1415425 (Migration)

[2015] AATA 3562

1415425 (Migration) [2015] AATA 3562 (30 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Shuping Liao

VISA APPLICANTS:  Mr Yuming Yu
Miss Jiamei Yu

CASE NUMBER:  1415425

DIBP REFERENCE(S):  OSF2014/023661

MEMBER:Ian Garnham

DATE:30 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 30 October 2015 at 10:20am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. The visa applicants applied for the visas on 9 May 2014. 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 a requirement that the parties intend to live together as spouses.

3. The delegate refused to grant the visas on 11 August 2014 on the basis that the first named visa applicant did not satisfy cl.300.211, 300.216 and 300.221 of Schedule 2 to the Regulations because they were not satisfied that the parties genuinely intended to live together as spouses.

4. The review applicant appeared before the Tribunal on 18 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone and a witness, Mr Yutong Yu in person.    Mr Yutong Yu is the brother of the review applicant, Mr Yuming Yu.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the relationship is genuine and committed and whether the review applicant and visa applicant genuinely intend to marry and live together as spouses.

Does the visa applicant intend to marry an eligible person?

1. 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.  

2. The review applicant (24/03/1989) is 26 years old and was born in Zhejiang, China.  The review applicant migrated to Australia with her parents on 18 July 2004 and is a permanent resident.  The review applicant has consistently stated that she has not previously been married or in a de facto relationship.

3. The visa applicant (03/05/1979) is 36 years old and was born in Fuqing City, China.  The visa applicant married Lixia Shang (27/07/1985) in 2006 and the couple divorced on 30 April 2009.  There is one child of the relationship, Miss Jiamei Yu (13/10/2006), who is the sole secondary applicant in this matter.  The visa applicant has provided documentary evidence attesting that these events occurred.

4. Accordingly, I am satisfied that the requirements of cl.300.211 are met. 

Do the parties genuinely intend to marry?

1. 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 nine month visa period.  At the time of application, 9 May 2014, the review applicant submitted a letter from an authorized civil marriage celebrant dated 16/04/2014 acknowledging that they had been told that the parties intended to marry on 20 January 2015.     

2. The Tribunal recognises that, of itself, this document does not prove that the parties genuinely intend to marry.  Nevertheless, it does demonstrate that the review applicant has expressed that intention in preparation for the event to occur within the 9 month visa period.

3. The Tribunal accepts that at the time of application the parties had a genuine intention to marry and the requirements of cl.300.215 are met.

Are other, time of application, criteria satisfied?

1. Based on the documentary evidence contained in the Department’s file the Tribunal is satisfied that the review applicant is not a woman prohibited from sponsoring the visa applicant.  The requirement of cl.300.212 is met.

2. Based on the documentary evidence contained in the Department’s file, including the visa applicant’s passport and other official documents, the Tribunal is satisfied that the applicant is greater than 18 years old.  The requirement of cl.300.212A is met.

3. The Tribunal is also satisfied that the visa applicant is sponsored by the review applicant who is the prospective spouse.  The Tribunal is also satisfied based on the documentary evidence provided and her appearance that the review applicant is greater than 18 years old. Therefore the requirement of cl.300.213 is met.

4. The Tribunal is satisfied based on the photographic evidence provided and the Department’s movement record of the review applicant that the parties have met since they both turned 18 and are personally known to each other.  The requirement of cl.300.214 is met.

Do the parties genuinely intend to live together?

1. 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.

2. The Visa Officer who assessed the application was not satisfied that the parties genuinely intended to live together as spouses because the parties had no knowledge of the others friendship groups and the review applicant’s family had not been told of the parties’ intention to marry.  In addition, they found the parties; were unable to provide detailed information about their engagement party, and the communication between the parties provided; is superficial and not representative of parties that are in a genuine spousal relationship.

3. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal has considered the following evidence and made findings where indicated. 

