1515931 (Migration)

1515931 (Migration) [2016] AATA 4662 (8 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Marcus Victor Gibson
VISA APPLICANT:  Ms Hannie Lyn Cortes Lacia
CASE NUMBER:  1515931
DIBP REFERENCE(S):  BCC2014/2395728
MEMBER:Susan Trotter
DATE:8 November 2016
PLACE OF DECISION:  Brisbane
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
·cl.300.221
·cl.300.221A

of Schedule 2 to the Regulations.
Statement made on 08 November 2016 at 6:04pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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, Ms Lacia, a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).
Ms Lacia applied for the visa on 22 September 2014 on the basis of her intention to marry her sponsor, Mr Gibson. 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 delegate refused to grant the visa on 30 October 2015 on the basis that Ms Lacia did not satisfy cl.300.221A of Schedule 2 to the Regulations because they were not satisfied that Ms Lacia was free to marry Mr Gibson, as required at the time of decision, as at the time of the delegate’s decision there was no evidence that Ms Lacia’s marriage to Edilberto Lacia had been terminated or dissolved.
Mr Gibson lodged an application for review of the delegate’s decision with the Tribunal on 20 November 2015.
Mr Gibson appeared before the Tribunal on 8 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gibson’s sister, Ms Robin Baker and Mr Gibson’s friend, Mr Jye Amery.
For the following reasons, the Tribunal has concluded that the matter should be remitted.
ISSUES
The Prospective Marriage (Temporary) (Class TO) visa is a temporary visa of nine months duration for persons seeking to enter Australia to marry, after their first entry to Australia, an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse with a view to remaining permanently. 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 relevant primary criteria to be satisfied at the time of the visa application include that:
(a)the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen: cl.300.211;
(b)the visa applicant and sponsor have met and are known to each other personally: cl.300.214;
(c)the visa applicant and sponsor genuinely intend to marry and intend that the marriage will take place within the visa period: cl.300.215; and
(d)the visa applicant and sponsor genuinely intend to live together as spouses: cl.300.216.
The visa applicant and sponsor also need to continue to meet these primary criteria at the time of decision: cl.300.221.
Additionally, cl.300.221A requires that at the time of decision there is no impediment to the marriage in Australian law. If the applicant or prospective spouse is under 18, the Minister must be satisfied that they will turn 18 before the end of the period within which the intended marriage is to take place, or have an Australian court order issued under s.12 of the Marriage Act authorising the parties to marry. In the latter case, the Minister must be satisfied the marriage will take place: cl.300.221B.
It follows that the issues to be decided by the Tribunal are as follows:
(a) At the time of the visa application and now, did and does Ms Lacia intend to marry Mr Gibson and is he an Australian citizen, Australian permanent resident or an eligible New Zealand citizen?
(b) At the time of the visa application and now, had and have Ms Lacia and Mr Gibson met and were they and are they known to each other personally?
(c) At the time of the visa application and now, did and do Ms Lacia and Mr Gibson genuinely intend to marry and intend that the marriage will take place within the visa period?
(d) At the time of the visa application and now, did and do Ms Lacia and Mr Gibson genuinely intend to live together as spouses?
(e)Is there now at the time of decision any impediment to marriage between Ms Lacia and Mr Gibson in Australian law?
CONSIDERATION OF CLAIMS AND EVIDENCE
Ms Lacia is a 44 year old citizen of the Philippines. Mr Gibson is a 55 year old Australian citizen by birth.
This visa application was lodged on 22 September 2014. According to the visa application lodged by Ms Lacia, she and Mr Gibson met in person on 1 December 2012 at the Treasury Casino in Brisbane, committed to a shared life to the exclusion of all others on 20 December 2013 and intended to marry on 20 December 2015.
Issue 1 - At the time of the visa application and now, did and does Ms Lacia intend to marry Mr Gibson and is he an Australian citizen, Australian permanent resident or an eligible New Zealand citizen?
The Tribunal has sighted a copy of Mr Gibson’s birth certificate and is satisfied that at the time of the visa application and now he was and is an Australian citizen. Based on written and oral evidence before the Tribunal, the Tribunal is also satisfied that at the time of visa application and now, Ms Lacia intended and intends to marry Mr Gibson. It follows that the requirements of cl.300.211 were met at the time of application and continue to be met now.
Issue 2 - At the time of the visa application and now, have and had Ms Lacia and Mr Gibson met and were they and are they known to each other personally?
The Tribunal accepts the documentary and oral evidence before it that Ms Lacia and Mr Gibson personally met for the first time on 1 December 2012. The Tribunal is therefore satisfied that at the time of the visa application and now, Ms Lacia and Mr Gibson had and have met and were and are known to each other personally. It follows that the requirements of cl.300.214 were met at the time of the visa application and continue to be met now.
Issue 3 - At the time of the visa application and now, did and do Ms Lacia and Mr Gibson genuinely intend to marry and intend that the marriage will take place within the visa period?
