1503472 (Migration)

[2016] AATA 3521

1503472 (Migration) [2016] AATA 3521 (10 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Hanan Mohamed Farah

VISA APPLICANT:  Mr Hasan Abdullahi Sulaiman

CASE NUMBER:  1503472

DIBP REFERENCE(S):  OSF2013/102359

MEMBER:Kira Raif

DATE:10 March 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 10 March 2016 at 4:47pm

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 is a national of Yemen, born in September 1966. He applied for the visa on 30 September 2013. The delegate refused to grant the visa on 10 February 2015 on the basis that the visa applicant did not satisfy cl.300.214 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant and the prospective spouse had met in person since each of them turned 18. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 10 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The review applicant nominated another witness to provide oral evidence to the Tribunal. That evidence was to confirm that this person travelled with the review applicant to visit the visa applicant in 2015. The Tribunal accepts that evidence but notes that it does not address the issue at hand. As such, the Tribunal decided not to take oral evidence from that witness.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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.

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

6. When making the application for review, the review applicant provided to the Tribunal a copy of the primary decision. It indicates that the review applicant travelled to Australia in July 2008 and has not departed Australia since then. The visa applicant never travelled to Australia. The primary decision record refers to the information provided by the visa applicant on the application form which indicates that the parties had not met in person. Both the visa applicant and the review applicant confirmed that information in their oral evidence to the Tribunal. Having regard to that evidence, the Tribunal finds that at the time the application was made, the visa applicant and the sponsor, who is the prospective spouse, had not met in person since each of them turned 18. The Tribunal is not satisfied the visa applicant meets cl. 300.214.

7. The review applicant provided to the Tribunal evidence of her travel to visit the visa applicant in 2015, including an air ticket, an itinerary and some photographs with the visa applicant. Having regard to the photographic evidence, the Tribunal is prepared to accept that the visa applicant and the sponsor met in person in 2015. However, the requirements of cl. 300.214 apply at the time of the application and the Tribunal finds that a meeting that occurred more than two years after the application was made does not satisfy the requirement of that provision.

8. The review applicant explained in her evidence to the Tribunal the reasons she could not travel overseas earlier. In oral evidence to the Tribunal the review applicant explained that her son and her daughter had medical conditions, she could not travel because of the cost of travel and also because it was hard to live with someone she was not married to. The Tribunal also acknowledges that evidence but the Tribunal does not consider that helpful. There is nothing in the legislation that allows for the waiver of this provision or for consideration of the circumstances as to why the parties could not meet. Either the parties had met in person or they have not. In this case, the Tribunal has found that they had not met in person at the time the application was made. The visa applicant therefore does not meet cl. 300.214.

9. For the sake of completeness, the Tribunal notes that the review applicant presented evidence that the parties held a religious ceremony in late 2015. The applicant informed the Tribunal that it was only a religious marriage which was not registered with the local authority. The review applicant explained that they could not do the formal marriage because they were in different countries. The Tribunal is not satisfied that this marriage is recognised under local civil law in the country where it was arranged. The Tribunal is not satisfied that it is sufficient to meet the requirements of r.2.08E(2A).

   Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member