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

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).
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.
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.
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.
A copy of the decision record was submitted to the Tribunal by the applicant for the purposes of the review.
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.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
Clause 300.211 requires that at the time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1420151 (Migration)

Details

AGLC: 1420151 (Migration) [2016] AATA 3335
Case: [2016] AATA 3335
Decision Date: 18 February 2016

CaseChat Overview and Summary

The case, 1420151 (Migration), was heard by the Tribunal concerning the application for a Subclass 300 (Prospective Marriage) visa by Mr Nawabi, a visa applicant, intending to marry Ms Wardak, an Australian citizen. The Tribunal was tasked with determining whether the applicants genuinely intended to live together as spouses and if the visa applicant intended to marry an eligible person, among other criteria. The Tribunal found that Mr Nawabi intended to marry Ms Wardak, who was indeed an Australian citizen, and that the applicants had met and were known to each other personally, as evidenced by consistent oral testimony, photographs, airline bookings, and movement records. Furthermore, the Tribunal was satisfied that the applicants had a genuine intention to marry and that the marriage was intended to take place within the visa period.

The central legal issue the court had to address was whether the applicants met the criteria for a Subclass 300 visa under the Migration Regulations. This involved assessing if the applicants genuinely intended to marry and if they were known to each other personally. The court's reasoning was based on the evidence presented, including the Notice of Intention to Marry, the parties' oral and written evidence, and supporting documents such as photographs and airline bookings. The court concluded that the applicants met the criteria for a Subclass 300 visa, including clauses 300.211, 300.214, 300.215, 300.216, and 300.221 of Schedule 2 to the Regulations.

As a result, the Tribunal decided to remit the application to the Minister for reconsideration, directing that the visa applicant meets the specified criteria for a Subclass 300 visa. The court found that the applicants had a genuine intention to marry and that they were known to each other personally, thus satisfying the requirements for a Prospective Marriage (Temporary) (Class TO) visa. The decision was made to ensure that all relevant criteria were properly considered by the Minister in granting the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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? 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. 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? 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. 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. 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 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. 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. 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. 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?

Decision

Reasons for decision

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 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 WallMember

Ratio Decidendi

Legal Principle Established

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