1419305 (Migration)

[2016] AATA 3137

1419305 (Migration) [2016] AATA 3137 (27 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Laila Abdul Hamid

VISA APPLICANT:  Mr Hassan El Yassir

CASE NUMBER:  1419305

DIBP REFERENCE(S):  OSF2014/006487

MEMBER:Michael Cooke

DATE:27 January 2016

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 visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.215 of Schedule 2 to the Regulations

·cl.300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 27 January 2016 at 3:58pm

.

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 17 April 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.300.221 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on 30 October 2014 on the basis that the visa applicant did not satisfy cl.300.221 of Schedule 2 to the Regulations because the delegate was unconvinced that that visa applicant intends to marry an Australian citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses.

4. The review applicant/sponsor appeared before the Tribunal on 20 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is the genuine intention of the parties to marry and live together in Australia as spouses.

   Do the parties genuinely intend to marry?

7. 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. 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.

   Do the parties genuinely intend to live together?

8. 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.

9. 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 makes the following findings.

10. The applicant has sent the sponsor gifts including rings and other trinkets that were displayed at the hearing. The sponsor said that the applicant had bought her clothes when they were together in Lebanon. The parties live in different countries and have their own private income.

11. The sponsor is a divorced Muslim woman who had been shunned or disowned by her family when her loveless arranged marriage (aged 18 in Lebanon) collapsed.  She is 27 years old at time of writing. The applicant is a year older. She lives alone and is a certificated Child Care assistant. Her large family (she is the eldest) have little to do with her for the reasons already cited and she lives alone. Her many siblings continue to live with her parents.

12. The sponsor has produced photographic evidence of her socialising with the applicant to the Tribunal at the hearing. She initially came to Lebanon purely to finalize paperwork for her Lebanese Islamic divorce and planned a prompt return. She met the applicant at the airport where he was coming to pick up a friend from Australia. He asked her a question and then they got talking. He offered to drive her to her hotel. He then acted as her chauffer in both business and social activities. She never intended to do anything but finalise her Lebanese divorce paperwork. She had no family members to meet due to her disownment. But having met the applicant she stayed for 3 weeks. The applicant’s mother in Lebanon accompanied the sponsor in the traditional chaperoning way when they were in the Lebanon but they also spent some time together privately sightseeing.

13. The parties subsequently became close and had the opportunity to talk a lot about their lives. The applicant proposed to her on the phone when she returned to Australia. Having been in a loveless marriage and having fallen in love with the applicant due to his charming manner and kindness she readily accepted his proposal - she informed in the hearing. Her shunning - though hurtful emotionally - has ironically allowed her to be a free woman from the point of view of making her own decisions. She did not require the acquiescence of family members in Australia to marry the applicant. She met the applicant’s family members in Lebanon when visiting his house. They liked and approved of her - the parties informed in the hearing. The applicant has confirmed this separately in oral evidence. She has also been in regular contact with the applicant’s own Australia-based siblings.

14. The applicant indicated in the hearing he liked the sponsor from the first encounter. Getting to know her during the 21 days she spent in Lebanon involved constant sightseeing and visitations with his family as he assisted the sponsor to formalize all her divorce paraphernalia by driving her everywhere she needed to go. They had a lot of time to talk. This companionship gradually blossomed into love on the part of both parties. The sponsor is a shy and retiring woman but with a strong character and determination exemplified in her oral evidence at the hearing. She indicated she did not hesitate in accepting his proposal as she loved the applicant and was determined to begin a new life with him. Despite the travails of her personal life she enjoys the comfort and friendship of understanding friends, one of whom, Rabia, supported her at the hearing. Rabia described the sponsor (using an old Lebanese saying) as a teapot without a top. She had found the top in Lebanon without ever intending to do so she informed.

15. The parties informed that they would have to change the date of the wedding (previously planned in 2015) which would be about 3 months after arrival as the wedding would require significant planning.

16. The Tribunal is aware that the delegate was unconvinced that the parties had a genuine intention to live together as spouses. The delegate did not speak to the sponsor she informs. The applicant (she explained) was a shy person like herself and was spooked by the interview. The Tribunal has revisited the case and the adverse findings of the delegate and received additional probative information that has clarified the inconsistencies to its satisfaction. The Tribunal finds that at the time of application the parties did have a genuine intention to live together as spouses and, therefore, cl.300.216 is met.

    Do the parties continue to meet time of application requirements?

17. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses.

18. The sponsor has submitted copious hardcopy evidence at the hearing of the extensive telephone traffic with the applicant which is conducted used Viber and WhatsApp. The satellite connection with Lebanon was not good so she had not used Skype she informed. The Tribunal is satisfied that the parties continue to meet time of application requirements. Accordingly, cl.300.221 is met.

19. 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

20. 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.300.215 of Schedule 2 to the Regulations

    ·cl.300.216 of Schedule 2 to the Regulations

    ·cl.300.221 of Schedule 2 to the Regulations

    Michael Cooke
    Member