1505411 (Migration)

[2016] AATA 4140

1505411 (Migration) [2016] AATA 4140 (20 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sandrino Barutta

VISA APPLICANTS:  Ms Lea Cala-Or
Ms Angelie Malinao

CASE NUMBER:  1505411

DIBP REFERENCE(S):  BCC2014/1660591

MEMBER:Margie Bourke

DATE:20 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 20 July 2016 at 11:46am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 1 July 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.300.216 which requires the parties satisfy the Minister that they genuinely intend to live together as spouses at the time of application.

3. The delegate refused to grant the visas on 24 February 2015 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the parties genuinely intended to live together as spouses.

4. The review applicant appeared before the Tribunal on 9 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant via telephone, and from one witness Giuseppe de Cata.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the parties genuinely intended to live together as spouses at the time of application.

   First named visa applicant

8. In this decision the tribunal has referred to the first named visa applicant as the visa applicant, and has referred to the secondary visa applicant as the secondary visa applicant.

   Do the parties genuinely intend to live together?

9. 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.

10. The tribunal has considered the written and oral evidence before it. In relation to the personal circumstances of the review applicant and the visa applicant, the tribunal makes the following findings.

11. The review applicant is an Australian citizen, was born in 1936, and had been previously married.  He was divorced in 2009, has two adult married children, one child who died as a six year old as a result of an accident, and three grandchildren.  The review applicant has not discussed his relationship with the visa applicant, his engagement or his sponsorship of the visa applicant with any of his family members in Australia. The tribunal is satisfied that review applicant’s family have not been advised the review applicant has a relationship with the visa applicant. The review applicant owns his own home, and is a pensioner.

12. The review applicant stated he made a previous attempt to sponsor another Filipino woman and bring her to Australia as his bride. He stated, and the tribunal accepts, that due to difficulty with her ‘paperwork’, their proposed marriage could not take place, and the relationship ended.  The review applicant was not sure when this relationship occurred, except it was after his divorce and before he met the visa applicant. He was introduced to both women by the same person, his friend Guiseppe de Cata’s wife.

13. The visa applicant has three children, two of whom were studying and lived with her at the time of application.  The visa applicant’s son, who was one of the two children who lived with the visa applicant at the time of application, has chosen not to migrate to Australia with his mother. The secondary visa applicant is the visa applicant’s youngest child, a daughter aged 13 years at the time of application, and a dependent child within the meaning of r.1.03 and a member of the family unit of the first named visa applicant within the meaning of r.1.12(1)(b) at the time of application.

14. The visa applicant was employed as a child carer in Macau in 2013, and took leave in early 2014. The visa applicant has not worked since meeting the review applicant in March 2014.

15. The tribunal has then considered the evidence at the hearing, and 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.

16. The tribunal is satisfied the review applicant has provided the visa applicant with financial support, and was doing so at the time of application.

17. The review applicant and visa applicant had communicated via telephone prior to meeting in person in March 2014.

18. At the time of application the review applicant and the visa applicant gave oral evidence that they had spent ten days together at a hotel in the Philippines. The parties had provided written statements that they had met on 19 March 2014 and spent time together in a condo, during which time the review applicant met the visa applicant’s children and relatives. The visa applicant stated in the written statement that the review applicant departed on 26 March 2014, and the review applicant did not refer to the date of departure or the length of the stay.  In the oral evidence, both parties stated the time spent together in the hotel condo in the Phillipines was ten days. For the following reasons the tribunal doubts the credibility of the parties’ evidence.

19. The review applicant described this experience as “not romantic” as they spent ten days in the condo room, the room was too small for six people, the visa applicant’s children and her half sister stayed with them, and there was no door to the one bedroom in which the review applicant and the visa applicant slept.  The visa applicant stated they spent the first night in a hotel room,  then the stay at the hotel condo was romantic as the children stayed with them only every “other night”, their was a door to their bedroom, and her half sister only visited during the day. The tribunal put this inconsistent information to the review applicant pursuant to the s.359AA process.  The review applicant consulted with his representative during an adjournment and then elected to comment or respond. The review applicant stated the first night was romantic because they had stayed in a hotel room before getting the condo.  He stated the bedroom did not have a door into the other room in the condo; the visa applicant had meant the bedroom had a door out to the balcony, not an internal door to the other main room. The review applicant stated the children stayed every night after the first night, and the visa applicant was mistaken in stating the children did not sleep in the condo every night.  The review applicant stated the visa applicant was correct that her half sister did not stay every night, but the visa applicant’s half sister was there overnight for only the first two days.

20. The tribunal has considered the response and comments of the review applicant and finds that the evidence from the review applicant and the visa applicant is not consistent as to whether the visa applicant’s children stayed every night with them during the review applicant’s first visit, and whether each night was crowded and “not romantic” in the first days and nights they spent together. 

