time as they wish to wait until a decision has been made in relation to the visa before
committing to specific arrangements. On the basis of the evidence before it, the tribunal is
satisfied the parties do intend to marry in Australia as soon as possible if the visa is granted.

26. 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 was within the anticipated
visa period as required by cl.300.215(b) and the parties planned to marry each other in
Australia as soon as possible. Therefore, the requirements of cl.300.215 are met. The
parties continue to genuinely intend to be married and, although no set arrangements have
been made, the Tribunal finds that it is intended the marriage is to take place within the visa
period.

DO THE PARTIES GENUINELY INTEND TO LIVE TOGETHER?

27. 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

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 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.

28. The tribunal has had regard to the considerations for a spousal relationship taking into
account the degree to which these factors may be applied to determine a future intention.

29. Development of relationship

30. The review applicant told the tribunal that her first marriage was difficult. She said she
raised her son, Damien, as a single mother and has at times struggled with loneliness and
depression.

31. The review applicant said that she met the visa applicant in December 2012 when she was
in Cambodia for the occasion of her mother’s 83rd birthday. The visa applicant attended the
birthday celebrations, as it provided an opportunity for them to meet. She said they had a
mutual friend, who the review applicant knew from the Bonnyrigg, NSW Buddhist temple
who suggested they meet. She said they did not start a close friendship at that time, but did
after they reconnected when she returned to Cambodia in 2013 after her mother passed
away.

32. The review applicant gave evidence the parties stayed in touch with each other by phone
and internet. She said they made a commitment to a relationship in January 2015 and she
travelled back to Cambodia for an engagement ceremony in June 2015. She said the visa
applicant organised this event, which was attended by friends and members of both of their
families.

33. The tribunal acknowledges the evidence from both parties that they plan to have a marriage
ceremony and reception in Australia if the visa applicant is granted the visa. The party
explained their wish to marry in Australia, rather than in Cambodia, is so more of the review
applicant's friends in Australia can attend and participate in the marriage celebration.

34. Nature of the household

35. As the parties live in separate countries, it is not surprising that they have not been able to
establish a household together.

36. The department’s movement records show and the tribunal accepts that the review applicant
has travelled to Cambodia on three occasions since they commenced a relationship with
each other and the visa applicant has on one occasion travelled to Australia to spend time
with the visa applicant, a few months after their engagement in 2015. The tribunal notes that
this would appear to encompass more contact between the parties, since their engagement
than was referred to by the delegate in their decision record.

37. The review applicant gave evidence she owns a four bedroom home in Wakeley, NSW and
that the parties plan to live there with all of the children from their respective past
relationships. The parties gave evidence the visa applicant will study to improve his English
language skills and seek paid employment. The tribunal can see nothing implausible about
this proposition.

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38. After considering the available evidence about the household aspects of the parties’
relationship and notwithstanding their living in different countries throughout their
relationship, the tribunal gives some weight to this aspect of the relationship as an indicator
the parties are in a genuine and continuing relationship.

39. Financial aspects

40. The Tribunal finds that there is documentary evidence that the visa applicant has provided
some financial support for the review applicant, through funds he has deposited into a joint
account with the ANZ Bank the parties established in December 2015. These funds amount
to around $3,060. The review applicant indicated she uses funds sent to her by the visa
applicant for everyday expenses incurred by her son and herself but has no documentary
evidence to corroborate this claim.

41. As the parties live in separate countries, there is little other to indicate the parties are pooling
their financial resources, have any joint liabilities or are sharing their day-to-day household
expenses and the tribunal gives little weight to this aspect of the relationship.

42. Social aspects

43. The tribunal has sighted a range of photographs of the parties in various social settings
since 2012, including photographs with the three secondary visa applicants and the review
applicant’s son. The tribunal also sighted photographs of the parties with other adults and is
satisfied these include members of their respective families and also friends.

44. The tribunal acknowledges that the son, cousin and one friend of the review applicant
attended the engagement party in Cambodia. The tribunal accepts the evidence of the
review applicant that her Cambodian relatives occupied two of the ten tables of guests at this
event.

45. The tribunal has had regard to the oral evidence of Ms Chautha Chhin and Ms Ly Teang
Seng during the hearing and has placed some weight upon it.

46. Ms Chhin stated she is a friend of the review applicant and accompanied her to Cambodia in
2015 for the parties’ engagement ceremony. Ms Chhin said the review applicant frequently
talks about her relationship with the visa applicant and of her hope he will be able to join her
in Australia so she can have a less lonely life. Ms Chhin said she had contact with both the
parties during the visa applicant’s visit to Australia in later 2015 and gave her opinion that the
parties have a genuine and supportive relationship.

47. Ms Teang stated she is a friend of the review applicant and distant relative of the visa
applicant. She said she connected the parties together as she was aware they were both
responsible single parents raising their children and experiencing loneliness in their personal
lives. She said she thought their personalities would be compatible and as things have
turned but she thinks she was correct in this view. Ms Teang gave her opinion the parties
are in a genuine relationship.

