1512283 (Migration)

[2016] AATA 4134

1512283 (Migration) [2016] AATA 4134 (12 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Sajma HASANOVIC

VISA APPLICANT:  Mr Ramo SULIC

CASE NUMBER:  1512283

DIBP REFERENCE(S):  BCC2014/1226486

MEMBER:Amanda Goodier

DATE:12 July 2016

PLACE OF DECISION:  Perth

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.300.212 of Schedule 2 to the Regulations;

·cl.300.213 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;

·cl.300.221 of Schedule 2 to the Regulations; and

·cl.300.221A of Schedule 2 to the Regulations.

.

Statement made on 12 July 2016 at 3:10pm

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.

3. The delegate refused to grant the visa on 20 August 2015 on the basis that the visa applicant did not satisfy cl.300.216 as the delegate was not satisfied the parties had a genuine intention to live together.

4. The review applicant applied to the Tribunal for the review of the delegate’s decision. Accompanying her application for review the review applicant provided a large volume of documentary evidence in respect of her relationship with the visa applicant. Considering the additional material provided, the Tribunal did not consider a hearing necessary in reaching its decision, as it was able to find in favour of the applicant on the basis of the material before it pursuant to s360(2)(a) of the Act. 

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the visa applicant intend to marry an eligible person?

7. 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.

8. The Tribunal is satisfied on the evidence provided that the visa applicant intends to marry a person who is an Australian citizen. 

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

   Is the review applicant prohibited from being a sponsor?

10. Clause 300.212 requires that at the time of application the review applicant is not prohibited from being a sponsor in certain circumstances where she was granted a woman-at-risk visa in the five years immediately preceding the current visa application. On the evidence before it, the Tribunal finds that the review applicant is not prohibited from being a sponsor.

11. Accordingly the requirements of cl.300.212 are met.

    Is the visa applicant sponsored by an eligible person?

12. Clause 300.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where the review applicant has not turned 18, by the review applicant's parent or guardian who has turned 18 and is either an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The Tribunal accepts that the review applicant is an Australian citizen who has turned 18 years of age.

13. Accordingly the requirements of cl.300.213 are met.

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

14. 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.

15. The Tribunal is satisfied on the evidence provided that the visa applicant and sponsor have met in person on several occasions since each of them have turned 18 years and that they are known to each other personally. 

16. Therefore, at the time of application, the requirements of cl.300.214 were met.

    Do the parties genuinely intend to marry?

17. 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.

18. Evidence was provided indicating that a Notice of Intended Marriage has been lodged and it is intended that the marriage will take place on 22 October 2016.

19. At the time of application the parties had a genuine intention to marry and 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).

20. Therefore, the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together?

21. 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.

22. The delegate was concerned that at the time of his interview, the visa applicant demonstrated a superficial knowledge of the sponsor’s circumstances and provided inconsistent information as to whether various family members knew other family members.  The delegate gave considerable weight to a finding that the visa applicant’s motivation for entering into the relationship with the review applicant was for economic purposes based on the economic circumstances and social-economic problems experienced in the visa applicant’s home country.

23. 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.

24. The Tribunal has had regard to the evidence provided relating to the parties’ intention to share financial aspects of the relationship. Both parties are working. The Tribunal considers that it is difficult for the parties to plan any joint financial arrangements or the establishment of a household when one party is residing outside Australia. The Tribunal gives significant weight to the fact that the review applicant has incurred substantial costs travelling overseas on several occasions since commencing a relationship with the visa applicant, spending several weeks overseas with him on each occasion. The Tribunal also gives weight to the cost incurred by the visa applicant in travelling to Malaysia to spend time with the review applicant. The review applicant has purchased a home where they envisage living and sharing their lives together.

25. The Tribunal has had regard to the evidence provided relating to the parties’ intentions as to the social aspects of the relationship.  The review applicant is well known to the visa applicants’ family and the visa applicant is known to the review applicant’s family.  Both families recognise the relationship and provided evidence as to the nature of the relationship, indicating that they considered the relationship to be genuine and the parties very much in love with each other.   The family members provided written evidence supporting the intention of the parties to marry  

26. The Tribunal has had regard to the evidence provided relating to the nature of persons’ intended commitment to each other, including the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

27. The parties have evidenced their continuing contact over the last three years as their relationship has developed. 

28. The evidence indicates that the parties are committed to one another as prospective spouses. They have known one another since meeting at a party January 2013 and have remained in close contact since then. They became engaged, with the visa applicant proposing over skype and the parties celebrating during a visit by the review applicant to the visa applicant’s family.  The review applicant has travelled overseas on several occasions to spend time with the visa applicant and both parties met in Malaysia to spend time together.  The Tribunal has before it numerous photographs of the parties together and with family members and friends.  They both view their relationship as long term.  A consideration of the evidence as a whole strongly suggests that the review applicant and the visa applicant have a genuine commitment to one another as prospective spouses.

29. The Tribunal is satisfied on the evidence presently before it that at the time of application the review applicant and the visa applicant genuinely intended to live together as spouses.

30. 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?

31. 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.

32. On the basis of all of the evidence, the Tribunal is satisfied that the visa applicant and review applicant genuinely intend to live together as spouses at the time of decision, in that they intend to be validly married, they have a mutual commitment to a shared life as husband and wife, they intend to form a relationship which is genuine and continuing and they intend to live together.

33. Accordingly the requirements of cl.300.221 is met.

    Is there an impediment to the proposed marriage between the parties

34. Subclause 300.221A requires that at the time of decision there is no impediment to the proposed marriage between the parties. There is no evidence before the Tribunal that would suggest the proposed marriage between the visa applicant and review applicant would be invalid under Australian law.

    CONCLUSIONS

35. Given these findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 300 visa. If the visa applicant is found to meet the remaining criteria, then the visa applicant is entitled to the grant of a Subclass 300 visa.

    DECISION

36. 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.300.212 of Schedule 2 to the Regulations;

    ·cl.300.213 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;

    ·cl. 300.221 of Schedule 2 to the Regulations; and

    • cl. 300.221A of Schedule 2 to the Regulations.

    Amanda Goodier
    Member