1505207 (Migration)

[2016] AATA 3901

1505207 (Migration) [2016] AATA 3901 (23 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Zhuoxin Sun

VISA APPLICANT:  Mr Russal Iqbal

CASE NUMBER:  1505207

DIBP REFERENCE(S):  BCC2014/1107786

MEMBER:Margie Bourke

DATE:23 May 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, cl.300.214, cl.300.215, cl.300.216 and cl.300.221 of Schedule 2 to the Regulations.

Statement made on 23 May 2016 at 2:13pm

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 2 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. Relevantly to this matter the primary criteria include cl.300.211, cl.300.214, cl.300.215, cl.300.216 and cl.300.221.

3. The delegate refused to grant the visa on 25 February 2015 on the basis that the visa applicant did not satisfy cl.300.216, cl.300.221 and cl.300.3 of Schedule 2 to the Regulations. In the body of the decision record the delegate found the visa applicant did not meet the criteria for cl.300.215. Cl.300.3 is secondary visa criterion and not relevant in this application. The tribunal has proceeded on the basis the delegate included cl.300.3 in error. The delegate recorded that the decision was based on the finding that the visa applicant and sponsor did not genuinely intend to marry and live together as spouses.

4. The review applicant appeared before the Tribunal on 19 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone.

5. The review applicant was represented in relation to the review by her registered migration agent. 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

7. The main issues in the present case are whether the parties genuinely intend to marry, and whether the parties genuinely intend to live together as spouses, both at the time of application and at the time of decision.  

   Does the visa applicant intend to marry an eligible person?

8. 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. Based on the review applicant’s certificate of Australian citizenship granted 19 April 2012 the tribunal is satisfied she is an Australian citizen. Based on the evidence before it, including the evidence that the parties had had performed a religious commitment before witnesses, the Nikah, on 1 March 2014, the tribunal is satisfied that the visa applicant intends to marry an Australian citizen, both at the time of application, and continues to do so at the time of decision.

9. Accordingly, the requirements of cl.300.211 are met.

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

10. 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. Based on the visa applicant’s Pakistani passport, and the review applicant’s certificate of Australian citizenship, which records their dates of birth, the tribunal is satisfied that both parties were aged over 18 at the time of application. The tribunal has considered the academic records and is satisfied the parties studied a diploma of nursing together. The tribunal has considered photographs, statements from the visa applicant’s mother, aunt, brother and sister (with identification and photographs with the statement attached) who all have met and talked to the review applicant. The tribunal is satisfied the review applicant and visa applicant had spent time together studying in Australia, and living together in Lahore after the Nikah prior to the time of application.

11. The tribunal is satisfied that at the time of application, and at the time of decision, the parties had, since turning 18, met and were known to each other personally.  Therefore, at the time of application, the requirements of cl.300.214 were met.

    Do the parties genuinely intend to marry?

12. 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. The tribunal has considered the oral evidence at the hearing and the written evidence provided to the tribunal prior to the hearing. The tribunal is satisfied that the review applicant was adamant that any marriage would take place in Australia and the visa applicant agreed to this. The tribunal accepts that the review applicant had had a difficult experience with her first marriage and the process of returning to China for the divorce. The tribunal accepts that the review applicant had studied Muslim doctrines and had made a commitment before religious people from the local mosque including an iman, prior to commencing a physical relationship with the visa applicant in Lahore in March 2014. The tribunal is satisfied that this religious commitment before witnesses is evidence of an intention of the parties to marry. The tribunal is satisfied based on the parties evidence that the  Nikah is the first step in a process leading to married and is the religious commitment at the commencement of the relationship. The tribunal accepts that the parties agreed to arrange their marriage in Australia after the visa applicant arrived. The tribunal has considered the written evidence provided by members of the review applicant’s family and the visa applicant’s family confirming the stated intention of both parties to marry in Australia. The tribunal accepts that at the time of application and at the time of decision the parties plan a civil ceremony in the Williamstown Gardens. The tribunal has also considered the letter from the marriage celebrant confirming that at the time of decision the proposed wedding date has been set for 15 September 2016. Both the review applicant and visa applicant stated in the hearing that they are aware the wedding had to be conducted within nine months.

13. Based on all the evidence before it the tribunal is satisfied that at the time of application and at the time of decision the parties had a genuine intention to marry, and to marry within the required visa period. For these reasons the tribunal finds 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?

14. 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.

15. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings. The tribunal is satisfied that the review applicant travelled to Pakistan and rented a home in Lahore, prior to the time of application. The tribunal is also satisfied that the review applicant returned to Pakistan and again rented home in the same suburb of Lahore for approximately 4 weeks in August 2015. The tribunal is satisfied that during these two visits the review applicant and visa applicant reside together and managed the household as a couple. The tribunal is satisfied that the visa applicant has met the review applicant’s disabled son, and that this boy travelled to Pakistan with the review applicant on both occasions. The tribunal accepts the evidence of both the review applicant and the visa applicant that the latter has established a good relationship with the review applicant son.  The tribunal has also considered the written evidence of the visa applicant’s family.

16. The tribunal is satisfied that the review applicant had a very difficult relationship with her first husband who visited her occasionally in Australia but did not remain with her and that she has had a difficult time caring for her son on her own. The tribunal accepts that the review applicant was unable to become employed as a nurse as she did not pass her English examinations. The tribunal accepts that the visa applicant is registered as a nurse and the parties plan that he would work as a nurse in Australia. The tribunal accepts that the parties wish to live on a small piece of land and grow their own vegetables and other plants. The tribunal accepts they have plans to travel and go camping. The tribunal is satisfied that the parties will continue to care for the review applicant’s son who is not capable of work. The tribunal is satisfied that the review applicant is learning about the Islam faith, and accepts that the parties have participated in the religious part of the marriage process, being the Nikah, in Pakistan.

17. The tribunal accepts that the parties come from different cultures and originally different religious bases and have a substantial age difference.  However, the tribunal accepts that the review applicant is particularly vulnerable, given her difficult relationship with her first husband and the difficulties she experienced in raising her disabled son on her own. The tribunal also accepts that the parties were friends for many years and the review applicant did not accept the visa applicant’s initial proposal and spent some time thinking about it. The tribunal also accepts that the review applicant did not accept the visa applicant’s proposal in Australia, and that they maintained contact whilst residing in different countries, and the visa applicant continued to support the review applicant via long-distance communication during the time of separation. The tribunal accepts this evidence indicates the parties have a genuine commitment to each other.

18. The tribunal has considered the review applicant’s visits to Pakistan, the parties’ plans for their future home and life together, the visa applicant’s relationship with the review applicant’s disabled son and the duration of the parties’ friendship and relationship. Based on all the evidence before it the tribunal is satisfied that the parties genuinely intend to live together as spouses at the time of application and continue to do so at the time of decision.

19. For all these reasons the tribunal is satisfied that at the time of application the parties did 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?

20. Clause 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.

21. For the reasons set out above, the tribunal is satisfied that at the time of decision the visa applicant intends to marry an Australian 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. Accordingly, cl.300.221 is met.

22. 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

23. 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.

    Margie Bourke
    Member