4. At the hearing, the parties provided further documentary evidence to the Tribunal which included; various photographs of the parties together (3) and together with other persons (3) taken during the review applicant’s visit to China in 2015, the review applicant’s phone records of calls made to the visa applicant in the period; 02/02/14 to 03/08/15 and 5 untranslated documents in the Chinese language.  This evidence comprising these untranslated documents was the subject of a post hearing written invitation to the applicant pursuant to section 359A of the Act.

Preliminary Issues:

1. At the hearing the review applicant stated that she was aggrieved because the Case Officer had stated in their notes that the parties were married not engaged.  They also stated that the Case Officer in the Decision Record they had interviewed Mr XUE Qun regarding the relationship.  The review applicant maintains this is incorrect and Mr XUE was not interviewed.  The Tribunal has attached no weight to these issues in making its decision.    

Review applicant’s background: 

1. The review applicant who migrated to Australia in mid-2004 has worked as a hairdresser at the same business since she left school in 2008.  For all of that time she has worked with the brother of the visa applicant. 

2. The review applicant currently lives alone in the house of her parents.  Up until recently her older sister and family (husband plus two children) also lived in the 5 bedroom house but they have moved out recently to reside closer to the business that they own.  The review applicant’s parents live primarily in China but return to and live in Australia in this house to maintain their permanent residence status.

3. The review applicant has consistently claimed that she has had no previous relationships.

Visa applicant’s background:

1. The visa applicant was previously married to Shang Lixia (27/07/85) and they have a child, Ms Jiamei Liao (13/10/06) who is the secondary applicant for this application. The visa applicant claims to have had no further significant relationships.  

Commencement and development of the relationship:  

1. Despite working with and maintaining a friendship with the visa applicant’s brother for approximately 7 years, the review applicant claims that she first learned of the existence of the visa applicant in August 2013.  The review applicant has consistently stated she was out dining with the visa applicant’s brother at a restaurant in Chinatown when she met the visa applicant for the first time.  The review applicant stated that her friend (and the witness at the hearing) contacted his brother (the visa applicant) while at the restaurant and the parties spoke to each other via web cam (face time) for about 20 minutes.

2. The witness (visa applicant’s brother) stated that despite being friendly with the review applicant for seven years he did not tell the review applicant he had a brother in China, in any context, until 5 years had elapsed.  When it was put to him that this was unusual to have not previously discussed a family member, with whom he is close, with his friend, he said the visa applicant was divorced in 2009 and it was not until August 2013 at dinner on this night, that he realised the parties may be suited to one another because his brother was now divorced and single. 

3. The introduction of the parties to this review, as described above, while plausible, in combination with other concerns outlined in this decision, leads the Tribunal to not find the parties account convincing.  Despite the review applicant saying she had no friends, both she and the witness said they have been friends since they met at their employment in 2008.   For the witness not to have told the review applicant about his eligible brother, the visa applicant, during the course of everyday interaction in the preceding years is surprising.  The witness said he travels to China often and sees his brother and other family members.

4. Nevertheless the review applicant reiterated at the hearing that this was the first time that she learned that her friend had a brother.  The review applicant stated that following this initial contact, she decided she was interested in the visa applicant and decided to keep in touch with him.  The visa applicant called the review applicant 1-2 days after the initial contact and they continued phone contact after that time.  It is claimed that first this was by a chat line and from 2 February 2014 voice contact by mobile phone has been used.  The review applicant concurred that the relationship had developed in this way.

5. The review applicant travelled by herself to China on 12 December 2013 and first went to visit her parents and family in her hometown of Wenzhou.  She then travelled to Fuqing (about 3 hours train travel) to personally meet with the visa applicant for the first time. 

6. The review applicant states she was met at the train station by the visa applicant, they then went for lunch at a restaurant where she ate a steak.  The visa applicant recalled that they went to a buffet style restaurant. 

7. Following lunch, the review applicant went to a hotel that had been booked for the review applicant by the visa applicant.  She stayed there alone for 5 days.  Neither party could tell the Tribunal which hotel the visa applicant stayed in.   

