1601901 (Migration)

[2018] AATA 3701

1601901 (Migration) [2018] AATA 3701 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601901

MEMBER:John Billings

DATE:5 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2018 at 1:09pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Applicant did not respond to request for information – Applicant not entitled to appear before the Tribunal – Significant lack of evidence provided to the Tribunal – Insufficient evidence to conclude a genuine spousal relationship exists – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359(2), 359C, 360(3)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 300.216, 300.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 30 June 2015. 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 and cl.300.221.

3. The delegate refused to grant the visa on 8 December 2015 on the basis that [the applicant] did not satisfy cl.300.216 or cl.300.221 of Schedule 2 to the Regulations. That is, the delegate was not satisfied that at the date of application or the date of decision [the applicant] and his sponsor genuinely intended to live together as spouses.

4. The review applicant and [sponsor] applied for review on 17 February 2016.  She provided a copy of the primary decision to the Tribunal. 

5. [The sponsor] was represented in relation to the review by her registered migration agent.

6. There was no hearing. On 19 June 2018 the Tribunal wrote to [the sponsor] pursuant to s.359(2) of the Act inviting her to provide information to support claims that she and [the applicant] genuinely intend to live together as spouses. The deadline was 3 July 2018. There has been no response. In the circumstances, s.359C applies and pursuant to s.360(3) [the sponsor] is not entitled to appear before the Tribunal. The Tribunal has no power to permit her to appear.

7. [The applicant] is [an age] year old national of Sudan.  [The sponsor] is [an age] year old Australian citizen born in Sudan.  [The sponsor] first arrived in Australia on 20 April 2006 holding a Class XB Subclass 200 Refugee visa.  

8. According to the visa application and material in support, [the applicant] and [the sponsor] met in [Country 1], [in] November 2004.  They were engaged [in] March 2006.  The intended marriage date was given as [a particular date in] January 2016.

9. The Department’s file includes a copy of the relevant pages of [the applicant]’s Sudanese passport and [the sponsor]’s Australian passport, a relationship statement made by [the applicant], a notice of intended marriage and accompanying celebrant’s letter, and a record of remittances from [the sponsor] to [the applicant]. 

10. [The sponsor] has not submitted any material in support of the application to the Tribunal at any time. This is not only despite the s.359(2) invitation issued on 19 June 2018 but also despite the Tribunal sending [the sponsor] a letter dated 18 February 2016 advising her among other things that if she wished to provide material or written arguments for the Tribunal to consider she should do so as soon as possible.

11. The primary decision includes the following relevant information. 

12. [The applicant] has claimed that he and [the sponsor] were married according to their “traditions” but the marriage was not recognised by [Country 1] authorities. 

13. [The applicant] was interviewed by an officer of the Department on 25 November 2011.  According to the delegate [the applicant] was “not able to answer simple questions relating to the sponsor such as the name of the street where she lives, her financial situation or how much she pays for rent”.  Further, he provided a letter from the marriage celebrant but otherwise “failed to provide any detailed information ,other than that the wedding will be held at church”.  He “demonstrated limited information about the wedding preparations and the plans for [the] honeymoon”.  

14. In June 2004 [the applicant] was refused a visa under the refugee and humanitarian programme.  In April 2007 he was refused a Prospective Marriage visa on the basis of being engaged to [the sponsor].  His next application was the one made eight years later, on 30 June 2015.  He claimed the reason for not making a further application sooner was the cost of applying

15. Although in connection with the present application [the sponsor] declared that there was a “committed relationship” that commenced prior to her departure for Australia (in 2006), she failed to declare the relationship to the Department (in 2006).  She migrated claiming to be a dependent of her brother. 

16. Three photos, described by the delegate as “posed studio photos” were submitted to the Department – two showing [the applicant] and [the sponsor] in wedding attire with three “unknown” adults - but no other evidence was submitted to show that [the applicant] and [the sponsor] had presented themselves as an engaged couple to their friends, families or government bodies, or that they had cohabited or spent time together.  (The photos appear not to have been retained by the Department). 

17. Since [the sponsor] first arrived in Australia she has been offshore on three occasions – once in each of the years 2008/2009, 2009/2010 and 2012/2013.      

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Do the parties genuinely intend to live together as spouses?

19. 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 a married couple 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). While 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.

20. 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 determination.

21. The Tribunal has considered the record of remittances from [the sponsor] to [the applicant] that was submitted to the Department.  The record is dated [in] August 2015.  Ostensibly written on behalf of a money transfer company in Melbourne it states that remittances were made monthly on [the sponsor]’s behalf for the financial assistance of her “husband”, “[a misspelling of the applicant’s name]”, who was “currently living in [Country 2].  The remittances were said to have commenced in January 2014, but the records show 18 remittances from April 2014 to January 2015.  The amounts range from $50 to $500.  The Tribunal does not consider that the variation in the spelling of [the applicant]’s name is significant.  Further, while the delegate observed that [the applicant] had not earlier declared that he had been in [Country 2] at the relevant time, there may be ambiguity in what the author of the remittance record said about the timeframe.  Whatever the position, the evidence is of remittances over a limited period, ending about seven months before the date the record was produced.  The Tribunal considers this evidence to have very limited probative value. 

