1420151 (Migration)

[2016] AATA 3335

1420151 (Migration) [2016] AATA 3335 (18 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Sonia Wardak

VISA APPLICANT:  Mr Hashmat Ullah Nawabi

CASE NUMBER:  1420151

DIBP REFERENCE(S):  BCC2014/1208975 OSF2014/060195

MEMBER:Catherine Wall

DATE:18 February 2016

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations;

·cl.300.214 of Schedule 2 to the Regulations;

·cl.300.215 of Schedule 2 to the Regulations;

·cl.300.216 of Schedule 2 to the Regulations; and

·cl.300.221 of Schedule 2 to the Regulations.

Statement made on 18 February 2016 at 8:48am

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. Mr Hashmat Ullah Nawabi is a 30 year old citizen of Afghanistan who is residing in Slovakia. The applicant applied for the visa on 14 May 2014 on the basis of his relationship with the sponsor, Ms Sonia Wardak ,a 29 year old Australian citizen. Ms Wardak is the review applicant in this matter.

3. 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.

4. The delegate refused to grant the visa on 14 November 2014 on the basis that the visa applicant did not satisfy cl.300.216 and cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant and his spouse have a genuine intention to get married and live together as spouses.

5. A copy of the decision record was submitted to the Tribunal by the applicant for the purposes of the review.

6. Ms Wardak appeared before the Tribunal on 16 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mr Nawabi, from Ms Wardak’s mother, Ms Nasima Wardak, and from Ms Wardak’s sister, Ms Breshna Wardak. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether at the time of application and time of this decision Mr Nawabi and Ms Wardak genuinely intend to live together as spouses.

   Does the visa applicant intend to marry an eligible person?

10. 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.

11. On the basis of oral evidence and a copy of an Australian passport, the Tribunal is satisfied that Ms Wardak is an Australian citizen. As the Tribunal is also satisfied that Mr Nawabi intends to marry Ms Wardak, the Tribunal finds that the requirements of cl.300.211 are met.

    Have the applicants met and are they known to each other personally?

12. 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.

13. The Tribunal heard that the parties’ met in person in Kabul in May 2013, in Thailand in November 2013 and in Slovakia in late 2015. The Tribunal accepts this claim as it is supported by consistent oral evidence from the witness, numerous photographs of the parties in various social settings, copies of airline bookings, and Department movement records indicate that Ms Wardak was outside Australia at this time.

14. On the basis of the available evidence, the Tribunal is satisfied that the parties met in person after turning 18 years of age, and that they were known to each other personally at time of application. Accordingly, the Tribunal finds that the requirements of cl.300.214 are met.

    Genuine Intention to Marry

15. 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.

16. The Tribunal has sighted a Notice of Intention to Marry which advises that the marriage between the parties is intended to take place on 15 November 2014 at the Islamic Centre Preston. Having had regard to the parties’ oral and written evidence at time of application, the Tribunal is satisfied that the parties had a genuine intention to marry and that they satisfy the requirements of cl.300.215(a). The proposed date for the marriage at the time of application was within the visa period as required by cl.300.215(b). Therefore, the Tribunal is satisfied that the requirements of cl.300.215 are met.

17. At hearing, both parties stated their intention to marry as soon as possible after Mr Wardak is granted the visa.  The Tribunal accepts that they have not set another date for the marriage due to the uncertainty about the granting of Mr Nawabi’s visa.

18. On the basis of the available evidence, the Tribunal is satisfied that at the time of decision the parties have a genuine intention to marry and that the marriage is intended to take place within the visa period.

    Do the parties intend to live together as spouses?

19. 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.

20. The primary criteria to be satisfied at the time of decision are that the applicant continues to meet cl.300.211, 300.214, 300.215 and 300.216: cl.300.221.

21. In assessing the different aspects of the relationship, the Tribunal had regard to the principle set out in Bretag v Immigration Review Tribunal (Federal Court, 29 November 1991, unreported) that the Tribunal may have regard to circumstances of the relationship subsequent to the visa application being lodged as logically probative of the existence of facts relevant to the issue of whether the parties were spouses at the time of application.

22. 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.

    Formation and development of the relationship

23. Ms Wardak told the Tribunal that Mr Nawabi is her second cousin and they grew up together until she migrated to Australia with her family in 1998. She said that she did not maintain contact with Mr Nawabi, however their families continued to have contact.

24. In November 2010 Mr Nawabi married Denise Kamenarova, a Slovakian citizen, and they lived together in Slovakia. They had two children together and divorced on 23 January 2014. The Tribunal is mindful of the delegate’s concern that Mr Nawabi remained married at the time that he and Ms Wardak held an engagement ceremony. However the Tribunal notes that the divorce certificate states that Ms Kamenarova filed for divorce on 15 February 2013 on the basis that her marriage was not working and she and Mr Nawabi did not share a common household. The Tribunal is satisfied that these circumstances do not undermine the parties’ claim that they had a genuine commitment to a life together at time of application.