8. The review applicant said that on the first day she left her luggage at the hotel and then they went for dinner together at a restaurant with the visa applicant’s family including his mother, sister, cousins and his daughter.  The visa applicant confirmed that these people were present at this meal.

9. For the rest of this first stay the visa applicant showed her around the city taking in the tourist areas.  They ate out together for most of the rest of this first trip but sometimes they had lunch with the visa applicant’s mother and sister.  A couple of times they ate the evening meal with a couple of his friends.  They did not discuss engagement during this visit according to the review applicant.  When leaving Fuqing the visa applicant (and a cousin called Yu) dropped the review applicant at the train station.

The engagement proposal:

1. The review applicant said that during this period (after she returned to Australia) she did not make any decision about furthering the relationship.  The review applicant said that upon returning to Melbourne on 2 January 2014, they continued communicating by phone.  Whereas the visa applicant said that they had decided to enter a committed relationship before she left China on this first occasion.

2. The review applicant said that the visa applicant proposed to her in February 2014. The review applicant stated that she thought about this proposal for about a week and on 14 February 2014 (Valentines day) he asked her again and she agreed to marry him on this day. 

3. The visa applicant said that he proposed to the review applicant on Valentines day and she agreed to marry him 6 days later on 20 February 2014.

4. I note that the two parties’ recollections of these events regarding the proposal and acceptance of marriage are significantly different.  While I acknowledge that with the passing of time parties’ recollections of the timing of events will differ, I also acknowledge that the review applicant has treated the engagement as a highly significant event in her life and it would be unusual in those circumstances for the parties to recall the sequence of events differently.  

5. I am minded to place weight on the parties’ differing accounts of what would have been a momentous occasion, particularly for the review applicant who has never married.   

The engagement:

1. On 26 February 2014 the review applicant returned to China and went straight to Fuqing City and stayed at the visa applicant’s parent’s house, alone in her own room until they were engaged on 8 March 2014 and from then she shared the room with the visa applicant.

2. The review applicant claims that no document was provided to attest to the engagement occurring on 8 March 2014.  The review applicant stated on the day of the engagement they went to the studio where they hired clothes and the studio photographs were taken.  This process took about 3 hours and then they had their engagement party later on the same day at a restaurant. 

3. The visa applicant said that on the day of the engagement photographs they attended at the studio and the photographs were taken.  He said the actual engagement party was conducted some days later, but was not on the same day as the photographs were taken.

4. The photographic evidence that the parties provided supports the version provided by the visa applicant and is incongruous with the version provided by the review applicant.  In the studio photographs, both parties’ hairstyles and lengths are significantly different, in particular, the visa applicant’s hair is much shorter in the studio photographs.  In addition, the visa applicant’s shirt is clearly different as well.  

5. The review applicant claims that she did not advise any members of her family about this trip to China for her engagement.  All of her family members are unaware that she made this trip and are still unaware that she plans to marry the visa applicant.  I consider it unlikely that the review applicant, while living at the home of her parents, with her sister and her family, while her parents are living in China, could go off to China and secretively get engaged without any of the family members becoming aware.  The Tribunal also questions why the review applicant has been so secretive about the relationship.    

The review applicant’s subsequent trip to China: 

1. The review applicant again travelled to China on 25 January 2015.  On this trip she first travelled to Wenzhou and visited her parents for about a week and then travelled to Fuqing City to see her fiancé.  This time the review applicant stayed with the visa applicant in his room for about 3 weeks.  She returned to the home of her parents for a short time before departing China.  The review applicant claims that she explained her absence to her parents by saying that she was just going travelling around with her friends.  Because the review applicant is Chinese she is not required to complete travel or registration documents.

2. The review applicant said that she did interact with the visa applicant’s daughter, Jiamei, during this visit and that Jiamei is not included in any of the photographs because she was in school when all of the photographs were taken.  The review applicant said that on 3 or 4 days of each week the review applicant was there, Jiamei slept at the home of the visa applicant so that they could become more comfortable with each other.

