Migration Review Tribunal (MRT) Appeal Case: Partner Visa Refusal

By popular request by those who have run foul of Department’s stringent assessment of partner visa application. A number of Federal and MRT cases are cited in the submission below:


PART A

27 October 2006

 

Mr.  XXXXlson

Migration Review Tribunal,

Level 12

460Lonsdale  Street
Melbourne VIC 3000

 

MRT File Ref: . 520

 

Dear Mr. Wilson,

 

Re: Submission – MRT File Ref: . W0600520

 

Date of MRT Hearing: 3 November 2006 – 9 AM  (Perth Time)

 

Review applicant/ sponsor : Mr. XXXXXX – Age 27+)

Visa applicant: Ms XXXXX – Age 22)

Visa class : Class UF

Subclass 309 Spouse (Provisional)

Date of application: 6 September 2005

Date of Visa Refusal: 17 November 2005

DIMIA File No. OSF XXXXX47543

Processing Office:  Australian Consulate General – Ho Chi Minh City

 

 

1.0       This appeal to refers to the visa refusal for a visa class UF, Subclass 309 Spouse (Provisional) application submitted at the Australian Consulate General – Ho Chi Minh City, Vietnam on the 6th September 2005. Mr. XXXXX sponsored Ms XXXX (no blood relationship between the parties) as his spouse under the  subclass.

 

The DIMA’s primary decision maker, the delegate, decided to refuse to grant the visa on 17 November 2005. The delegate was not satisfied that the review applicant and visa applicant were in a genuine and continuing spouse relationship at the time of the visa application. The delegate suspected the review applicant’s marriage was contrived for the purpose of migration. The delegate assessed that the visa applicant and the sponsor had not satisfied that a genuine spousal relationship exists between the two persons as defined in the Migration Regulations. The delegate assessed that they do not meet the criteria 309.211, at time of application and 309.221 at the time of decision making of Schedule 2 of the Migration Regulations. The delegate, more specifically, assessed that the definition of “spouse”, as defined in the  Regulation 1.15A(1A), was not fulfilled. Regulation 1.15A refers to the definition and assessment of spousal relationship”. The applicant and the sponsor otherwise is seen to fulfill all other criteria of Schedule 2, Subclass 309.

 

  • This appeal is based on documents held in the DIMA File Ref OSF 2005/047543 (obtained under the Freedom of Information), the Migration Regulations, PAM 3, and  relevant MRT and Federal Court cases. Additional documents accompany this appeal to support the claim that a genuine spousal relationship has always existed and continues to exist to the present date. The documents in the  DIMA file are  marked as Folios No.1 to 164.

 

  • The delegate also referred to information and the decision record of a previous visa application. On the 1st of November 2004 the visa applicant and the sponsor had unsuccessfully applied for a class TO, subclass 300 – Prospective Marriage at the same overseas post. DIMA file reference is 04/039958. That application was refused on the 16th February 2005 on the grounds the parties failed to satisfy the delegate the fulfillment of clause 300.216, i.e the parties have genuine intentions to get married and live as spouses. The refusal decision was not submitted for MRT appeal and now it falls outside the ambit of MRT  review  due to lapse of time limit. It is merely mentioned here to support our claim elsewhere in this submission of the delegate’s inherent bias in the decision making process of the subsequent subclass 309 visa application.

 

  • For the fist s/c 300 visa application the parties were duped into using the misconceived services of an Australian-Vietnamese agent operating illegally within the Perth Vietnamese community under the name of  Phat Chan Ly. The unregistered agent had coached the sponsor and the visa applicant to declare that their relationship had started earlier in 1998 and that their commitment to each other is based on mutual love, to depict a  relationship as in an urban lifestyle or in Western cultures. In their genuine keenness to get married and live as husband and wife in Australia the young couple and their family members were readily persuaded to adopt this inappropriate and unfortunate strategy. As coached by the unregistered agent, at the interview the visa applicant declared that her relationship was based on acquaintance since 1998, when in fact it began only in 2004. In reality and as a mater of fact the visa applicant and the sponsor, as two desperate people keenly committed to each other to the future life as husband and wife and in fear of the high rate of visa refusal at the overseas post in Vietnam, and ignorant of the complex migration laws, blindly signed and followed whatever was directed by the unregistered agent. This temporary lapse in their good judgment does not distract from the fact of their genuine commitment to each other. It is however noteworthy that the parties have been frank and spotlessly honest in all their subsequent dealings with the Department. Naturally, the application for the s/c 300 was assessed as not meeting the requirements of clause 300.216, namely that the parties failed to establish the veracity of their claim.

 

  • With the present application, the delegate assessed that the visa applicant  and the sponsor do not meet the requirements of “spouse” as in clause 309.211 or 309.221, cross referenced to Regulation 15A which defines genuine spousal relationship.  The 309.211 requires the visa applicant be the spouse at the time of making the application and continues to be so at the time of decision making as required by clause 309.221. The criteria for a Subclass 309 visa are set out in Part 309 of Schedule 2 to the Regulations and are  set out below:

 

309.21 Criteria to be satisfied at time of application

    309.211 (1) The applicant meets the requirements of subclause (2) or (3).

