1413375 (MIGRATION)

[2015] AATA 3938

1413375 (MIGRATION) [2015] AATA 3938 (21 DECEMBER 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Patricia Symons

VISA APPLICANT:  Mr Zakaria Benidamou

CASE NUMBER:  1413375

DIBP REFERENCE(S):  OSF2014/013065

MEMBER:Fiona Meagher

DATE21 December 2015

PLACE OF DECISION:  Brisbane

DECISION: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.300.214

·cl.300.215

·cl300.216

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 21 December 2015 at 4:56pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The visa applicant, Mr Benidamou, is currently 39 years old and is a citizen of Morocco. He met the review applicant, Ms Symons, who is currently 63 years of age at the end of 2010, when he started providing business assistance to Ms Symons who was establishing a coffee cart business in Morocco.

2. On 9 April 2014 Mr Benidamou applied to the Department of Immigration (“the department”) for a Prospective Marriage (Temporary) Class TO Subclass 300 visa under section 65 of the Migration Act 1958 (the Act) on the basis of his stated intention to marry Ms Symons.

3. On 9 July 2014 the department delegate refused to grant the visa on the basis that Mr Benidamou did not satisfy cl.300.216 and cl.300.221 of the schedule to the regulations because the delegate was not satisfied that he and Ms Symons genuinely intended to live together as spouses. The delegate was concerned that the parties had not presented themselves as a couple to the family or the wider community, nor had they attended significant events together.  In addition the delegate was of the view that Mr Benidamou did not know substantial information regarding Ms Symons personal circumstances. As well, the delegate was concerned that in two visitor visa applications lodged by Mr Benidamou prior to his lodgement of the prospective marriage visa he did not declare himself as in a committed relationship with Ms Symons.   The delegate regarded that as inconsistent with the parties claims in regard to the nature and duration of their relationship.

4. This is an application for review of that decision. The application was lodged on 4 August 2014.

5. The hearing took place on 14 October 2015. Ms Symons appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Mr Benidamou (in Morocco). The Tribunal also heard evidence from Ms Rachel Miller. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. For the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Prospective Marriage (Temporary) (Class TO) visa is a visa for persons seeking to enter Australia to marry, after their first entry to Australia, an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse with a view to remaining permanently. 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).

8. The relevant primary criteria to be satisfied at the time of application include that:

   ·the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen: cl.300.211;

   ·the parties have met in person since each of them turned 18 and are known to each other personally: cl.300.214;

   ·the parties genuinely intend to marry and intended the marriage will take place within the visa period: cl.300.215; and

   ·the parties genuinely intend to live together as spouses: cl.300.216.

9. Additionally, the parties need to continue to meet these primary criteria at the time of decision: cl.300.221

   Issue 1 – Were the relevant primary criteria satisfied at the time of application on 9 August 2014?

10. The Tribunal found both parties and Ms Miller to be truthful in their evidence and accepts it in full. The parties’ evidence was consistent other than in minor respects which are understandable given the effluxion of time, the anxiety the parties were experiencing regarding the hearing and the use of an interpreter.  In this regard, the Tribunal observes that neither party had the benefit of hearing the other parties’ evidence before they gave evidence. The Tribunal was also satisfied that their evidence was not rehearsed. The Tribunal questioned Mr Benidamou and Ms Symons at length about varying details, including details that had not been raised previously, and is satisfied that their evidence was genuine.

    Does Mr Benidamou intend to marry an eligible person?

11. Ms Symons is an Australian citizen by birth. She has been married three times previously in Australia and been divorced from each of those husbands. In respect of those marriages, the Tribunal has sighted a decree absolute dated 20 March 1981, a decree absolute dated 10 January 1989, and a certificate of divorce dated 9 December 2005. It follows that the requirements of cl.300.211 were met at the time of the visa application.

    Have the parties met in person since turning 18?

12. The Tribunal accepts the evidence of both parties that they met personally for the first time, according to Ms Symons in late 2010 or according to Mr Benidamou in late 2010 or early 2011, at which time Mr Benidamou was 34 and Ms Symons was 58, as is evidenced by the parties’ passports which the Tribunal has sighted. The Tribunal is therefore satisfied that at the time of the application for the visa Mr Benidamou and Ms Symons had each turned 18 and were known to each other personally. It follows that the requirements of cl.300.214 were met at the time of application for the visa.

    Do the parties genuinely intend to marry and intend that the marriage will take place within the visa period?