21. The tribunal is satisfied that at the time of application the review applicant and the visa applicant had met in person for the first time in March 2014.  The tribunal finds the inconsistent evidence as to whether the visa applicant’s children spent every night with the review applicant and the visa applicant, or every second or ‘other’ night with them indicates the evidence of the parties may not be reliable.  The inconsistent evidence indicates the parties may not have resided together in March 2014 at the condo as they claim.  The tribunal finds the inconsistent evidence was inconsistent in significant facts and details.  The tribunal finds the inconsistent evidence was in relation to facts and details which the tribunal would expect the parties would remember of their first days and nights together.  The tribunal finds the extent of the inconsistent evidence indicates to the tribunal that the parties’ evidence is not credible. The tribunal finds the evidence of the parties is not reliable, and for this reason the tribunal is not satisfied that the evidence of the parties is not reliable as evidence that the parties had a genuine intention to live together as spouses at the time of application.

22. The tribunal gives some weight to the evidence that the review applicant has not told his immediate family, including his adult children, of his relationship with the visa applicant and his intention to live with her as his spouse. The tribunal has considered the witness Mr de Cata described the review applicant as a “family man”, and a man who had a good relationship with his children and grandchildren. It is not consistent to be a person who has a sound relationship with his family and not disclose a new and significant relationship. The tribunal finds the review applicant’s omission to tell his immediate family of the sponsorship and proposed marriage to the visa applicant, indicates he may not genuinely have intended to live with the visa applicant as her spouse at the time of application.

23. The tribunal asked the review applicant to discuss his intentions with the visa applicant in relation to his home, his finances, their plans for the future, and what they discussed together. The review applicant stated that he discussed the “normal things” with the visa applicant. The review applicant stated he thought the visa applicant’s daughter would go to the local high school, and could learn English at the TAFE , but that he had not made enquiries about enrolling the child in either educational facility at the time of application.  He stated the visa applicant knows he has a house.  The tribunal gives significant weight to the lack of detail in the review applicant’s evidence about the plans for their future life together as spouses. The tribunal finds the review applicant’s evidence and his lack of detail about the future plans indicates the parties may not have had a genuine intention to live together as spouses at the time of application.

24. The review applicant stated he did not intend to marry the visa applicant in the Philippines as this would mean he would lose his pension. The tribunal does not accept this evidence as the review applicant stated he had attempted to marry another woman in the Philippines. The review applicant stated the Australian government would not let him marry anyone in the Philippines. The tribunal asked the review applicant to explain this statement.  The review applicant then stated that his solicitor stated that he could marry either in the Philippines or in Australia.  The tribunal finds the review applicant’s evidence about being prevented from marrying in the Philippines, and his reason for choosing to marry in Australia, to be dubious. The tribunal finds the review applicant’s evidence about his reason for marrying in Australia to cast doubt on a finding as to his genuine intention to live with the visa applicant as his spouse at the time of application.

25. The visa applicant stated that her plan when she came to Australia was that she intended that she would work, and support the children, as this was her responsibility as their mother.   The visa applicant did not include the review applicant in this responsibility except to state he would help her if needed.  The visa applicant was invited to give evidence about what she had discussed with the review applicant at the time of application, about their intentions, the home and their plans for when they lived together. The tribunal finds the visa applicant gave limited evidence except that she would work to support her children.

26. Both the review applicant and the visa applicant gave evidence that in their first telephone conversation, the review applicant agreed that the visa applicant could bring her children with her. The tribunal has considered the consistent evidence that the parties agreed at the outset that the visa applicant could bring the children with her. The tribunal has considered the consistent evidence that the parties discussed the visa applicant would bring her children with her if she came to Australia, and obtained the review applicant’s acquiescence at the beginning of their arrangements.  The tribunal is not satisfied that this outweighs the inconsistent evidence about the parties’ time together in March 2014 or that this outweighs the lack of evidence about the parties’ intentions to live together as spouses.  

27. The tribunal finds that there is not sufficient evidence that at the time of application the parties had a genuine intention to live together as spouses. The tribunal is not satisfied, based on the evidence before it, that the parties gave credible evidence of the time they spent together in March 2014.  The tribunal finds the parties’ evidence had insufficient detail of their intentions for their future lives together as spouses.   The tribunal also finds the evidence that at the time of application the review applicant had not disclosed to his adult children that he was in a relationship with the visa applicant, that he had become engaged and intended to marry the visa applicant indicates the review applicant did not genuinely intend to live with the visa applicant as spouses. The tribunal is not satisfied that the parties had a genuine intention to live together as husband and wife at the time of application; the tribunal is not satisfied based on the evidence that the parties planned to marry, or establish a household as spouses, or that they intended to represent themselves to the review applicant’s relatives as a married couple. The tribunal is not satisfied the parties had a future intention to be committed to each other in a long term relationship.

28. For the above reasons, the tribunal is not satisfied that at the time of application the parties had a genuine intention to live together as spouses, and therefore the visa applicant does not meet cl.300.216.

    Secondary visa applicant

29. The secondary visa applicant is the dependent child and member of the family unit of the first named visa applicant within the meaning of r.1.12(1)(b), and made a combined application with the first named visa applicant.   However, as the tribunal is not satisfied that the first named visa applicant is a person who satisfies the primary criteria in cl.300.216, the secondary visa applicant cannot meet the requirements of cl.300.311.

30. For the reasons above, the Tribunal finds the visa applicants do not satisfy the criteria for the grant of the visas.

    DECISION

31. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    Margie Bourke
    Member