(2) The applicant meets the requirements of this subclause if the applicant is the spouse of:

(a) an Australian citizen; or

(b) an Australian permanent resident; or

(c) an eligible New Zealand citizen.

[NOTE: “spouse” includes a de facto spouse: see definition of “spouse” in regulation 1.03.]

(3) The applicant meets the requirements of this subclause if:

(a) the applicant intends to marry:

(i) an Australian citizen; or

(ii) an Australian permanent resident; or

(iii) an eligible New Zealand citizen; and

(b) the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.

[NOTE: If the applicant is an applicant referred to in subclause 309.211 (3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 309.224.]

309.212 (1) The spouse, or intended spouse, of the applicant is not prohibited by subclause (2) from being a sponsor.

(2) The spouse, or intended spouse, is prohibited from being a sponsor if:

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

(b) on the date of grant of that visa:

(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.

309.213 (1) If the applicant is an applicant referred to in subclause 309.211 (2), the applicant is sponsored:

(a) if the applicant’s spouse has turned 18 – by that spouse; or

(b) if the applicant’s spouse has not turned 18 – by a parent or guardian of that spouse who:

(i) has turned 18; and

(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

309.22 Criteria to be satisfied at time of decision

309.221 The applicant continues to satisfy the criterion in clause 309.211.

309.223 In the case of an applicant who meets the requirements of subclause   309.211 (2), the applicant continues to be the spouse of the person referred to in paragraph 309.211 (2) (a), (b), (c), or (d) who was the applicant’s spouse at the time of the application.

 

  • Regulation 1.15A, particularly sub regulation (3) sets out the mandatory considerations to determine whether one person is the ‘spouse’ of another person, whether married or in a de facto relationship. The delegate in arriving at an opinion whether a married relationship exists between the parties is required to consider the circumstances set out in subregulation 1.15A(3). These subregulations relate to all the circumstances of the relationship including, in particular, the (a) financial aspects of the relationship, the (b) nature of the household,, (c) the social aspects of the relationship and (d) nature of the two persons commitment to each other and all other relevant indicators of spousal relationship. The relevant parts of regulation 1.15A are reproduced below:

1.15A. (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).

(1A) Persons are in a married relationship if:

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

(b) the Minister is satisfied that:

(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

(iii) they:

(A) live together; or

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

(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

[Paragraph 1.15A(3)(aa) was omitted by Statutory Rules 1999, No. 259 with effect on and from 1 November 1999.]

(ab) a Special Eligibility (Residence) (Class AO) visa; or

[Paragraph 1.15A(3)(ac) was omitted by Statutory Rules 1999, No. 259 with effect on and from 1 November 1999.]

(ad) a Partner (Migrant) (Class BC) visa; or

(ae) a Partner (Provisional) (Class UF) visa; or

(af) a Partner (Residence) (Class BS) visa; or

(ag) a Partner (Temporary) (Class UK) 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

(ii) any joint liabilities; 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;

(b) the nature of the household, including:

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

(ii) the parties’ living arrangements; and

(iii) any sharing of responsibility for housework;

(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:

(i) the duration of the relationship; and

(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.

(4) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ab), (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).

(5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.

  • Policy guidelines for subclass 309 Spouse (Provisional) in Schedule 2 is outlined in PAM as Pam3:Sch2Visa309 and for the Regulation 1.15A in Pam3:Div1.2/reg1.15A. The essential ingredients for “spousal” relationship in the  Regulation  15A(1A) operate as follows:
  •     regulation 1.15A(1A)(a) requires the relationship to be a de jure marital relationship recognised under migration law
  •    regulation 1.15A(1A)(b)(i) requires the relationship to be an exclusive one to which both parties have a mutual commitment
  •      regulation 1.15A(1A)(b)(ii) requires the (marital) relationship to be genuine and continuing (on-going)
  •      regulation 1.15A(1A)(b)(iii) requires the parties not to be living separately and apart on a permanent basis
  •      either by law or under policy, officers must have regard to regulation 1.15A(3) when assessing regulation 1.15A(1A)(b) requirements and consider all the circumstances of the relationship, in particular but not limited to the factors listed in regulation 1.15A(3).