13. The Tribunal notes (as set out above in paragraph 11) that this will be Ms Symons’ fourth marriage and Mr Benidamou’s first marriage. The Tribunal has sighted a letter dated 9 March 2014 from The Very Reverend Lindsay Howie, Dean of St Paul’s Cathedral Rockhampton referring to “the intended marriage of Patricia Symons to Zachariah Benidamou which hopefully will take place at St Paul’s Anglican Cathedral in Rockhampton on Saturday, 7 June 2014.”  Since the date of that letter Ms Symons has left Rockhampton and moved to Mudjimba at the Sunshine Coast. She has been going to the Salvation Army church in Maroochydore and that is now where the parties will probably marry. Ms Rachel Miller gave similar evidence regarding the likelihood of the parties marrying in that church. Mr Benidamou gave evidence that he did “not find it a problem to marry in a church for Trish”. For him a church is “like a mosque”.  He confirmed that the service had been booked for a year previously, but states that “that won’t work now”. The Tribunal accepts the document and the parties’ oral evidence confirming this intention and is satisfied that the parties had a genuine intention to marry at the time of application for the visa, and satisfy the requirements of cl.300.215(b).  It follows that the requirements of cl.300.215 were met at the time of application for the visa.

    Do the parties genuinely intend to live together as spouses?

14. Clause 300.216 requires that at the time of the making of the visa application ‘the parties genuinely intend to live together as spouses’.

15. ‘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).

16. In considering this visa application, the Tribunal may have regard to the considerations set out in r.1.5A(3) for spousal relationships, that is the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other: r.1.15A(4). Whilst it is not appropriate to consider whether the parties are spouses, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations. The question is what their intentions are after marriage.

    Formation and development of the relationship

17. Ms Symons' evidence was that she went to Morocco originally in 2009 to look for fabric for clothing. While there she noticed the lack of takeaway coffee shops or carts.  She therefore decided to return in 2010, sending over a coffee cart and opening for business on 25 December 2010. Ms Symons further gave evidence that she needed marketing material to support the business and approached Mr Benidamou’s father, who owns a printing business, for that purpose. Through that Ms Symons met Mr Benidamou and they managed to communicate using Mr Benidamou’s limited English and Ms Symons’ limited French. Ms Symons gave evidence that they went out formally together for the first time on 9 November 2010.  Ms Symons explained that she remembered the date because after they had gone out and the relationship had started, she looked back on her calendar and “noted the date for evermore”.  She told the Tribunal that she and Mr Benidamou went to a beachfront restaurant and “felt a deep connection”.  She invited Mr Benidamou back to her apartment and thereafter they were virtually inseparable, with Mr Benidamou going home only to get clean clothes. Ms Symons explained that this sort of relationship was frowned upon and indeed could be risky in Morocco so she had to change accommodation to find somewhere “where the concierge would turn a blind eye to their coming and going”.

18. Mr Benidamou gave similar evidence, confirming that the parties got to know one another through the printing work and developed a romantic relationship which commenced at the restaurant on the beach. Mr Benidamou also told the Tribunal that he stayed over around five times per week and lived with Ms Symons for a whole year. Both parties gave consistent evidence that they went out rarely as they could really only go to touristy places and take care not to be obviously together as the relationship was frowned upon by Mr Benidamou’s family and culture. Ms Symons’ friends from the Christian church at which she worshipped also disapproved of the relationship.

19. Ms Symons’ evidence was that Mr Benidamou supported her through some very tough times in Morocco. She became very unwell with a disfiguring virus in her eyes and Mr Benidamou  took very good care of her. She also gave evidence that he assisted her when the business ran into financial trouble and she needed to consolidate her losses and leave Morocco.

20. Ms Symons told the Tribunal that she was attracted to Mr Benidamou because he is “a very handsome man” with a “very quiet and calm manner”.  She explained that Mr Benidamou preferred a European outlook and did not wish to marry a young girl who gives a man sex to get money. Ms Symons said that Mr Benidamou is very kind and gentle. Mr Benidamou gave evidence that he was attracted to Ms Symons because “she understood my circumstances and personality and vice versa”.  Mr Benidamou also gave evidence that he does not see the age difference between them as a problem.  He said that although people in Morocco talk about it he does not feel that mentally or physically there is a difference , in his opinion “love does not have an age”. 

