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

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 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.

3. 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.

4. 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.

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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?

1. 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 Tribunal accepts that at the time of application the review applicant was an Australian citizen.

2. The Tribunal has also had regard to an undated letter received by the Department on 16 May 2014 from Sheikh Omar Haouli, a marriage celebrant.  The Tribunal accepts that the parties had engaged a marriage celebrant and were intending to have their marriage legally solemnised in Melbourne on 14 September 2014.  Accordingly, the Tribunal finds that the requirements of cl.300.211 are met.

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

1. Cl. 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.

2. Based on the documentary evidence provided to the Department, and the Tribunal, and the credible evidence of the review applicant’s father, the Tribunal is satisfied the parties have met and were known to each other personally before the visa application was lodged.  Accordingly, the Tribunal finds that the requirements of cl.300.214 are met.

Do the parties genuinely intend to marry?

1. Cl. 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.  Based on the oral evidence of the visa applicant and the review applicant, the Tribunal accepts that the parties were engaged on 2 March 2014.  The Tribunal acknowledges the concerns of the delegate regarding the lack of knowledge demonstrated of each other’s employment stats, financial position and future financial commitments.  The Tribunal also acknowledges the lack of documents to support the relationship. 

2. The Tribunal accepts the parties’ consistent evidence that the review applicant and the visa applicant met in October 2013 in Lebanon and were very compatible with each other.  The Tribunal accepts that they spent 5 or 6 occasions together at family gatherings talking and sharing life experinces.  The Tribunal also accepts that they found each other attractive and interesting and decided to remain in contact when the review applicant returned to Australia.  The Tribunal accepts the consistent evidence that they communicated almost every day on skype, viber and whats up, and that their respective parents were aware that they were speaking to each other.  The Tribunal acknowledges that they not spent any further time together in person since their first meeting.  However noting that the review applicant is a student and working, the Tribunal accepts that time and money were the only obstacles for her not returning.  The Tribunal accepts that the parties have spent considerable time communicating with each other over the internet and supporting each other and growing their relationship. 

3. The Tribunal extensively discussed with the review applicant the reasons why they did not have any celkebration to announce their engagement and accepts the review applicant’s evidence that they are planning to host a dinner when he arrives.  The Tribunal also accepts that the review applicant’s parents support the relationship and are involved in making decisions regarding the holding of celebrations when the visa applicant comes to Australia. 

4. After discussing the delegate’s concerns with the visa applicant and the review applicant, the Tribunal does not share the concerns of the delegate.  The Tribunal has also had regard to correspondence from the marriage celebrant as well as the parties’ evidence regarding their wedding plans in Australia.  The Tribunal accepts that the parties had made all necessary arrangements with the marriage celebrant to have their marriage legally solemnised in Melbourne.  The Tribunal also accepts the review applicant’s evidence that she has not changed the proposed date of marriage since the first notice of intention to marry expired and the visa was not granted because she has spoken to the marriage celebrant and will make new plans when the visa is approved.  The parties’ consistent evidence is that they intend to marry as soon as possible after the necessary plans are put in place and the visa applicant has settled into life in Australia.  They were also both aware of the requirement to marry within 9 months after the visa applicant first enters Australia and the fact that the Department will require a new Notice of Intention to Marry.  The Tribunal finds that at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a). The proposed date for the marriage is within the visa period as required by cl.300.215(b).  Therefore, the requirements of cl.300.215 are met.

Do the parties genuinely intend to live together?

1. 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.

2. The Tribunal has had regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention. 

Financial aspects of the relationship

1. The Tribunal accepts from the oral evidence at hearing that the visa applicant has remitted money to the review applicant for her birthday but otherwise since they are both working and financially independent, they do not send each other money.  The couple have no joint assets or liabilities at any time.  However the Tribunal notes that as the visa applicant is overseas there is no real possibility of joint assets or sharing of daily household expenses at this stage.  The Tribunal also notes from the documentary evidence that the review applicant is a tertiary student and employed on a casual basis as a child educator.   On the other hand, the visa applicant is employed on a full time basis in a petrol station in Tripoli, Lebanon.

