1502652 (Migration) - [2016] AATA 3584

1502652 (Migration) [2016] AATA 3584 (17 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Miss Reema Elbanna
VISA APPLICANT:  Mr Ahmad El Banna
CASE NUMBER:  1502652
DIBP REFERENCE(S):  OSF2014/006562
MEMBER:Lisa Lo Piccolo
DATE:17 March 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 17 March 2016 at 12:41pm

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).
The visa applicant applied for the visa on 16 May 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.300.211.
The delegate refused to grant the visas on 24 January 2014 on the basis that the first named visa applicant did not satisfy cl.300.216 or cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant and review applicant intend to live together in a genuine long term relationship. A copy of the delegate’s decision was provided to the Tribunal by the review applicant.
The review applicant appeared before the Tribunal on 17 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s father. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The review applicant was represented in relation to the review. 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 the parties 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. The Tribunal has had regard to a certified copy of a Certificate of birth in the name of Reema Elbanna. Accordingly, the…

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 1502652 (Migration)

Details

AGLC: 1502652 (Migration) [2016] AATA 3584
Case: [2016] AATA 3584
Decision Date: 17 March 2016

CaseChat Overview and Summary

The case of 1502652 (Migration) involved a review application by Mr Ahmad El Banna for a Prospective Marriage (Temporary) (Class TO) visa under section 65 of the Migration Act 1958. The delegate had refused to grant the visa on the basis that Mr El Banna did not satisfy the criteria outlined in cl.300.216 and cl.300.221 of Schedule 2 to the Migration Regulations 1994, specifically that he and Miss Reema Elbanna did not intend to live together in a genuine long term relationship. Miss Elbanna, an Australian citizen, applied for a review of the decision before the Tribunal.

The primary legal issues that the Tribunal had to decide were whether the applicants genuinely intended to live together as spouses. This required consideration of the applicants' intention to marry and their intention to live together after marriage. The Tribunal examined the evidence presented by the applicants and the documentary evidence provided to determine if the applicants met the criteria for a Subclass 300 (Prospective Marriage) visa.

The Tribunal concluded that the applicants genuinely intended to live together as spouses. They found that the applicants had met in person, had a genuine intention to marry within the visa period, and intended to live together as spouses. The Tribunal was satisfied with the applicants' evidence that they had a deep understanding of each other, a strong emotional attachment, and a commitment to their future together. Despite the concerns raised by the delegate, the Tribunal found that the applicants' relationship was genuine and that they had plans to marry in Australia as soon as possible after the visa applicant arrived. The Tribunal also found that the applicants continued to meet all the relevant criteria at the time of the decision.

Therefore, the Tribunal decided to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa, directing that Mr El Banna met the specified criteria for a Subclass 300 (Prospective Marriage) visa.

Orders