 

  • We submit to the Tribunal that there exists a genuine commitment to each other since July 2004 between the parties, and that the genuine spousal relationship between them has endured to this very date in spite of the physical separation. The marital relationship between the parties has never lost its shine even after the visa refusals as demonstrated by the accompanying collaborative evidence, thus meeting the requirements of clauses 211, 309.221 and the relevant sub regulations of 1.15A, as understood by the construction of  plain words in of these regulations. In support of the claim we submit the following documents :
  1. The Decision Record of 17th November 2005- Folios  1 to 4
  2. DIMA’s Record of Preliminary Assessment dated 12.09.2005 – Folios 5 to 6
  3. Record of interview with Visa applicant dated 27 Sept 2005- Folios 7 to 20
  4. Log of Events and Dates of Visits to Vietnam by Sponsor Folios 21 to 33
  5. Leaflet on Vietnamese Customs and Rites -Marriage – Folios 34 to44
  6. Photos of marriage and social events – Folios 45 to 55
  7. Confirmation of Marriage and nil blood relationship – Folios 56 to 58
  8. Statement of members of neighborhood in Vietnam – Folios 59 to 62
  9. Birth certificate of Child – Folios 63 to 65
  10. Records of Phone calls – Folios 66 to 110
  11. Evidence of Letters from Visa applicant to Sponsor – Folios 111 to 128
  12. Evidence of Financial support,Baby Formula and exchange of presents– Folios 129 to 132
  13. Statement made by Visa applicant to DIMA . – Folios 133 to 134
  14. Statutory Declaration of Sponsor – dated 25.3.05 – Folios 135 to 137
  15. Statutory Declaration of Sponsor’s Father – dated 11.8.05 – Folios 138 to 139
  16. Statutory Declaration of Sponsor’s Brother in Law –Mr. XXX – dated 9.10.06 – Folios 140 to 142
  17. Statutory Declaration of XXX-family friend –dated 5.10.06 – Folios 143  to 147
  18. Statutory Declaration of Mr. XXXX – Family friend-11.10.06 – Folios 148 to 150

 

  • The main chronological events of the relationship extracted from Folios21 to 33  is  as follows:

 

  1. 1989: Sponsor and parents arrive in Australia as refugees
  2. The parents of the Visa applicant and the sponsor are old friends from same village in Vietnam.
  3. 6.04 : Sponsor visits parents’ village in Vietnam with his parents
  4. 7.04: Sponsor and his parents call on Visa applicant’s parents and renew old friendship and notice the fine qualities of visa applicant as an eligible bride for their son. Both the visa applicant and the sponsor are ready for marriage and were expecting their respective parents to find suitable marriage partners as is the practice among traditional Vietnamese families.
  5. 7.04 to 06.7.04: sponsor’s parents and extended family members discuss marriage for sponsor under the customary practices of the Vietnamese culture.
  6. 7.04: Consent sought from sponsor and visa applicant for the proposed union as spouses– Visa applicant and sponsor give their consent and commit themselves to get engaged and marry and live as life partners
  7. 7.04: Traditional Vietnamese engagement party in the presence of 200 guests. In Vietnamese culture the engagement ceremony is the main event held in public to signify that the two parties have now become husband and wife. The signing of the forms for the marriage certificate is however not a public event.
  8. 7.04: Both families reaffirm customary engagement arrangement in local temple
  9. 7.04: Sponsor’ parents return to Australia.
  10. 7.04: Sponsor returns to Australia after spending further time with visa applicant as fiancé
  11. 8.04: Sponsor explores the complex process to lodge subclass 300 –Prospective Marriage
  12. 8.04: Sponsor’s family duped into using an unregistered Australian “agent” from the Vietnamese community prepare and submit application. “Agent” gives inappropriate advise to applicants to claim the parties  are known know to each other since 1998 .
  13. 11.04: Application for subclass 300 submitted at Ho Chi Minh City
  14. 12.04: Visa applicant interviewed by DIMA officer
  15. 12.2004: Sponsor and brother travel to Vietnam to be with visa applicant
  16. 12.2004: Sponsor runs into “Agent” who advices to get married and have kids.
  17. 1.2005: Sponsor returns to Australia
  18. 2.05: Decision record for s/c 300 issued , Visa refused on the grounds “not genuine relationship. Hardly know each other and no serious consideration given to the relationship”.
  19. 3.2005 :In desperation sponsor travels to Vietnam and makes Statutory Declaration at the Australian post. Stays with spouse’s ( visa applicant) home. Folio 135
  20. 4.2005: Sponsor receives the news that  Visa Applicant is pregnant
  21. 4.2005: Signs confirmatory documents to formalize marriage
  22. 5.2005: Sponsor returns to Australia
  23. 9.2005: Submits fresh subclass 309 – Spouse Provisional Visa through Registered agent
  24. 9.2005: DIMA officer P.Yen records Preliminary Assessment for subclass 309 with the negative perception stating “It was so quick inception since pa and spr even didn’t have time to understand each other before engagement, the relationship was completely arranged by the family for the purpose of pa’s immigration.. Their marriage and pa’s pregnancy are also based on the “agent’s” advice.” (emphasis added) Folio 6 refers.
  25. 9.05: Visa applicant is interviewed by DIMA officer for s/c 309 visa. Folio 7.
  26. 11.2005: DIMA decision Record issued refusing visa on the grounds applicant does not meet criteria 309.211 or 309.221 ; Folio 1to 4
  27. 11.05: Visa applicant gives birth and Birthcerticate of child : Folio 63
  28. 11.05 : Sponsor and his sister and brother in law travel to Vietnam. Sponsor stays in visa applicant’s home. Organise and celebrate baby’s one month old event.
  29. 12.05: Sponsor returns to Australia
  30. 8.04 to 20.4.006 sponsor sends money and gifts to visa applicant and baby
  31. 6.06: Sponsor travels to Vietnam and stays with spouse
  32. 8.06 Sponsor returns to Australia
  • In the consideration of all the above events and documents held in the file the question can be posed as :

* Was the visa applicant the spouse of the sponsor at the time of the visa application?