22. The record of remittances is the only evidence of any relevant financial arrangements.  The Tribunal is mindful that for the most part since the relationship is claimed to have been formed the parties have been residing in different countries.  However, there is no evidence that would enable the Tribunal to make any positive finding that [the applicant] and [the sponsor] have any joint ownership of real estate or other major assets or any joint liabilities or that either owes a legal obligation in respect of the other.  Further, the Tribunal is unable to find that there has been any pooling of financial resources or any sharing of day‑to‑day household expenses.  There is no evidence about what arrangements they propose to have in future. 

23. There is no claim or evidence to support a claim that the parties have any joint responsibility for the care and support of children.  [The applicant] and [the sponsor] may not have lived together.  On the evidence before it, the Tribunal is unable to make positive findings concerning the living arrangements of the parties during any time that they may have been together since the relationship is claimed to have been formed.  The Tribunal is unable to find that there has been any sharing of the responsibility for housework.  There is no evidence about what arrangements or responsibilities they propose to have in future. 

24. There are no photographs in the evidence before the Tribunal.  The Tribunal has mentioned the photographs referred to by the delegate.  There are statements or statutory declarations by third persons that would enable the Tribunal to be satisfied that [the applicant] and [the sponsor] represent themselves to other people as being an engaged couple.  The application and sponsorship name family members and other persons, but there is no evidence as to the opinion of the persons’ friends and acquaintances about the nature of the relationship.  There is no evidence as to any basis on which [the applicant] and [the sponsor] have ever planned or undertaken joint social activities. 

25. Considering the nature of the parties’ commitment to each other, the Tribunal notes that while it is claimed that the relationship has been in existence for many years there is no statement by [the sponsor] concerning the relationship beyond her bare responses in the sponsorship form.  The parties may not have lived together at all.  There is no evidence that would support a claim that they have lived together or that would enable a finding to be made about the length of time during which they have lived together.  Concerning the degree of companionship and emotional support that the persons draw from each other, there is no evidence beyond [the applicant]’s relationship statement that was submitted to the Department.    For instance, there is no evidence of phone or online communications between the parties during the time that they have been living in different countries.  [The applicant]’s statement is dated 16 September 2015.  The statement is superficial.  It asserts that the parties met in 2004 and got to know each other and maintained contact after [the sponsor] went to Australia.  The statement, incidentally, also asserts that [the sponsor] had visited [the applicant] on four occasions subsequently though, as noted in the primary decision, [the sponsor] has left Australia on three occasions only.  [The applicant]’s statement goes on to say that the relationship is happy and that the couple have been planning their future.  There is no or virtually no elaboration in the statement on these points.  Therefore, the Tribunal is not satisfied that there is any degree of companionship and emotional support that [the applicant] and [the sponsor] draw from each other.  Similarly, the evidence does not enable to conclude that the parties see the relationship as a long‑term one.

26. These considerations lead to the Tribunal being not satisfied that [the applicant] and [the sponsor] have ever had a genuine intention to live together as spouses. 

27. The Tribunal mentions some further matters.  The possible inferences that can be drawn from [the applicant] having unsuccessfully made visa applications before, or for the lapse of time there was after he was first refused a Prospective Marriage visa and he made the visa application now under consideration, are not necessarily adverse inferences.  On the other hand, while the delegate’s remarks about [the applicant]’s responses at interview may to some degree reflect an evaluation that the Tribunal has not been in a position to make for itself, his reported lack of knowledge casts serious doubts on the genuineness of his and [the sponsor]’s claims.  Potentially more serious than these matters is [the sponsor]’s failure to declare the relationship at the time she was migrating to Australia.  No explanation has been given.  Whether or not there is a satisfactory explanation, the main problem in this case remains.  That is the lack of evidence in support of the application, despite the opportunities that have been given to the parties to provide that evidence, both at the primary stage and on review.

28. On the above basis the Tribunal is not satisfied that at the time of the visa application [the applicant] and [the sponsor] genuinely intended to live together as spouses.  Therefore cl.300.216 is not met.  On the same basis, the Tribunal is not satisfied that at the time of decision the parties genuinely intend to live together as spouses.  Therefore cl.300.221 is not met.

29. For the reasons above, the Tribunal finds that [the applicant] does not satisfy the criteria for the grant of the visa.

    DECISION

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

    John Billings
    Senior Member