1500152 (Migration)

[2015] AATA 3393

1500152 (Migration) [2015] AATA 3393 (14 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ada Awad

VISA APPLICANT:  Mr Mahmoud Sanjakdar

CASE NUMBER:  1500152

DIBP REFERENCE(S):  OSF2014/006774

MEMBER:Alan Duri

DATE:14 August 2015

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.300.211;

·cl.300.214;

·cl.300.215;

·cl.300.216; and

·cl.300.221 of Schedule 2 to the Regulations.

Statement made on 14 August 2015 at 4:19pm

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 Mr Sanjakdar a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958.

2. Mr Sanjakdar was born in Lebanon on 2 May 1996.

3. Mr Sanjakdar applied for the visa on 8 August 2014 on the basis with his relationship with Ms Ada Awad, an Australian citizen.

4. Ms Awad was born on 12 August 1985 in Australia.

5. The delegate refused to grant the visa on 22 December 2014 on the basis that Mr Sanjakdar did not satisfy cl.300.216 and cl.300.221.  The delegate noted the following:

   ·Mr Sanjakdar and Ms Awad are first cousins and claim to have been engaged around 12 May 2013 in Lebanon. They registered a marriage in Lebanon on 1 July 2013. However, Mr Sanjakdar was 17 years old at the time of the marriage. As result, the marriage is not considered valid for purposes of the Migration Act.

   ·The delegate noted that Mr Sanjakdar’s lack of knowledge of Ms Awad’s financial situation is not consistent with that of a couple in a genuine relationship.  The delegate also noted that the parties have not provided consistent evidence in relation to their future plans and preparations to marry and to reside together as spouses.  The delegate was not satisfied that the parties intend to reside together as spouses.  The delegate further concluded that there is no convincing evidence that the parties present themselves as an engaged couple to family or the wider community, that they undertake regular joint social activities or that they have attended any significant events together.  Furthermore, the delegate was not satisfied that the parties provide each other with companionship and emotional support, or that they have a joint commitment to marry and share their lives together. 

6. The delegate concluded that he was not satisfied that Mr Sanjakdar and Ms Awad genuinely intend to live together as spouses and therefore do not meet the legal requirements of cl.300.216 and cl.300.221.

   Hearing

7. The review applicant Ms Awad appeared before the tribunal on 12 August 2015 to give evidence and present arguments. The tribunal also received oral evidence from Mr Sanjakdar.  The tribunal was assisted by Arabic interpreter.

   Ms Awad’s evidence

8. Ms Awad gave her evidence in English and told the tribunal that she is fluent in Arabic, the language which she communicates with Mr Sanjakdar. 

9. Ms Awad told tribunal that she was born in Lakemba and left school when she was 14 years old.  She indicated she worked at a “couple of places” and recalled that she last worked when she was about 24 years old doorknocking.  Ms Awad gave evidence to the effect that she has usually been reliant on Centrelink payments and currently receives parenting payment and family tax benefit.  She denied that she has any health problems. Ms Awad told the tribunal that she married a person from Lebanon about six years ago.  She sponsored the man to come to Australia.  However, the marriage only lasted three or four months, and she withdrew the sponsorship.

10. The tribunal asked Ms Awad about her relationship with Mr Sanjakdar.  She indicated that every few years her family used to visit Lebanon during summer for three months.  She had always known of her cousin.  However, during a visit in May 2013 they fell in love. Ms Awad told the tribunal that Mr Sanjakdar makes her feel very secure, cared for and loved.  They became reacquainted on 1 May 2013 and on 25 May 2014 they called their respective parents to become engaged.  They were legally married in Lebanon on 23 June 2013.  Ms Awad acknowledged that Mr Sanjakdar was 17 years old at the time of the marriage and understood that the marriage is not valid under Australian law.  Ms Awad told the tribunal that they intend to have another marriage when Mr Sanjakdar comes to Australia.  Notwithstanding the Australian legalities, Ms Awad told the tribunal that she has lived as Mr Sanjakdar’s wife since the marriage.  Ms Awad also acknowledged there is an age difference, but that neither family has any objection.

11. Ms Awad told the tribunal that she spent about six months in Lebanon last year.  She stated that she stayed with Mr Sanjakdar at his father’s (her uncle’s) place.  They had their own room.  Each day Mr Sanjakdar would go out to work as a farm labourer.  Each morning she used to make him breakfast and they would have a coffee and cigarette together.  During the day Ms Awad used to assist Mr Sanjakdar’s mother and sister with the housework.