* Was the sponsor an Australian citizen or Permanent residence at the time of the visa application ?

* Does the visa applicant continue to be the spouse of the sponsor at the time of decision ?

* Does the couple continue to exhibit pattern of behavior that is common between   spouses?

 

  1. The sponsor is an adult Australian citizen legally married to his spouse on the 22nd of April 2005 as evidenced by Folio number 51A and 51B in the DIMA file.
  2. Since the betrothal in July 2004 the sponsor has been back to Vietnam on 7 occasions to be united with his spouse and provide moral support to her. The total number of days spent with his spouse during this period adds up to about  6 months and 18 days, in spite of  the heavy work load in his family strawberry farm in Perth.
  3. Admittedly he is not good in written Vietnamese and relies more on telephone calls to his spouse. Those few letters he did write was written for him by his friend. DIMA’s Preliminary Assessor, under the caption Nature of the Content of e-mails/letters, makes a negative observation by stating “ almost about missing, tone is rather natural” in  Folio 6.
  4. He however, speaks to his wife almost every other day on the phone using pre paid cards each time the conversation lasting about 30 minutes. It appears each conversation ends with sad note with the expression of how they miss each other. The phone bills and used up pre paid phone cards are attached as in Folio 66 to 110.
  5. Like wise, it seems, the letters from the visa applicant to the sponsor, attached as Folios 111 to 128, (untranslated and in Vietnamese) echoes the love and the commitment the spouse has for the sponsor. Apparently the letters, it  seem,  describe how the child is growing up fast and calling every male adult as his dad in Vietnamese.
  6. The sponsor regularly spends money within his means. From 19.8.2004 to 20.04.2006 he has transmitted AUD 4300 to his spouse and child. This sum does not include the cash, ranging from $ 500 to $ 1000 that he hands over to her whenever he visits her in Vietnam. These is a significant sum when converted to local currency. The visa applicant in turn sends simple gifts, within her means, to the sponsor as an expression of love and commitment. Folios 129 to 130.
  7. Sponsor sends by air freight few hundreds dollars worth of milk powder and baby formula as evidenced in Folio 131.
  8. Sponsor gives gold jewelry, to the value of AUD 4,400, for his spouse and child on his trip to Vietnam on the 29th of  June 2006 as evidenced in Folio 132. Giving of gold jewelry in the Asian culture, for that matter in any culture, is an expression of enduring deep affection, appreciation and sharing of ones wealth (especially in a poor society) with the other person.

 

The above events and circumstances taken cumulatively and in relation to each other demonstrate a genuine marital relationship between the visa applicant and the sponsor, stemming from an arranged customary marriage within the Vietnamese culture. Some of these events are universal indicators of the existence of genuine marital relationship and the couple do hold themselves out to their peer group and the world as being in a genuine relationship..

 

  • It is relevant to have an understanding of the social and cultural background of the visa applicant and the sponsor. The visa applicant hails from a rural region of Vietnam and has completed schooling up to 11th year in Vietnam. Her background is that of a rural working class family. She   has no employment or career history. She has been assisting in the family household duties confined to routine life style daily. Her father is a skipper of a small cargo boat. She is the youngest child of a family with 4 children. She has very limited exposure to worldly experience and is generally timid. She does not own or operate a computer. At the time of visa application she was 21 years of age and is in the ripe age to marry and settle down according to her family status. As courtship and free association with the opposite gender, as one finds in urban or Western culture, is strongly frowned upon,  the responsibility of finding a spouse for her fell on her parents.

 

  • The sponsor and his parents also originate from the same neighborhood in Vietnam. They fled to Australia as refugees in 1989. Now aged 27 the sponsor is the eldest of the 4 boys in a tight knit family of also of rural background. His family members in Perth have maintained strong traditional Vietnamese cultural values where the deference to ones parents calls for obedience and obligations even in such matters as marriage and choosing of life partners. In such context, as in many other traditional Asian cultures, parties to arranged marriages are bonded and committed to each other for life even though the partners to the marriage might have met only a few days prior to their marriage day or even on the actual marriage day.  The sponsor completed a Tafe Diploma in computer studies 1998. On graduation he commenced work in the family’s horticulture business of strawberry cultivation. His parents and his siblings, including his married sister and her husband, manage  a 10 acre leased land to cultivate strawberries on a commercial scale for export and the local market. In the highly competitive cultivation of strawberry the family is not exceptionally wealthy.  The work in the farm is labor intensive and arduous from 7 am to 8 pm almost daily. The sponsor is in charge of spraying fertilizer and pesticide in addition to other general duties in the farm. The father and the elder sister take responsibility for the general well being of all the family members. Except for the married sister all family members live in the same household under the strong influence and watchful eyes of the father as the elder of the family. The source of income and the well being of every member of the family, social and economic, is dependent on the careful management of the strawberry farm, acting collectively and in unison  by every individual members of the family unit.  Under such circumstances the sponsor does not have the luxury of spare time to indulge in courtship or to choose a spouse on his own violation even though he lives in an average suburb of Perth.. The responsibility of finding a suitable wife for the obedient son generally fell on his parents. This kind of close knit Vietnamese family working cooperatively on a common horticulture enterprise and maintaining the traditional rural Vietnamese culture is not uncommon in Multicultural Australia