21. Ms Symons said that the parties first talked about marriage when it became obvious that she had to leave Morocco. Mr Benidamou first said that he decided to marry Ms Symons “when she came back at the end of 2014 after four years which was proof of how much she loved me”.  However later in the hearing Mr Benidamou said that the parties had talked about marriage a year ago and he was aware that Ms Symons had booked a service. That conversation would have predated Ms Symons return to Morocco at the end of 2014. Ms Symons wrote to the Tribunal after the hearing explaining that Mr Benidamou had not understood the Tribunal’s question, that the parties had agreed that they need to be together when she left Morocco in February 2012 and that Mr Benidamou had responded to the Tribunal’s question that way “because of my return to Morocco and our attempts to marry, he knew for sure how much I loved him and that I am surely the ‘one’ destined to be with him”. The Tribunal places no weight on the minor inconsistencies as to the parties’ initial decisions to marry. The Tribunal does so in light of the fact that it accepts minor discrepancies in memory will occur with the effluxion of time, both parties might have first thought about marriage at differing times, and that Mr Benidamou’s answers may have been influenced by being given through an interpreter.

22. Having considered all of these matters, the Tribunal considers the history of the formation and development of the relationship of the parties to be plausible.

    Financial aspects of the relationship

23. The parties have not established shared financial resources. They have been living in different countries and are not yet married. They have had little opportunity to combine their finances or purchase property or assets. In these circumstances the Tribunal would consider it unreasonable to place significant weight on the lack of shared financial interest.

    The nature of the household

24. The Tribunal accept the parties started a relationship in November 2010 and that they stayed together many nights per week to the extent possible within the culture of Morocco.

25. The Tribunal accepts that on many evenings the parties “stayed in and drank wine and enjoyed each other’s company” as stated by Ms Symons in her evidence.  Given the limited opportunity the parties have had to be in the same country, and given that the parties are not yet married, it is understandable that they have not established a household together. However the Tribunal accepts that they did stay together while Ms Symons was in Morocco. The Tribunal also accepts the parties stayed together when Ms Symons went back to Morocco in December 2014 and that they intend to live together in the unit Ms Symons rents at Mudjimba.  The Tribunal accepts these plans are genuine and consistent with the parties having an intention to live together as spouses.

26. The Tribunal notes that the delegate noted that no documentary evidence was provided that the parties lived together, but that he or she accepted that such evidence might have been difficult to obtain under the circumstances and gave little weight to the lack of such evidence. The Tribunal similarly gives little weight to that lack of evidence in this situation.

    The social aspects of the relationship

27. The Tribunal notes that the delegate was not satisfied that the parties represented themselves as a couple to friends, family or the wider community. In particular the delegate gave the lack of family interaction significant weight in his or her decision given the importance of family approval of relationships in Moroccan culture. The delegate also noted that Ms Symons had not wish to attend is social events with Mr Ben ado’s family or at his home.

28. During the hearing the parties explained the situation as follows - Ms Symons explained that she was loath to attend family social functions with Mr Benidamou as she knew his father from their business dealings and knew that he disapproved of relationships between Muslims and non-Muslims. However she did meet some of Mr Benidamou’s friends who were more accepting. Ms Symons further gave evidence that when she and Mr Benidamou went out together they were careful to go to touristy places so they would not stand out as a couple. She also gave evidence that Mr Benidamou wanted to attend one of her Christian church services particularly to hear her sing but felt constrained from doing so because he is aware of the consequences for a Muslim caught attending a Christian church in Morocco.  Ms Symons also stated that she did not make her relationship with Mr Benidamou known to her Christian’s friends as they would have disapproved of her having a Muslim lover. Mr Benidamou gave evidence that Ms Symons met some of his friends and a brother and sister during her first visit. Ms Symons then wrote to the Tribunal explaining that Mr Benidamou had reminded her that she had met his brother and sister soon after starting to do business with the family printing business, but that due to her poor grasp of the language at the time and the number of people she was meeting she did not realise who they were.

29. Three statutory declarations, drafted similarly, and supporting the existence of the relationship were submitted by a friend and two of Ms Symons sons. Those statutory declarations confirm that Ms Symons consistently told the declarants of the existence of the relationship over a long period of time. The delegate in his or her decision was concerned regarding the wording of the declarations as they were similar and did “not provide any substantive information as to why they consider the relationship to be a genuine one”.  The delegate went on to state “Given this, I give little weight to these declarations as evidence of a committed and genuine relationship.”  Ms Symons explained that the wording of the declarations was similar because that was what the department asked for. The Tribunal considers the statutory declarations support the length of the relationship and accordingly gives them weight, and has no difficulty with the fact that they are to some extent consistently worded.