2. The Tribunal places limited weight on the financial aspect of the relationship.

Nature of the household

1. The Tribunal accepts that the review applicant had spent time with the visa applicant in Lebanon but, has not shared a household.  The applicants gave consistent evidence, corroborated by the review applicant’s father, that it was culturally improper for them to live together until after they are married.  Both were consistent in their evidence that they will start living together when they are married and share a household.  They said they would rent a house and share the responsibilities. 

2. In any case, as the visa applicant and the review applicant are currently unable to have a household, this factor has been given less weight in the consideration.

Social aspects of the relationship

1. The Tribunal is satisfied by the documentary evidence provided to the Department, and the Tribunal, that the parties present themselves as being engaged to marry to each other; and that in the opinion of their families and friends including the review applicant’s mother and father they are widely considered the fiancé of each other both at the time of the application and the time of the decision.

2. The Tribunal places some weight on the social recognition of the relationship.

Nature of the parties’ commitment to one another

1. The Tribunal is satisfied that the parties’ have met and spent time together.   The Tribunal accepts that the parties have maintained daily contact, by viber, and other means since they met, for which there is some documentary evidence both for the time of application and the time of decision.

2. Noting the concerns of the delegate, the Tribunal questioned the parties about their knowledge of each other and their lives, the speed within which their relationship developed, the limited time they have spent together face to face, and whether their family connection was the reason for this relationship.  The review applicant and the visa applicant were open and honest in their evidence.  They openly talked about their families, their lives, their pasts and their future.  They both told the Tribunal they had not been in any other relationships and the review applicant was at times, apprehensive and embarrassed about expressing her feelings for the visa applicant.  They both did talk about having so much in common and a deep understanding of each other.  They said that they have developed an emotional attachment to each other and their relationship has gone from strength to strength such that they cannot imagine their lives without the other person in it.  They presented as a young inexperienced couple very committed to each other, their families and to having a future together.  Both parties showed a genuine level of concern for each other’s welfare, life and future.  The Tribunal is satisfied that they demonstrated a knowledge of each other’s lives and plans for the future that are commensurate with a couple who intend to live together as spouses.

3. The Tribunal is also satisfied from the oral and documentary evidence (including witness evidence) that the parties have plans to marry in Australia as soon as they can after the visa applicant enters Australia. 

4. The Tribunal accepts from the oral evidence that the parties’ see their relationship as long-term and that they both derive a significant degree of companionship and emotional support from each other. 

5. The Tribunal has taken into account the parties’ respective ages, backgrounds and life experience, and accepts that neither party was in a relationship with any third party at the time of the application, or that this is the case at the time of this decision.

6. Having considered all 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?

1. Cl. 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.

2. The Tribunal finds that the review applicant continues to be an Australian citizen at the time of decision, and is satisfied that the visa applicant intends to marry an Australian citizen.  The Tribunal has had regard to the consistent oral evidence of the parties that their marriage will take place as soon after the visa applicant arrives in Australia as can be arranged.  The Tribunal is satisfied that they have a wedding celebrant who has been engaged to perform their marriage ceremony.  Therefore cl.300.211 continues to be met at time of decision.

3. The Tribunal is satisfied that the parties have met and are known to each other personally. The Tribunal is satisfied that cl.300.214 continues to be met at the time of decision.

4. The Tribunal is also satisfied by oral evidence by the parties at hearing that since the delegate’s decision, they continue to make preparations for their marriage in Australia.  The parties are aware of the requirement that they marry within the visa period and have demonstrated at hearing that they have a shared understanding in this regard.

5. The Tribunal is satisfied therefore that the parties continue to have a genuine intention to marry and that that marriage is intended to occur within the visa period, and finds that cl.300.215 continues to be met at time of decision.

6. Based on the evidence discussed above, the Tribunal finds that the parties continue to have a genuine intention to live together as spouses, and finds therefore that cl.300.216 continues to be met at time of decision.

7. Given the findings above, the Tribunal finds that the visa applicant continues to satisfy

   
   

   cl.300.211, cl.300.214, cl.300.215 and cl.300.216 at the time of its decision and accordingly, cl. 300.221 is met.

8. 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

1. 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.

Lisa Lo Piccolo
Member