 

  • It is in the context of the above socio economic family background of the parties that one should look for the fulfillment of the relevant legislation. To understand the background to their marriage, nature of ensuing marital relationship, and the display commitment to each other we refer to Ann Caddel Crawfords writing in the section under Marriage in chapter 6  of her book  entitled  Customs and Culture of Vietnam, attached as Folio 37. It refers to “two distinct groupings as far as the important rite of marriage is concerned. One group is the more modern, who clings to Western innovations and desire similar weddings……with the second group and its traditional rites of engagement and marriage which are highly regarded and practical in Vietnam.”  She goes on to describe “….As with Confucianism, the physical development of love was not highly regarded. Parents frowned on courtship and falling in love thought badly of its advocates. Marriage was considered to be a duty, and was generally arranged in a non-emotional manner by the elders in the family. …” and “ ..Formerly couples readily submitted to the parents choosing their mates and still do to a great extend in the countryside.”  In this context it would be very difficult for a 21 year old girl to express her marital relationship to the satisfaction of the delegate in the consideration of the legislation.
  •                           –., He may well have taken into consideration the untruthful statements of the sponsor from the previous s/c 300 application, and if that is so, one is persuaded  to belief that the present decision to refuse the visa may well have been infected with bias. The delegate’s omission to interview the sponsor carries error to the extend one is compelled to question the reliability of the process of the decision making to refuse the visa.

 

  • The contents of the Preliminary Assessment, done on the12.9.2005, well  before the interview with the visa applicant,  was conducted and attached here as Folios 5&6, and the Record of the Interview, done on the 27.9.2005, Folios 7 to 20,. The tone of the contents of these  documents  indicate the process was contaminated with a  preconceived and pre-emptive, negative decision that was predetermined early in the process. The subsequent interview, and assessment was aimed at supporting that pre-existing biased negative decision.. The bias is reflected in the denial of  the existence of certain events and facts, focusing on wrong issues, neglecting to probe and follow up relevant issues, asking for non-existent facts and circumstances. The interview is more of an intimidating interrogation than an information gathering session. The Preliminary Assessment shows:

 

  1. In para 7.0, item x, expresses the negative inference on the neutral tone of the letters and omits to link with the reason for the neutral tone
  2. Makes negative inference as “only  06 photos of engagement ” –Folio 5

and  “ only 05 photos taken with family” Folio 6.

  1. Further in Folio 6 under Other Issues to Address in item 2,  it was reasoned as “ It was so quick inception since pa and spr even didn’t have time to understand each other before engagement, the rel (relationship) was completely arranged by the family for the purpose of pa’s migration. Their marriage and pa’s pregnancy are also based on the agent’s advice.” This negative conclusion of the marriage, seen as  arranged for migration, the scant and mechanical treatment of the pregnancy, and the non recognition of the ultra sound receipt has critically influenced all subsequent assessments cumulatively.  Evidently the tone and focus of the interview was directed to support and confirm  the  negative determination in the  Preliminary Assessment..

 

  1. In Folios 7  the delegate commences  the interview with reference to the previous s/c 300 application, evoking guilt and  fear of further visa refusal in the visa applicant’s mind,   leading to the loss of self confidence. He goes on to question and cast doubt on the paternity of her pregnancy, implying infidelity on her part. The doubt was  based on the travel dates of the sponsor and the contradictory dates in the ultra sound report from the regional hospital. When the visa applicant denies unfaithfulness and challenges her willingness undergo a DNA test he does not take up the challenge and to pursue for a DNA test. If this paternity issue is of such significant one, and it may well have been in the mind of the delegate, the visa applicant should have been encouraged to go through the test to resolve this niggling issue before making the negative decision. It may well be that the doubt over the paternity of the child  would have contributed to the making of the negative decision. Procedural fairness would have required him to resolve this issue one way or another. The relevance of any doubt over the paternity issue is addressed by the Tribunal Member Maritsa Eftimiou in the case of Duong, Van Xuyen [2000] MRTA 4007 (11 December 2000)  in para 34 :

In relation to the primary decision makers concerns about the genuineness of the relationship. The Tribunal places little weight on the issue of the paternity of the child. The evidence before the Tribunal is a birth certificate issued by the Vietnamese authorities that the sponsor is the father of the child. There is no evidence before the Tribunal on which it could make an adverse finding on this matter. Further, the question of the paternity of the child is not a principle issue in determining the genuineness of the relationship at the time of application. At the time of application the visa applicant and the sponsor had been married for over fifteen months and the Tribunal is satisfied for the reasons stated elsewhere that the relationship was genuine at that time. (Emphasis added).