3. The photographic evidence confirms that the parties did spend some time together during this trip, including with members of visa applicant’s family.  However I consider it curious that if the parties were spending this much time together that none of the photographs include Jimaei.  The review applicant said that this is because when the photographs were taken Jimaei was in school.  I find this reason somewhat incongruous with her earlier statement that Jiamei spent more time with her father during this period so that the review applicant could get to know her. 

4. Nevertheless the Tribunal has had regard to all the photographic evidence of the parties but has noted that all photographs were taken in controlled situations which are easy to arrange.  Given the Tribunal’s concerns with the evidence as a whole, it does not find the photographic evidence to be a spontaneous or persuasive demonstration of two persons about to embark on a lifelong cohabitation together.  Accordingly, the Tribunal places limited weight on the photographic evidence.

Financial matters:

1. The review applicant and the visa applicant are both hairdressers and both stated that they intend to begin a hairdressing salon in Australia.  The visa applicant said that he has moderate savings that he will contribute towards this business.  He also said that he has not sought to come to Australia as a tourist so that he can save money to put into the business.

2. The review applicant said that she has saved approximately $10,000 to contribute towards this business.  The review applicant does not know how much money the visa applicant has to contribute towards the proposed business venture, as the parties have not discussed this issue.          

3. The review applicant currently earns $500 to $600 per week whereas the visa applicant earns about 5,000 Yuan per month (approximately $1,100 Australian dollars).  The review applicant claims that they have discussed each other’s earnings because they are planning to marry but have not discussed each other’s savings.

1. It is clear that the parties have discussed establishing a hair salon business and the review applicant claims to have a considerable sum of money to contribute towards this venture.  In addition, the plan to live independently and then, when married establish their own home has also been discussed.  However, only limited weight has been attached to these commonalities of evidence.    

2. All of the common information they have provided on financial matters is superficial and unsupported.  There is no indication that the parties have considered or discussed the broader financial issues associated with establishing and caring for a family that includes a young child in an independent household.  The evidence provided lacks any detail and does not necessarily indicate a genuine intention to pool financial resources as a family.   

The nature of the household:

1. The visa applicant currently lives with his family.  His 8 year old daughter lives with her mother’s parents but comes to visit the visa applicant and his family on weekends.  The visa applicant told the Tribunal that under Chinese law he has full custody of his daughter but she currently lives with his ex-wife and her family because she has access to a better school in that city.

2. The visa applicant said that when his former wife and he divorced he obtained full custody of Jiamei and his ex-wife has no rights in respect to her welfare or living arrangements.  Therefore he has no reason to discuss any matters concerning Jiamei’s welfare or upbringing with his ex-wife.    

3. The review applicant currently lives in her parent’s house rent free on her own.  The review applicant said that the plan is that initially the visa applicant and his daughter will live with his brother as Jiamei will need to go to school near there before they establish a home together somewhere else.

4. The visa applicant’s brother currently lives a significant distance from the review applicant’s home. I find it unusual that the parties have made no enquiries in respect to the availability of schools for Jiamei to attend in either of these areas.  In Victoria, suitable school placements are not necessarily locally available, especially for a nine year old migrant girl.

5. While the Tribunal appreciates that the secondary applicant’s education may be a factor in where the visa applicant lives, I find it incongruous with two parties about to enter into a lifelong commitment to living together, to have provided limited evidence that eventually they will be together as spouses as defined.  

6. In my view, very little, if any, genuine and realistic planning has been discussed by the applicants regarding them establishing a household in a spousal relationship, which includes the secondary applicant.  It is a requirement of the visa that the parties marry within nine months.  During this intervening period, the review applicant and visa applicant must tell the review applicant’s family that they are engaged and are soon to be married.  The review applicant has said that her parents are old fashioned and will not approve of the marriage because the visa applicant has previously married and has a child.  Presuming the review applicant is allowed to stay in her parent’s home, once they are told of the pending marriage, they will need to find their own house to rent in whereabouts unknown, possibly involving the relocation of Jiamei’s schooling.  No planning has been made as to the usefulness of living close to other family members who are able to assist with, or available after school care centres, with respect to the care needs of Jimaei during extended hair saloon hours.