48. After considering the currently available evidence, the tribunal is satisfied that parties have
represented themselves to their friends and family as being in a genuine relationship and
have the intention to live together with their children as a family. The tribunal has given
significant weight to this aspect of their relationship.

49.

50.

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 51. Nature of the commitment

52. The review applicant told the tribunal her first marriage was difficult and she had a lonely life
after the break down of her first marriage, as she was a single parent. She said this was
something she and the visa applicant had in common, as he was bringing up the three sons
from his first marriage as a single parent in Cambodia. The review applicant said the visa
applicant has a calm demeanour and even when he is angry with one of his children, he
talks to them in a rational way. She said this is a character trait she was drawn to in the visa
applicant. She said he is also direct and honest in his interactions with her, which is
something else that she appreciates.

53. The parties have set out their plans for their future together should the application be
successful. They have provided details of where they would live, the manner in which they
will care for their children in a blended family context and what work the visa applicant would
seek to obtain in Australia.

54. The information provided by the parties support a finding that they provide the degree of
companionship and emotional support to each other which would be expected in a genuine
and continuing relationship. The parties’ plans for their future together indicate they consider
their relationship as a long term one.

55. Assessment of the parties’ relationship and intention to live together as spouses

56. The tribunal finds that documentary evidence supports the parties’ claims that they have had
a friendship since 2013, which subsequently evolved into a committed relationship. The
parties had an engagement ceremony in Cambodia in June 2015 which was attended by
members of both parties’ families. The review applicant has travelled to Cambodia on three
occasions to specifically spend time with the visa applicant and he has travelled to Australia
on one occasion to spend time with her.

57. There is documentary evidence of regular communication between the parties by telephone,
however as the content of these phone conversations is unknown, the tribunal has placed
limited weight on them. The tribunal has also placed no weight on post marked envelopes
and untranslated documents, as the content of these documents and the envelopes in
unclear.

58. The tribunal finds that the parties have discussed details of their future life in Australia and
based on consistent oral evidence from the parties, the tribunal is satisfied that they draw
emotional support from each other, and that each party considers their relationship to be a
long term one. The tribunal has placed considerable weight on the commitment aspects of
the partiers relationship. The tribunal is also satisfied the household and social aspects of
the parties’ relationship are consistent with two people in a genuine and continuing
relationship. The cumulative weight given to these aspects of the parties’ relationship
outweigh the lack of weight the tribunal has given to the financial aspects of the parties’
relationship.

59. The issue before the tribunal is whether, at the time of application in October 2015, the
review applicant had a genuine intention to live with the visa applicant in a spousal
relationship. Having carefully considered the totality of the evidence, and regard to the
considerations set out in r.1.15A(3) for spousal relationships, the tribunal finds that at the
time of application the parties did have genuine intention to live together as spouses, and
therefore cl.300.216 is met.

60.

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 61. Do the parties continue to meet time of application requirements?

62. 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.

63. Having considered the totality of the evidence, the tribunal is satisfied that the visa applicant
continues to intend to marry the review applicant who is an Australian citizen and the parties
continue to know each other personally, therefore the visa applicant continues to meet
clauses 300.211 and 200.214. The tribunal finds that the visa applicant continues to satisfy
clause 300.215. On the basis of all of the evidence, the tribunal is satisfied that the visa
applicant and review applicant genuinely intend to live together as spouses at the time of
decision, in that they intend to be validly married, with a mutual commitment to a shared life
as husband and wife, that they intend to form a relationship which is genuine and continuing.
Therefore, the visa applicant continues to satisfy clause 300.216.

64. Having considered the available evidence, the tribunal is satisfied that the applicant
continues to satisfy the criteria in cl.300.211, cl.300.212, cl.300.213, 300.214, 300.215 and
300.216. Accordingly, the Tribunal finds that cl.300.221 is met.

65. Secondary visa applicants

66. The tribunal is satisfied on the basis of the application forms that the sponsorship referred to
in cl.300.213 in respect of the person who satisfies the primary criteria includes sponsorship
of the secondary visa applicants; Mr Leap Sean Bung, Mr Pangan Bung and Mr Leap Heng
Bung. Accordingly, the tribunal finds that the secondary visa applicants meet cl.300.312.

67. Given the findings above, the appropriate course is to remit the application for the visas to
the Minister to consider the remaining criteria for a Subclass 300 visa.

DECISION

68. 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, cl.300.212, cl.300.213, cl.300.214, cl.300.215, cl.300.216 and

cl.300.221 of Schedule 2 to the Regulations; and

with the direction that the second, third and fourth named visa applicants meet the following
criteria for a Subclass 300 (Prospective Marriage) visa:

 cl.300.312 of Schedule 2 to the Regulations.

David Barker
Member

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