  1. After establishing that the sponsor works in the family strawberry farm as a chemical sprayer all year round, almost every day from morning 7 am 7pm and that his only sporting activity is indoor weight lifting as his recreational sporting activities the delegate does not accept this a fact. He focuses on the wrong questions which reflected  bias that is framed within his own subjective values over sporting activities. He pressed on to question other  sporting activities of the sponsor in Australia in Folio 10 . The delegate apparently takes a negative view when the visa applicant could not provide the information on the sponsor’s other non existent sporting activities to the expectation of the delegate. This error on the part of the delegate underpins as one of the reasons for the visa refusal as stated in the Decision Record as “ At the interview, the applicant demonstrated only a superficial knowledge of the sponsor. For example, she was unable to list any activities or interest s the sponsor enjoyed when he was not working..” –Folio 3  The Visa applicant did in fact tell all that exists, weight lifting and listening to western music, and there was nothing more she could have told him and she was not prepared to lie as she was coached in the previous application. The fact that the sponsor is a home bound young man with limited outdoor or social activities was not seen as a plausible reality in a multicultural society in Australia.

 

  1. In the second last para of Folio 11  the delegate makes only a passing acknowledgment of the existence of arranged marriages in Vietnam, which the delegate says is “acceptable for the purposes of an application such as this’’ but  he dwells in it  no more, to probe fully the characteristics of any such arranged marriage, the customs and the social norms to asses the existence of genuine marital relationship. He chooses  to part, and  on to asses “ if the applicant and the sponsor made an informed decision to marry”.   The  delegate did not have an open mind to explore and probe facts and circumstances that are relevant integers of the claim to the existence of a genuine spousal relationship based on a traditional Vietnamese culture and which would have satisfied the requirements of criteria 309.211, 309.221 and the regulation 1.15A. At the interview the delegate concentrated on the narrow and restrictive application of the Regulation and the Criteria in assessing the  genuine relationship between the parties. He ignored the broader indicators of the marital relationship couched in the Vietnamese customary cultural practices and norms. The decision maker does not appear to have taken cognizant of the similar background and life style that is congruent to the socio-economic background of the parties as indicated by ensuing mode of communication, intermittent physical togetherness through the sponsors visits to Vietnam, and the intensity of the interaction between the couple, especially as both parties were separated temporarily while living in different countries. It is this restrictive and narrow application of the Regulations and the Criteria that has led the delegate to arrive at the negative decision that a genuine marital relationship does not exist between the parties. In the assessment of genuine marital relationship under  the relevant legislations in the context of cultural sensitivity His Honour Justice Wilcox observes in Prasad v Minsiter for Immigration and Ethnic Affairs (1985) ALR 549,


”It is not possible to carry out a proper investigation of such a complex question as
the nature and future prospects of a marriage relationship by conducting one 20 minute interview with each party to the marriage. For most interviews an interview of this kind represents a considerable ordeal. It involves discussing with complete stranger, an official in whose hands one’s future is thought to lie, personal -even intimate – matters. Most people take some time to relax, and to talk freely, in such a situation. Sufficient time has to be allowed for this to occur, the more especially where one or both of the parties is young – Mrs Prasad was still only 20 – or timid…….. I regard it as simply unacceptable that an investigating officer should be asked to form a judgment relating to the genuiness of a marriage by assessing the answers given by nervous and possibly confused people to rushed quiz.”

 

 

  • One of the main grounds for visa refusal was the concern of the delegate of the short time of inception for the marital relationship to be genuine. He draws the conclusion that a commitment to each other could not exist as the parties met only short time ago, and therefore he  determines that the marriage was arranged for the  purpose of visa applicant’s immigration to Australia. This suspicion on the part of the delegate has made all other presenting facts and circumstances surrounding their marriage and the subsequent ongoing spousal relationship has not relevant or  worthy of consideration, thus he became oblivious to all other relevant facts. In the FCA in the case of The Minister of State for Immigration, Local Government and Ethnic Affairs and: Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon No.WAG 26 of 1989 FED No.200 Adminsitrative Law –Presiding Judges Northrop, Wilcox and French  it was observed that the visa applicant “ subjected to a statutory decision is entitled to have the case determined by reference to found facts, not suspicion or conflict of evidence.”  . It was further observed “ It is perfectly possible for parties, or one of them, to enter into a marriage without a genuine intention of living together as man and wife indefinitely and yet, a few months later, for each of them to have that intention.  Although the factors noted by Mr Jolly were such as reasonably to excite some suspicion about the nature of the relationship, they could not determine the critical question.