7. The unconvincing evidence given about why the parties do not intend to live together on arrival of the visa applicant, together with other concerns had by me, lead me to not be satisfied that the parties genuinely intend to marry and live together as spouses within the meaning of s.5F.          

Social aspects of the relationship:

1. The parties gave evidence that they have communicated every 2-3 days throughout the relationship.  The parties have previously provided on-line chatting records and mobile phone records.  I note that the Visa Officer found the communication to be …superficial and not representative of parties that are in a genuine spousal relationship.   For this review the review applicant has also provided mobile phone records demonstrating the parties’ phone conversations in the period; 02/02/15 - 03/08/15 for a duration in excess of 75 hours.  However, I am not satisfied that all of this time can be ascribed to communication between the parties.  This is because the parties did not demonstrate knowledge of each other and their affairs that is commensurate with this level of communication.     

2. The review applicant said that the visa applicant’s daughter came to live with her father after school on all of the five days of her first visit in order that they get to know one another better.  The review applicant believes the visa applicant’s child will be fine living in Australia because she currently regularly sees her father on weekends and will then see him on weekdays after school and also it will be possible for the child to continue to communicate with her mother by Skype.

3. The Tribunal has concerns that there is no evidence that the parties have considered the psychological impact that it would have on Jiamei to remove her from her mother, grandparents and school if she were to come to Australia to ultimately live with her father and the review applicant.  When this concept was raised with parties’ their responses were perfunctory and dismissive.

4. The review applicant said that she has not told her parents or any of her family about the engagement or her intention to marry the visa applicant.  Her parents are old fashioned and traditional and have told her in the past they would not allow her to marry someone who has been married and divorced or who has had a child, such as the visa applicant.

5. The review applicant does not plan to tell her family of her engagement or intention to marry until the visa applicant comes to Australia.  The parties’ current intention is that when the visa applicant comes to Australia they will marry as soon as possible, after the review applicant has told her family about the relationship.  The visa applicant said that he intends discussing the marriage plans with the review applicant’s family when he comes to Australia and that he will make them agree to the marriage.

6. The review applicant also said she has not told any friends who live in Australia that she is engaged to marry the visa applicant because she does not have any friends, all she does is works and stays at home.

7. The review applicant said that the visa applicant has not felt a need to come to Australia or even attempt to come to Australia as a tourist because he has had regular communication with his brother who has extensive experience living in Melbourne along with many other friends who have migrated from Fuqing City.

8. The visa applicant does not think it is necessary for him to come to Australia before because it is difficult to get a travel visa to Australia and if he is able to save more money it will enable them to have a bigger wedding.

9. I consider it highly unlikely that if the parties were genuinely planning a committed married life together that the review applicant would have told no other person (other than the visa applicant’s brother) about this relationship and her intentions.  Other than the visa applicant’s brother, the parties have not produced one further person who can attest to the genuineness of this relationship. 

10. I am not satisfied, based on the stated dearth of social knowledge about this relationship that the parties genuinely intend to commit to a shared life as husband and wife to the exclusion of all others.

11. I also find the review applicant’s explanation about why she has not told her parents unconvincing.  I am not satisfied that the motive for concealing the relationship is not because the parties do not genuinely intend to marry and live together as spouses.

Commitment to each other:

1. In terms of the witness at the hearing, who is the brother of the visa applicant, I found that he was able to shed little light on the everyday operation of the parties’ relationship.  I have therefore placed little weight on his testimony.

2. The visa applicant said he has not met or sought to meet the review applicant’s family because the review applicant will not allow it.

