1411276 (Migration) - [2015] AATA 3214

1411276 (Migration) [2015] AATA 3214 (23 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mervyn Louis Lane
VISA APPLICANTS:  Ms Sakorn SOK
Master Savuth Nget
CASE NUMBER:  1411276
DIBP REFERENCE(S):  OSF2013/088976
MEMBER:Catherine Carney-Orsborn
DATE:23 July 2015
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.300.216 of Schedule 2 to the Regulations; and
·cl.300.221 of Schedule 2 to the Regulations
·The proper course is to remit the  application for consideration whether the other criteria are met by the first and second named visa applicants.

Statement made on 23 July 2015 at 3:47pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicants applied for the visas on 28 March 2013. 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 cl.300.216 and cl.300.221.
The delegate refused to grant the visas on 5 May 2014 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 on the evidence of a genuine intention to be in a genuine and continuing relationship with each other.
The review applicant appeared before the Tribunal on 15 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the review applicant’s daughter and the person who introduced the parties. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the parties have a genuine intention to marry and live together as spouses within the meaning of cl.300.216.
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. The Tribunal has before it evidence of the review applicant’s identity and status. The Tribunal is satisfied that he is an Australian…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1411276 (Migration)

Details

AGLC: 1411276 (Migration) [2015] AATA 3214
Case: [2015] AATA 3214
Decision Date: 23 July 2015

CaseChat Overview and Summary

The Tribunal was presented with a case involving a review applicant seeking a Prospective Marriage (Temporary) (Class TO) visa, and a visa applicant who is an Australian citizen. The central issue before the Tribunal was whether the parties had a genuine intention to marry and live together as spouses, as required under clause 300.216. The Tribunal was required to determine if the parties met the criteria stipulated by the Migration Act and Regulations, including the genuine intention to marry within the visa period, and the intention to live together as spouses.

The legal issues the Tribunal addressed included whether the parties had met and were known to each other personally, as required by clause 300.214. The Tribunal also examined if the parties had a genuine intention to marry within the visa period, as stipulated by clause 300.215. Additionally, the Tribunal assessed whether the parties genuinely intended to live together as spouses, in accordance with clause 300.216. The Tribunal considered various pieces of evidence, including movement records, statements from friends and family, photographs, and evidence of planning a wedding.

After considering all the evidence, the Tribunal concluded that the parties had met and were known to each other personally, satisfying the requirements of clause 300.214. Furthermore, the Tribunal found that the parties had a genuine intention to marry and that the marriage was intended to take place within the visa period, fulfilling the requirements of clause 300.215. However, the Tribunal determined that the evidence did not sufficiently demonstrate that the parties genuinely intended to live together as spouses within the meaning of clause 300.216. Given these findings, the Tribunal decided to remit the application for reconsideration by the Minister, with specific directions regarding the remaining criteria for a Subclass 300 visa.

The Tribunal's final orders were to remit the application for a Prospective Marriage (Temporary) (Class TO) visa to the Minister for reconsideration. The Tribunal directed that the first named visa applicant meets the criteria of clause 300.216 and clause 300.221 of Schedule 2 to the Regulations. The Minister was instructed to consider whether the other criteria for a Subclass 300 visa were met by both the first and second named visa applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the parties have a genuine intention to marry and live together as spouses within the meaning of cl.300.216. 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. The Tribunal has before it evidence of the review applicant’s identity and status. The Tribunal is satisfied that he is an Australian citizen. Clause 300.214 requires that at the time of application the parties have met and are known to each other personally. This requires the parties to have come together in each other’s company or physical presence: MIAC v Yucesan (2008) 169 FCR 202. The Tribunal has considered all the evidence before it. The Tribunal has movement records which indicate that the review applicant has spent a considerable amount of time in Cambodia. The review applicant has been to Cambodia to visit the visa applicant five times since October 2012. The Tribunal has considered the large amount of evidence which was provided to the Tribunal by the review applicant. The Tribunal has considered the statements of friends, family and photographs. The Tribunal is satisfied the parties have met and are known to each other personally. Accordingly, the Tribunal finds that the requirements of cl.300.214 are met. 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. The review applicant provided including advertisements in newspapers, evidence of a religious ceremony in Cambodia, application to register a civil partnership and other evidences of planning a wedding. 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 is within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met. 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 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.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.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.300.216 of Schedule 2 to the Regulations; and·cl.300.221 of Schedule 2 to the Regulations·The proper course is to remit the application for consideration whether the other criteria are met by the first and second named visa applicants.Catherine Carney-OrsbornMember

Ratio Decidendi

Legal Principle Established

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