 

  • The consideration of the often repeated suspicion of “contrived marriages” or “marriage of convenience” arranged for the purpose of enabling a party to obtain a visa to migrate to Australia, as it was in this case,  was put to rest in para 11 of the above “Dhillon”  case in observing that  “people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as ‘community expectations’.  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 as husband and wife to the exclusion of others. Mr Jolly never addressed that question.  Accordingly, it seems to us that he failed to take into account a relevant consideration. Nonetheless, in reality it is the hope of most parents from third world countries with poor circumstances, such as Vietnam or Punjab, for their eligible daughters to marry an eligible bachelor of same cultural background from a developed country , such as Australia or the United States  and emigrate as his genuine spouse. This desire and aspiration does not distract the parties from establishing an ongoing genuine commitment to each other as spouses.

 

  • In the case of the Mas the delegate does  not give proper consideration to such circumstances as the fact the sponsor has spent three and half months out of 10 months with the visa applicant. He further discounts the significance of the “substantial telephone calls from the sponsor to the applicant”,  Folio 3,  The delegate does not appreciate the admission of the sponsor not being able to write in Vietnamese and as result relied on substantial phone calls to maintain the ongoing marital relationship.

 

  • In the consideration of this appeal we ask the Tribunal to give due consideration all the facts and circumstances, including the statements of the various parties, and determine the marriage was genuine and one that is continuing with mutual commitment to each other to the exclusion of  all  other persons to this very day.

 

Thanking the Tribunal  in anticipation.

 

Yours sincerely

Robert K Chelliah

RMA 92-54011


PART B

 

21.0     We have forwarded by courier the main body of our submission with additional documents marked as Folios 1 to 150. These documents should reach your office by the close of office on 30th October 2006, as the date line kindly extended to me. I am now forwarding this additional submission as Part B.  I am also resubmitting the original submission with some grammatical corrections as Part A, paragraphed from 1 to 21.  Please replace the original submission forwarded by courier with Part A. The paragraphs in Part B continues in sequence to Part A commencing with Para # 22.  Any reference to documents still refers to the same Folios of 1 to 150 pages. In this additional submission we will address a few specific grounds upon which the delegate has determined to refuse the grant of the visa.  The delegate in arriving at an opinion whether a married relationship exists between the parties has applied specifically the definitions specified in Regulation 1.15A(3) as a mandatory requirement. He is required to test if a genuine spousal relationship exists between the visa applicants and the sponsor and in doing so he has to consider all the facts and circumstances relating to (a) financial aspects of the relationship, the (b) nature of the household, (c) the social aspects of the relationship and (d) nature of the two persons commitment to each other  and all other relevant indicators of spousal relationship. In the application of the test for genuineness of spousal relationship the decision maker is required to apply the legislation to only  the facts of the case, at the time of the application and at the time of the decision making. The delegate should consider all the facts and circumstances and engage in a balancing exercise of all facts, events and circumstances. In the counterbalancing exercise equal weight should be given to all the facts to arrive at an equitable and fair decision. As in para 15 of our submission, in the cited case of “ Dhillon” the presiding Judges observed in para 10

 

“  It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision.  If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings  adverse to

particular people, if in fact they were the actual findings reached at the time of the decision.  Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts.”

 

  • In regards to (a) financial aspects of the relationship the delegate takes note of 2 money transfer receipts  and says “ However, as the parties live in separate countries, I give this little weight to this factor in my consideration of this application” . These two payments were made on 19/08/2004 and 04/11/2004. In Folio 129   evidence of 5 more subsequent remittances 5 are attached. These excludes sums of money given as cash and gifts to the visa applicant whenever the visited his spouse in Vietnam. We seek the Tribunal give due weigh age to this and view as evidence to show that the genuine marital relationship has endured to this very date in spite of the physical separation and their distress at the trials of their migration application. The Tribunal’s jurisdiction to take into considerations subsequent events, even at time of Tribunal deliberation, is  supported by the observation made in the IRT case of Barbara June BRETAG: IRT Reference V 90/00109 # Number 238 [1991]IRTA 238 (2 August 1991) where The Principal Member Pamela O’Neil and Senior Member Radin observed :

 

“However, the fact that the applicant must satisfy the criterion that the relationship is “genuine and continuing” at the time of application does not mean that the Tribunal cannot have regard to evidence relating to the subsequent history of the relationship, provided that that evidence “tends logically to show the existence or non existence of facts relevant to the issue to be determined” (per Deane J in Minister for Immigration and Ethnic Affairs vs Pochi (1980) 4 ALD 139 at 160).”     

 

  • Though the delegate has given little weight to in his consideration to (b) nature of the household, we seek the Tribunal to consider and give weight to the fact that the sponsor has traveled to Vietnam to meet and be with his spouse on 7 different occasions from June 2004 to June 2006 and he has spent a total of 6 months and 18 days between these two years. The last trip to Vietnam was on the 29th of June 2006 and he returned to Australia on the 2nd of August, 2006. These dates are evidenced in Folio 24 and 27. He lived with his wife in her house during these days.