25. After completing university Ms Wardak commenced her career as a pharmacist. In May 2012 a mutual friend connected the parties on Facebook. After communicating on Facebook for a few months, Ms Wardak phoned Mr Nawabi and they engaged in regular communication via Skype and Viber. Ms Wardak said that she first told her sister Breshna about her interest in Mr Nawabi, then later told her mother around November 2012. Her mother subsequently spoke with Mr Nawabi and then made contact with his mother to discuss the parties’ relationship. In May 2013 Ms Wardak travelled to Kabul with her mother and Breshna, where they met with Mr Nawabi and his family. An engagement ceremony was held on 18 June 2013.

26. Ms Wardak explained that she found it difficult to socialise in Kabul due to the restrictions on women, so she and Mr Nawabi decided to spend a week in Dubai before she returned to Australia. Her mother, sister Breshna, and Mr Nawabi’s aunt travelled to Dubai with them.

27. In November 2013 Ms Wardak and Mr Nawabi met in Thailand and spent 2 weeks together. In November 2014 they met again in Kabul, as Mr Nawabi’s mother was ill. It was at that time that Mr Nawabi’s visa was refused. Ms Wardak said that she was very distressed about the refusal, and returned to Australia to deal with the matter.

28. Ms Wardak visited Mr Nawabi in Senec, Slovakia on 10 November 2015 and returned to Australia on 20 December 2015. She went to Slovakia again on 24 December 2016 and remained with Mr Nawabi until 28 January 2016.

    Nature of the commitment

29. The Tribunal is satisfied that the parties have committed to a life together and that they provide each other with continuing emotional support. When asked why she chose Mr Nawabi as her partner, Ms Wardak said that she found him to be open-minded and supportive of her desire to combine her career with family and to undertake post-graduate study. The parties gave consistent and credible evidence about their shared interests and plans for the future. They also demonstrated a sound knowledge of each other’s personal circumstances.

30. It is evident that Ms Wardak has been determined to spend as much time with Mr Nawabi as possible, regardless of financial constraints and her employment obligations.

31. The Tribunal is satisfied that the parties have discussed the impact of Mr Nawabi’s migration on his young children in Slovakia. Ms Wardak said that Mr Nawabi will maintain regular phone contact with his children and will visit them whenever possible

32. The Tribunal asked Breshna Wardak if her family had any reservations about Ms Wardak’s relationship with a man who has been married and has children. She said that in traditional Afghani culture this might be so, but her family has lived in Australia for some time and has more liberal attitudes towards relationships. Ms Wardak’s mother told the Tribunal that her only wish is for her daughter to be happy, and it is clear that Mr Nawabi makes her happy.

    Nature of the household

33. As the parties have lived in different countries throughout their relationship, the Tribunal gives this aspect of the relationship little weight. The Tribunal does however acknowledge that the parties have travelled to countries other than Australia in order to spend time together.

    Financial aspects

34. While noting that Ms Wardak has sent money to Mr Nawabi on occasions, the Tribunal gives little weight to this aspect of the relationship, given that the parties have maintained households in different countries.

    Social aspects

35. The Tribunal accepts that both parties’ families are known to each other and strongly support the parties’ relationship. The Tribunal gives weight to oral evidence from Ms Wardak’s mother and sister, and accepts that Ms Wardak has spent time with Mr Nawabi’s parents in Kabul, and that she maintains contact with them.

36. The Tribunal accepts that the parties socialised with Mr Nawabi’s friends and neighbours in Slovakia, on the basis of photographs and consistent oral evidence from the parties.

37. On the basis of the evidence before it the Tribunal is satisfied that the parties’ respective families and social circles support and accept their relationship. The Tribunal also accepts that the parties present themselves publicly and socially as a couple.

    Overall assessment

38. The Tribunal found that the witnesses gave consistent evidence in respect of the key evidentiary issues considered by the Tribunal. In particular, the Tribunal found Ms Wardak’s evidence to be detailed and persuasive.

39. Taken altogether, the Tribunal is satisfied that the conduct of the parties to date supports their stated intention to marry and live together as spouses and that their relationship is genuine and continuing. The Tribunal also considers it significant that the relationship has now existed for a period of almost 3 years, despite the challenges of living apart. For these reasons, the Tribunal accepts that the couple see the relationship as a long-term and exclusive one.

40. Having considered the totality of the evidence, 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?

41. 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.

42. For the reasons given, the Tribunal is satisfied that the parties have maintained regular communication since the time of application, that they continue to provide each other with emotional support and that they have made plans to marry and live together in Australia as spouses. The Tribunal is satisfied that 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.  Accordingly, cl.300.221 is met.

    CONCLUSIONS

43. 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

44. 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 of Schedule 2 to the Regulations;

    ·cl.300.214 of Schedule 2 to the Regulations;

    ·cl.300.215 of Schedule 2 to the Regulations;

    ·cl.300.216 of Schedule 2 to the Regulations; and

    ·cl.300.221 of Schedule 2 to the Regulations.

    Catherine Wall
    Member