1418227 (Migration)

[2015] AATA 3560

1418227 (Migration) [2015] AATA 3560 (30 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ayad Polus

VISA APPLICANT:  Miss Rita Yousif Oshana

CASE NUMBER:  1418227

DIBP REFERENCE(S):  BCC2014/1898729

MEMBER:Ian Garnham

DATE:30 October 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 30 October 2015 at 3:43pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 3 August 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 cl.300.214 (1) that: The applicant and the prospective spouse have met in person since each of them turned 18.

3. The delegate refused to grant the visa on 30 October 2014 on the basis that the visa applicant did not satisfy cl.300.214 (1) of Schedule 2 to the Regulations because the visa applicant and review applicant have not met since the visa applicant turned 18 years old on 1 July 2014

4. The review applicant appeared before the Tribunal on 27 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Najeba Hurmiz who is the review applicant's mother.  The Tribunal hearing was conducted with the assistance of an interpreter in the Chaldean and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent, Ms Saraya of Challenge Migration Service P/L. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant and the prospective spouse have met in person since each of them turned 18.

   Have the applicants met in person since each of them turned 18?

8. Clause 300.214 (1) requires that the parties have met in person since each of them turned 18 and that they are known to each other personally.

9. I am satisfied based on the documentary evidence (eg passport) that the review applicant was born on 9 September 1990 and resides in Australia.  This means that the review applicant turned 18 years old on 9 September 2008.

10. I am satisfied based on the documentary evidence (eg passport) that the visa applicant was born on 1 July 1996 and resides in Iraq.  This means that the review applicant turned 18 years old on 1 July 2014.

11. According to the applicant’s evidence and his movement record, since migrating in 1998, he has only visited Iraq on one occasion over the period; 16 April 2014 to 25 May 2013.  This is the only period over which the review applicant has met the visa applicant in person.  On the date of the review applicant’s departure from Iraq he was 22 years old, however on this same date the visa applicant was only 16 years old. 

12. Therefore, at the time of application, the requirements of cl.300.214 (1) were not met.

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

    Further matter

14. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

15. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

16. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

    Ian Garnham

    
    

    Member