30. The Tribunal notes the delegate’s concerns regarding the dearth of photographs of the couple at social functions. The Tribunal accepts the explanations of Ms Symons in that regard - first that they deliberately attended few functions together, secondly that her mobile phone containing photos were stolen prior to the time of application and thirdly that a former friend of Mr Benidamou’s, who had taken a few photographs of the parties together at social gatherings was no longer on good terms with Mr Benidamou and therefore they had been unable to get copies of those photographs from him.

31. The delegate also expressed concerns regarding Mr Benidamou’s knowledge of Ms Symons’ circumstances in Australia. The delegate was concerned that Mr Benidamou was unsure of the ages of Ms Symons’ children and got them muddled up with her grandchildren. The Tribunal accepts Ms Symons’ submission that there are so many children (and their various partners, and in some cases previous partners), and grandchildren from her previous three marriages that the details are confusing. The Tribunal places little weight on those minor discrepancies.

32. Taking all the evidence together, the Tribunal accepts that the parties had presented themselves as a couple to the extent they felt comfortable to do so given the cultural environment in which they were living, as at the date of application for the visa.

    The nature of the persons’ commitment to each other

33. The Tribunal accepts that there has been extensive communication between the parties by telephone or Skype. The Tribunal sighted photographs of the face of Ms Symons’ telephone showing multiple calls and messages between her and Mr Benidamou throughout 2013, 2014 and 2015. The Tribunal further accepts that other communications have not been able to be evidenced, but that those which have represent an indicative selection of the extensive nature of the communications between the parties consistent with the parties claimed intention to live together as spouses.

1. The Tribunal notes the parties have had extensive discussions about Mr Benidamou’s occupation in Australia if he succeeds in obtaining his visa. The parties gave consistent evidence regarding a potential bull semen export business from Australia to Morocco and the possibility of importing and selling Moroccan leather goods. As well, Ms Symons gave evidence that Mr Benidamou could work as a hairdresser (his trade), and that they were also considering importing argan oil.

2. The Tribunal questioned the parties about Mr Benidamou’s attitude to having children. Ms Symons stated that Mr Benidamou is sure he does not want children and that his siblings have five children between them so he is under no pressure to have children. Mr Benevento’s evidence was that he has “stopped thinking about children; all I want is a quiet life”.

3. The Tribunal notes the delegate’s concerns with respect to some aspects of the relationship, However the Tribunal has had the benefit of more evidence than that which was before the delegate, and been able to undertake detailed questioning of both parties, rather than just the visa applicant. The Tribunal was impressed with the each parties’ knowledge of the others current circumstances and their consistent intentions after marriage. The Tribunal is satisfied that the parties’ intention after marriage is to live together as spouses.

4. Having had regard to all of these matters, the Tribunal is satisfied that the parties had a genuine intention to live together as spouses at the time of the visa application on 9 April 2014. It follows that the requirements of cl.300.216 were met at the time of the visa application.

   Issue 2 - Do the parties continue to meet time of application requirements at the time of decision?

5. The Tribunal accepts that the parties previously planned wedding could not proceed on 7 June 2014. The Tribunal further accepts that the parties currently intend to marry at the Salvation Army church at Maroochydore if Mr Benidamou is granted the visa.

6. The Tribunal had the benefit of evidence not before the delegate relating to a trip made by Ms Symons to be with Mr Benidamou in December 2014. Ms Symons gave evidence that she had been apprehensive about returning to Morocco because she had previously left bad debts and that had deterred her from returning. However after waiting so long she decided to return in December 2014 to be with Mr Benidamou.  Despite being beset by difficulties at the beginning of the trip, Ms Symons stayed with Mr Benidamou, met his mother and other relatives as evidenced by photographs sighted by the Tribunal and had some preliminary discussions regarding potential trading opportunities with Morocco in regards to the bull semen business.

7. The Tribunal is satisfied that the parties continued to meet cl.300.211, cl.300.214, cl.300.215 and cl.300.216 at the time of decision. It follows that the requirements of cl.300.216 are met at the time of decision.

   Conclusion

8. 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

9. 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.300.214

   ·cl.300.215

   ·cl.300.216

   ·cl.300.221 of Schedule 2 to the Regulations

   Fiona Meagher
   Member