The Tribunal notes that this will be Ms Lacia’s second marriage and Mr Gibson’s first marriage. Ms Lacia was previously married on 27 April 1993 to Mr Lacia. The Tribunal accepts that at the time of the visa application, it was anticipated that an annulment of Ms Lacia’s first marriage would soon be forthcoming and that Ms Lacia and Mr Gibson would be free to marry within nine months of the visa being granted (allowing for expected processing time). However, the annulment process in relation to Ms Lacia’s first marriage took longer than anticipated and the annulment was not finalised until 5 January 2016, and not registered until 26 April 2016. Nonetheless, the Tribunal is satisfied that at the time of the visa application Ms Lacia and Mr Gibson genuinely intended to marry and intended at that time that the marriage would take placed within the visa period.
There is no formal evidence of an intention to marry, such as a Notice of Intention to Marry, before the Tribunal. However, the Tribunal accepts the evidence before it, including the oral evidence of Mr Gibson and the witnesses and the documentary evidence, that Ms Lacia and Mr Gibson intend to marry as soon as it possible to arrange after the visa is granted and that it is intended that the marriage take place in Australia. Notably in this regard, the Tribunal placed significant weight on the occurrence of a wedding celebration, albeit not legal, which occurred in December 2015 between Ms Lacia and Mr Gibson in the Philippines. The Tribunal accepts Mr Gibson’s evidence that that celebration took place in the Philippines at a time when many of Ms Lacia’s family could attend, with one of his friends also attending, and that a legal marriage, although a modest event, with his family and friends in Australia, is planned in Australia, as soon as possible. The Tribunal notes that the marriage must take place within 9 months of the visa being granted and is satisfied that that is Ms Lacia’s and Mr Gibson’s intention.
The Tribunal is therefore satisfied that the requirements of cl.300.215 were met at the time of the visa application and continue to be met now.
Issue 4 - At the time of the visa application and now, did and do Ms Lacia and Mr Gibson genuinely intend to live together as spouses?
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 this visa application, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships, that is the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other: r.1.15A(4). Whilst it is not appropriate to consider whether the visa applicant and the sponsor are spouses, an investigation of the visa applicant’s and the sponsor’s intentions with regard to the definition of spouse in the legislation may assist in determining the visa applicant’s and the sponsor’s aspirations. The question is whether they genuinely intend to live together as spouses.
Formation and development of the relationship
The Tribunal accepts Mr Gibson’s evidence that Ms Lacia and Mr Gibson first met at the Treasury Casino in Brisbane when Ms Lacia was visiting her sister and her husband in Australia, that they thereafter kept in regular contact, including one further visit by Ms Lacia to Australia to visit Mr Gibson and numerous subsequent visits by Mr Gibson to visit Ms Lacia in the Philippines. The Tribunal notes that since the end of 2015, Mr Gibson has been spending extended periods of time living with Ms Lacia in the Philippines in a house which has been purchased in Ms Lacia’s name with funds provided by Mr Gibson. The Tribunal notes that Mr Gibson had returned to Australia just days before the hearing for the purposes of the hearing and is otherwise intending upon returning to the Philippines until Ms Lacia is able to come to Australia. The Tribunal the decision by Mr Gibson to spend most of his time in the Philippines was made for a number of reasons including that Ms Lacia’s last visitor visa application to Australia was refused and she could not visit him in Australia.
Ms Baker and Ms Avery also gave evidence consistent with the evidence of Mr Gibson as to the formation and development of the relationship between Ms Lacia and Mr Gibson. The Tribunal accepts all of the oral evidence before it in its entirety.
Financial aspects of the relationship
With regard to the financial aspects of the relationship, the Tribunal accepts the oral and documentary evidence that Mr Gibson has financially covered all of Ms Lacia’s expenses since 2013 and additionally has provided funds for Ms Lacia to buy a house in the Philippines for them both to live in pending this visa application. The Tribunal also accepts the corroboratory evidence of Mr Avery, a chartered accountant, who told the Tribunal that as a friend of Mr Gibson and a chartered accountant, he is aware of Mr Gibson’s financial circumstances and is able to confirm those financial arrangements. Additionally the Tribunal accepts Mr Avery’s evidence that is aware that Mr Gibson’s has made significant allowance in his will for Ms Lacia.
The Tribunal is satisfied that the financial aspects of the relationship are consistent with an intention by Ms Lacia and Mr Gibson, at the time of the visa application and now, to live together as spouses.
The nature of the household
The Tribunal accepts that Ms Lacia and Mr Gibson have spent numerous periods of time together since meeting, including one later visit by Ms Lacia to Australia in late 2013 and numerous visits, including extended visits, by Mr Gibson to the Philippines. In particular, the Tribunal accepts that Mr Gibson has resided with Ms Lacia in the Philippines during his visits including for approximately two months from December 2015 and another two months from September 2016. The Tribunal accepts that during their periods of time together, Ms Lacia and Mr Gibson have established a household consistent with their intention to marry and that they intend to establish a household in Brisbane together in Mr Gibson’s property which is currently being rented until March 2017 but will then be available to them.
The Tribunal accepts that Ms Lacia and Mr Gibson have, at all times since deciding to marry, genuinely held plans to establish a household together, and have done so in the Philippines, with plans to do so in Australia when possible. The Tribunal is satisfied that this is consistent with their intention, at the time of the visa application and now, to live together as spouses.