12. Since her return to Australia Ms Awad communicates with Mr Sanjakdar every day on a variety of social media and normal telephone.  Their baby Azzam was born on 29 April 2015, but she is still waiting for the birth certificate.  Apparently there is difficulty in having Mr Sanjakdar’s name placed on the certificate.  Ms Awad lives with her parents.  She stated that her mother has brought brand-new, bedroom furniture, but she is not going to sleep in it until Mr Sanjakdar comes to Australia.  Ms Awad showed the tribunal her telephone with various photographs of Mr Sanjakdar.     

13. The day after the hearing Ms Awad provided the tribunal with a birth certificate showing that she gave birth to her son Azzam Sanjakdar on 29 April 2015.  No father is listed on the birth certificate. 

    Mr Sanjakdar’s evidence

14. Mr Sanjakdar told the tribunal that Ms Awad is his paternal cousin, and that the relationship developed from 1 May 2013.  Mr Sanjakdar stated that it was a love marriage and that the age difference makes no difference to him.  Mr Sanjakdar gave broadly consistent information as Ms Awad concerning the inception and nature of the relationship.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. This is a borderline case.  Ms Awad presents as a vulnerable woman.  She left school when she was 14 and has had very limited work experience.  However she denies any medical problems.  Ms Awad is over ten years older than her first cousin Mr Sanjakdar who presents unsurprisingly as an immature if not insolent 19 year old.  Both parties gave confusing evidence at times and the tribunal is not surprised that there were various inconsistencies concerning future plans.  Both parties claim (unconvincingly) that theirs is a love marriage that blossomed within a few weeks of Ms Awad’s visit to Lebanon in April 2013. Notwithstanding the tribunal’s concerns, the fact remains that Ms Awad has spent extended periods of time in Lebanon and now has a baby to Mr Sanjakdar.  In these circumstances the tribunal accords considerable benefit of the doubt and makes the following findings.

16. Clause 300.211 requires that at the time of application Mr Sanjakdar intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.  Ms Awad is an Australian citizen.  Accordingly, the tribunal finds that the requirements of cl.300.211 are met.

17. Clause 300.214 requires that at the time of application the parties have met and are known to each other personally.  Based on their respective statements and photographs, the tribunal accepts that Ms Awad and Mr Sanjakdar are first cousins and have known each other personally before the visa application.  The tribunal is satisfied that cl.300.214 is met.

18. 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.  As noted in the history the parties are legally married in Lebanon but the marriage is not valid under Australian law because Mr Sanjakdar was under the age of 18 at the time of the marriage.  The tribunal is prepared to accept that the parties will marry again under Australian law if Mr Sanjakdar comes to Australia.  The tribunal accepts that any future proposed date for the marriage will be subject to a visa being issued but will be 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.

    Do the parties genuinely intend to live together?

19. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’.  The tribunal makes the following findings.

    ·The parties do not have any jointly owned assets, joint bank accounts or joint liabilities.    Given that they live in separate countries, the tribunal places little weight on the financial aspects of the relationship.

    ·The department’s travel records show that Ms Awad was outside Australia from 22 April 2013 to 5 November 2013 and again from 25 March 2014 to 13 September 2014.  The tribunal accepts that during these absences Ms Awad was in Lebanon.  The tribunal places weight on Ms Awad’s extended absences from Australia and accepts that since their purported marriage they resided together in Mr Sanjakdar’s parents’ household.    

    ·Regarding social aspects, the tribunal was satisfied that the parties have engaged in social activities together during periods that Ms Awad has been in Lebanon.  The tribunal is satisfied that the parties’ respective families acknowledge the relationship.

    ·Ms Awad gave birth to her son Azzam Sanjakdar on 29 April 2015.  No father is listed on the birth certificate.  However the tribunal accepts Ms Awad’s evidence that no other person but Mr Sanjakdar could be the father.  The department’s travel records show that Ms Awad was in Lebanon at the time of conception.

20. As is common in such cases, the key test in this requires an assessment of the party’s future intentions.  Given  that Ms Awad has spent extended periods of time in Lebanon and now has a baby to Mr Sanjakdar the tribunal is prepared to accept that at the time of application the parties did have a genuine intention to live together as spouses, and therefore meet cl.300.216.  

21. Clause 300.221 requires that at the time of decision, Mr Sanjakdar continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216.  That is, that Mr Sanjakdar intends to marry an Australian citizen, Australian 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.

22. The tribunal accepts that Mr Sanjakdar still intends to marry Ms Awad and genuinely intends to live with her as her spouse.  Accordingly, the tribunal finds that Mr Sanjakdar satisfies cl.300.221.

23. 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

24. 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;

    ·cl.300.214;

    ·cl.300.215;

    ·cl.300.216; and

    ·cl.300.221 of Schedule 2 to the Regulations.

    Alan Duri
    Member