 

 

  • In the Decision Record, Folio 2, in considering the (c) the social aspects of the relationship, the delegate determines that “ The Decion Record of the applicant’s previous application notes that -there was no social recognition of this relationship. In this application the applicant has attempted to address this concern with the provision of Statutory Declarations (folios 81 and 75). These Statutory Declarations have been submitted by the applicant’s and sponsor’s fathers, who arranged this marriage. As such, I place very limited weight on these Statutory Declarations as evidence of a genuine relationship” . In arriving at this conclusion the delegate has totally discounted the fact that about 200 guests, including important dignitaries of the village attended the engagement/wedding ceremony. This was evidenced in the photographs of the occasion attached to the application. In the statements of the visa applicant and the sponsor, with folio numbers 73,74 and 75  , the attendance of the peer group, friends, relatives and village officials were declared. In this appeal we have attached more photographs of the function (Folios 48 to 52)  and the  Petition of Attestation by witnesses to the ceremony in Folio 59.  The delegate has erred in placing little weight on the Statutory Declarations of the parents as they are the significant elders to the union of the two parties. This view is supported in the case of Tran v Minister for Immigration [2005] FMCA  where in the judgment Connolly FM observes as in Para 16 :

“  The applicant further argued that the Tribunal failed to apply in this regard the relevant policy contained in PAM3 relating to regulation 1.15A(3)(c) which provides:

9.5 Social aspects
Reg 1.15A(3)(c)
Officers may be satisfied on the basis of some or all of the following:

indications that the relationship has been declared to other government bodies and commercial/public institutions and authorities and acceptance of these declarations by thesebodies;
statements of parents, family members, relatives, friends and other interested parties. Statements in the form of statutory declarations are preferred as, under policy, they carry more weight;”  (emphasis added)

            The delegate while accepting the existence of the photos, the official wedding registration, the

wedding ceremony attended by over 200 people , decides not to give any weight to these social

aspects. He has thus erred in not considering all relevant facts in the consideration of the

statutory decision by ignoring relevant facts.

 

  • We have claimed that the delegate has not probed into the relevant aspects of arranged customary marriage but applies the legislation in a narrow and restrictive manner, seeking evidence of commitment to each other as a stylized romance under the norms of a relationship as would be found in an urban lifestyle or in Western cultures in considering the (d) nature of the two persons commitment to each other. Further, the delegate “ does not consider the conception of a child to be proof that the applicant and the sponsor have been in an exclusive and ongoing relationship as spouses. Folio 3. This is in contradiction to the above cited “Tran” case where it was observed that confirmation of a child born to the parentage of the visa applicant and the sponsor is one of the strongest indicative factors or integers that meets the requirement of regulation 1.15A – i.e existence of genuine spousal relationship as asserted by the parties.  At the interview the delegate questions the paternity of the pregnancy  but  does not  take up the offer by the visa applicant to undergo DNA test to clear his doubt. The family has now arranged for a DNA test to be done by an accredited Sydney laboratory, in spite of the heavy cost to the family, with the fear that failure to do so may jeopardize the credibility of their claim and cause the Tribunal to affirm the delegate’s decision, notwithstanding our submission in Para 17.0 item d.  The test result will be ready in about 4 weeks time.

 

  • In this submission we have shown that the sponsor is legally married to the Visa applicant, and collaborative documents:

 

  • shows the marriage is genuine, ongoing, with firm commitment to each other to the exclusion of all others. These evidences taken cumulatively and in relation to each other shows that the marriage was not arranged for the sole purpose of gaining resident status to Australia.
  • The genuine spousal relationship has endured to this day since 2004 in spite of the trials and tribulations during the two years.
  • The sponsor is an Australian citizen.
  • The sponsor has demonstrated care, concern, love and commitment to his wife and his child, as best as he can within his means and with the limitations of the parties separated in two countries. The sponsor returns to his spouse home Vietnam, lives with her and his child regularly. He spends the major part his income to travel to Vietnam and he regularly sends money to the visa applicant. He gives them gifts, baby formula and milk powder, like wise the wife too sends simple gifts to the sponsor. Sponsor and wife speak to each other through phone almost every other day. In various statements they express love for each other with the desperate hope that they would be united and able to live in Australia as a  single family unit.  Their intention to maintain their marital life is beyond any doubt.
  • If the subclass 309 visa is refused the wife with the infant would be permanently separated and forced to live apart in Vietnam with the occasional visit of the sponsor. They would be deprived of the physical love and affection of the sponsor as the father and as the husband.
  • The family would be denied the opportunity to be united and live under the same home as a single family unit.

 

  • Given the above facts, circumstances demonstrated by collaborative evidence we kindly seek the Tribunal to remit the visa application for processing.

 

Thanking you in anticipation.

Yours sincerely

 

Robert K Chelliah

RMA 92-54011


Within 5 minutes the Tribunal made a decision in our clients’ favour.

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