The social aspects of the relationship
The Tribunal accepts the evidence of Mr Gibson that since the commencement of their relationship both he and Ms Lacia have represented themselves to family, friends and acquaintances as being in a relationship, and have since May 2014 when he proposed, represented themselves as intending to marry. This included on the occasion of the marriage celebration held in December 2015. Although not a legal marriage, it was celebrated in a formal manner consistent with a usual wedding, and witnessed by Ms Lacia’s family and one of Mr Gibson’s friends. The Tribunal also accepts the evidence of Ms Baker and Mr Avery at hearing which was entirely consistent with Mr Gibson’s evidence in this regard. The Tribunal is also satisfied, having had the benefit of seeing a number of photographs, that Ms Lacia and Mr Gibson socialise both together and with family and friends and have done so throughout their relationship.
The Tribunal is satisfied that at the time of the visa application and now, the social aspects of the relationship between Ms Lacia and Mr Gibson were and are consistent with their claimed relationship and a genuine intention to live together as spouses.
The nature of the persons’ commitment to each other
Ms Lacia and Mr Gibson have now known each other for nearly four years. The Tribunal is satisfied on the evidence before it that there is a significant level of commitment between Ms Lacia and Mr Gibson, as confirmed by the numerous periods of time spent together since meeting, including more recently extended periods of time of Mr Gibson living with Ms Lacia in the Philippines. The Tribunal is satisfied that it is not Mr Gibson’s choice to spend so much time in the Philippines but that he has chosen to do so, and to forgo work and live off his savings, for extended periods because of his commitment to the relationship. The Tribunal also had regard to Mr Gibson’s evidence that whilst he has had girlfriends before, this is the first time that he has ever asked someone to marry him and it is simply his desire to live in Australia with Ms Lacia and enjoy life at an age when he has many years of hard work behind him and wishes to now have enjoyment of life with his chosen partner/wife for a long-term future. Further, the Tribunal puts weight on the wedding celebration between Ms Lacia and Mr Gibson in December 2015, which although not a legal marriage, as evidence of the significant commitment between Ms Lacia and Mr Gibson, consistent with their claimed relationship at the time of the visa application and now and their continuing genuine intention to legally marry.
Having had regard to all of the circumstances of the relationship, the Tribunal is satisfied that Ms Lacia and Mr Gibson had and have a genuine intention to live together as spouses at the time of the visa application and now. It follows that the requirements of cl.300.216 were met at the time of the visa application and continue to be met now.
Issue 5 - Is there now at the time of decision any impediment to marriage between Ms Lacia and Mr Gibson?
It is not in dispute that a valid marriage in the Philippines can only be terminated by annulment or by the death of one party to the marriage. There is no evidence before the Tribunal that Mr Lacia is deceased.
The delegate’s decision, a copy of which Ms Lacia provided to the Tribunal with her application, records that Ms Lacia provided documents to the Department showing that annulment proceedings in relation to her marriage to Mr Lacia were in progress before the Regional Trial Court in the Philippines.
Mr Gibson provided the Tribunal with a copy of a Judgment of the Regional Trial Court of the Republic of the Philippines dated 5 January 2016 with judgment including to declare “the Marriage Contract of the parties[1] dated April 27, 1993, as without legal force and effect”. Further, Mr Gibson provided the Tribunal with a copy of a certification from the City Civil Registry Office of the Philippines that the Declaration of Absolute Nullity of Marriage issued by the court on 5 January 2016 was registered in the Civil Registry of the Philippines on 26 April 2016. At hearing, Mr Gibson presented the original of the judgment and the Tribunal is satisfied that the copy provided to the Tribunal is a true and correct copy of the original document sighted.
[1] With the parties named as Hannie Lyn Cortes Lacia and Edilberto B Lacia
The Tribunal is satisfied that the marriage between Ms Lacia and Mr Lacia which was entered into on 27 April 1993 was declared to be null and void by the Regional Trial Court of the Republic of the Philippines on 5 January 2016. The Tribunal is therefore satisfied that Ms Lacia’s marriage to Mr Lacia has ended, that the marriage has been annulled and that Ms Lacia is free to marry Mr Gibson at the time of the decision. The Tribunal is therefore satisfied that there is no impediment to the marriage between Ms Lacia and Mr Gibson at the time of decision.
As there is not any impediment to the proposed marriage under Australian law, cl.300.221A is satisfied.
Conclusion
The Tribunal observes that as regards a subclass 300 visa application generally, a visa applicant must be outside Australia when the application is lodged and when the visa is granted, the visa is of nine months duration, the intended marriage must take within that visa period and can either take place in Australia or outside Australia but must be recognised as a valid marriage in Australia and must first be preceded by at least one entry by the visa applicant to Australia before the marriage, a date which would normally be advised to the visa applicant upon grant of the visa by the Department.
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
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
·cl.300.221
·cl.300.221A
of Schedule 2 to the Regulations.
Susan Trotter
Member

[2016] AATA 4662

8 November 2016

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