3. The review applicant said she does not want to get married in China because she does not like China.  She also stated she does not like Chinese because they are not honest or direct in their communications.  The review applicant also stated that the visa applicant would be indifferent to doing this and would marry her in either China or Australia.  This is a curious statement to be made by the review applicant given her friend and witness (and brother of her fiancée) and her fiancée as well as her family are all Chinese.

4. The review applicant claims that she has not thought about the visa applicant coming to Australia as a tourist because she has to travel to China anyway to visit family and friends whereas it would cost more money for the visa applicant to visit Australia.  In addition the visa applicant has a good understanding of life in Australia due to the communication with his brother.

5. The review applicant said that it does not matter what income and assets the visa applicant brings to the marriage as long as he works hard to support the family.  If the visa applicant were to become ill and was unable to work, they could live on his savings which he must bring because this is a requirement for the visa to be granted.

6. Once again, aside from the one witness the only persons who are able to attest to the genuineness of the parties’ commitment to their relationship, is the parties themselves. The Tribunal remains unsatisfied about the reasons given for why they are not being transparent with family and community about the relationship. 

7. Due to the lack of any objective evidence I am not satisfied that the parties have demonstrated a mutual commitment to a shared life as husband and wife.

Post hearing submissions

1. The Tribunal requested further information regarding five untranslated documents that were provided at hearing, as discussed at paragraph pursuant to s.359A of the Act.  No further information was provided by the review applicant and therefore no weight was placed on this as evidence of their genuine intention to marry.     

2. Significant inconsistencies between the parties evidence exist in this case as outlined above.  Three significant inconsistencies were referred to the review applicant after the hearing pursuant to s.359AA of the Act on 10 September 2015.  The review applicant provided a response dated 24 February 2015.

• The inconsistencies regarding the parties’ evidence as to the photographs taken in the studio and at the party and the occurrence of those events (as set out at paragraphs 43-44) were explained.  In response the review applicant said that the visa applicant’s evidence was incorrect, because he was confused.  For the reasons set out in those paragraphs I do not consider the visa applicant’s version of events was incorrect and consider it is much more likely to be accurate.     The Tribunal finds that these photographs could not have been taken on the same day and the sequence of events could not be as stated by the review applicant.  I also find the review applicant’s evidence on this point to be untruthful and false.

• The inconsistencies regarding the parties’ evidence as to the sequence of events around the marriage proposal and acceptance (as set out at paragraphs 36-40) were explained.  In response the review applicant said that the visa applicant was confused and because she is a woman she is more thoughtful and her version of events was correct.  It matters not which, if any, version of events is correct.  The response has added nothing to the credibility of both parties and I consider that this is an example of a contrivance between the parties whereby they have failed to fully correctly co-ordinate their evidence.

• Thirdly the unlikelihood that the review applicant could have gone to China to become engaged to the visa applicant, secretly without any of her family becoming aware that she had travelled there was explained.  The review applicant provided no further response to this issue.

1. All of the significant evidence in this case concerning the genuineness of the relationship relies on the evidence of the parties and the witness.  The witness is the sole provider of a third party declaration as to the genuineness of the relationship that has been provided in the case.  By their own evidence the review applicant and the witness are the only people in Australia who are aware of this relationship and they and the visa applicant are the only persons attesting to its genuineness. The highly unlikely nature of their version of events concerning the inception of the relationship; the failure to adequately explain the reasons for the secretive nature of the relationship, along with a failure to present any objective evidence to attest to the genuineness of the relationship, causes me not to be satisfied that the parties have a genuine intention to live together as spouses.    

2. Overall, I find the cumulative evidence of the parties and the witness to be unconvincing.  I find that the parties do not and did not (at the time of application) have a genuine intention to live together as spouses, and therefore cl.300.216 is not met.

3. As the visa applicant cannot meet the time of application criteria, and there is no evidence before the Tribunal that the second named applicant met the criteria that must be satisfied by at least one family member of the family unit at the time of application, the Tribunal also finds that the second named visa applicant is unable to satisfy the criteria for grant of the visas.

4. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Ian Garnham
Member