1500031 (Migration)

[2016] AATA 3260

1500031 (Migration) [2016] AATA 3260 (5 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Alaa Sammaka

VISA APPLICANT:  Mr Abbas Zalzali

CASE NUMBER:  1500031

DIBP REFERENCE(S):  OSF2014/006977

MEMBER:Rania Skaros

DATE:5 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 05 February 2016 at 9:56am

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 7 November 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.

3. The delegate refused to grant the visa on 5 December 2014 on the basis that the visa applicant did not satisfy cl.300.214 of Schedule 2 to the Regulations because the delegate found that the sponsor and visa applicant, at the time of application, had not met in person since each of them turned 18 years of age.

4. The review applicant appeared before the Tribunal on 4 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s father, Mr Mohamad Sammaka. 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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the requirement in cl.300.214 is met.  

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

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

8. The sponsor provided a copy of her birth certificate and passport with the application. On the basis of these documents the Tribunal finds that the sponsor’s date of birth is 13 September 1996. The sponsor turned 18 years of age on 13 September 2014.

9. Information on the decision record, which the sponsor provided with the application for review, detailed the movement records of the sponsor, which indicated that she departed Australia on 8 April 2013 and returned to Australia on 26 June 2013. As at the time of application, namely 7 November 2014, the sponsor had not departed Australia.

10. There is no record of the visa applicant having entered Australia and the sponsor confirmed at the hearing that the visa applicant had never travelled to Australia.  The sponsor gave evidence that they had not met each other in person since turning 18 years of age for financial reasons as she is an apprentice. She stated that she has maintained contact with the visa applicant since 2011 and that they want to be together. She has records of all their communication since 2012. She believes the regulation is unjust and stated that she sought advice from the Department about the application and was told as long as she has photos proving they had met she could make the application.

11. The Tribunal also had the opportunity to speak to Mr Sammaka who stated that his daughter has been suffering due to the separation and he hoped she could get a positive outcome.

12. The Tribunal has considered the sponsor’s response and Mr Sammaka’s evidence, however, as explained at the hearing, the Tribunal does not have any discretion in this matter and must make its decision in accordance with the legislative provisions.

13. On the evidence before it, the Tribunal finds that, at the time of application, the parties had not met each other in person since each of them turned 18.  

14. Therefore, at the time of application, the requirements of cl.300.214 were not met.

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

    DECISION

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

    Rania Skaros
    Member