1602144 (Migration)

[2016] AATA 4604

1602144 (Migration) [2016] AATA 4604 (28 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms OULA RAAD

VISA APPLICANT:  Mr AMMAR YASER  AHMAD MDALLAL

CASE NUMBER:  1602144

DIBP REFERENCE(S):  OSF2015/036012

MEMBER:Ann Brandon-Baker

DATE:28 October 2016

PLACE OF DECISION:  Sydney

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.300.215 of Schedule 2 to the Regulations;

·cl.300.216 of Schedule 2 to the Regulations; and

·cl.300.221 of Schedule 2 to the Regulations.

Statement made on 28 October 2016 at 12:55pm

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 24 March 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 14 February 2016 on the basis that the visa applicant did not satisfy; cl.300.216 and cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant had completed the requirements for a civil divorce and also because he was not satisfied that the parties have a genuine intention to marry and live together as spouses.

4. The review applicant appeared before the Tribunal on 27 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s eldest daughter, Salma, and the visa applicant via telephone from Jordan. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

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.

   BACKGROUND

7. The review applicant is an Australian citizen by grant born on 29 April 1973 in Tripoli, Lebanon. She was married on 17 April 1993 but that marriage ended in divorce on 18 May 2014. There are four children from this marriage born on 10/07/1994, 20/10/1995, 12/11/1998 and 21/01/2002.

8. The visa applicant is a citizen of Jordan born on 24 February 1978 and was previously married. That marriage ended in divorce on 1 July 2014. He has three children from that relationship born on 14/05/2001, 23/10/2005 and 14/08/2012.

9. The parties claim to have first communicated with each other via a website called gamezer in 2011 then subsequently through Facebook. They claim to have committed to a shared life together on 25 July 2014 when the review applicant travelled to Jordan for the first time. She returned to Australia at the end of August 2014 and has not returned.

10. The visa applicant told the delegate in an interview that he was going through a separation at the time they first began communicating and claim to have begun their romantic relationship in 2012.

11. The parties have provided a statement from Sheikh Nabeel Succarie stating that he will solemnise their marriage on 22 June 2015 as well as statutory declarations from family and friends attesting to the genuineness of the parties relationship, some telephone bills, chat records, Western Union receipts showing the review applicant has sent the visa applicant AUD$12,527 and some photographs of the couple together and with others in various locations.

12. During an interview with the delegate, the visa applicant claimed that the review applicant’s children would be living with their father when he comes to Australia. He told the delegate that he had never spoken to the review applicant’s children. However the review applicant’s daughter has claimed in her statutory declaration that she has chatted to him several times.

13. Prior to the hearing the Tribunal received no additional evidence from the parties.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the parties have a genuine intention to marry and live together as spouses.

15. The parties both gave credible and consistent evidence at the Tribunal’s hearing and the Tribunal accepts their claims. The Tribunal found the parties to be authentic and genuine about their relationship and honest in the evidence they gave.

    Do the parties genuinely intend to marry?

16. 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.

17. The visa applicant told the Tribunal that the delegate had not asked him to provide evidence of his civil divorce certificate which had subsequently been provided. The review applicant also provided the original document to the Tribunal. The Tribunal is satisfied that the visa applicant is not currently married and there is therefore no legal impediment to marry.

18. The review applicant told the Tribunal that she had not really focused on the wedding because the legalities of a marriage were not particularly important to her. She claimed that she did not need a piece of paper to validate her love and commitment to the visa applicant. She said that she had sought out the services of Sheik to conduct the ceremony. This Sheik is also a registered celebrant. After the ceremony they will have a simple family dinner at a restaurant. She told the Tribunal that depending upon the arrival of the visa applicant, the dates she would prefer to have the wedding would be either February 24 or 29 April – which are their respective birthdays – but she also said that she would like to have it on the anniversary of the day they first met which was 25 July. The visa applicant also told the Tribunal that he hoped to have the wedding on that day and confirmed that they would only have a small celebration with immediate family at a restaurant following the ceremony.

19. The Tribunal reminded the parties that their wedding had to be held within a certain timeframe and both told the Tribunal that they would make certain that if any of those dates were impractical in relation to the timing, that they would arrange their wedding accordingly.

20. Due to the uncertainty surrounding the timing of any visa grant, the parties have not set a particular date. It is clear to the Tribunal, however, that they have given serious thought and discussed a variety of dates which are important to them. Equally there has been discussion about the conduct of the wedding and both agreed that they only wanted a small party following the ceremony.  Both parties assured the Tribunal that they would marry within the visa period. 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 therefore satisfy the requirements of cl.300.215(a). The proposed date for the marriage will be 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?

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. 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.

23. The review applicant told the Tribunal that she lives in Villawood with three of her children. The eldest has moved out and lives with his wife. She explained to the Tribunal that her children spend a lot of time with their father, often at the weekends and this is why the visa applicant told the delegate that the children were living with their father. Her eldest daughter Salma has spoken to the visa applicant in passing and has heard her and the visa applicant talk when he is on speaker phone. She claims that she has put in an application to try and find different housing because the place where she currently lives is not very safe. If the visa applicant comes to Australia, she hopes that she will have moved into different accommodation, but in any case he will live with her and her three children.

24. The review applicant earns around $650 a fortnight from her job driving a bus for a disabled centre and also receives Centrelink payments of around $270 per fortnight. She also receives around $400 a fortnight from her children for room and board and pays $120 a week in rent for her 3 bed unit. She has no savings or assets apart from her car. She borrowed $12,000 from an Arabic loan system called Jameya which she repays at the rate of $500 per month. She has given this money to the visa applicant to invest in his mobile phone sales business. This investment returns her around $200 a month which he reinvests in his business. The parties claim that the visa applicant will retain this business even if he is allowed to come to Australia. If he cannot come, then the review applicant will come to Jordan and the business will support them financially.

25. The visa applicant earns around AUD$2000 a month which he uses to support his ex-wife and children and pay for his own living expenses. He was offered around AUD$95,000 for the sale of his business last year. The parties claim that they will keep the business as it will continue to provide funds to support them in the future, as well as the visa applicant’s children in Jordan. The visa applicant’s two brothers also own similar businesses next to his and they will run the business for him if he comes to Australia. The brothers and their parents all live in the same neighbourhood which is close to his ex-wife and his children.

26. It is clear to the Tribunal that the parties have had extensive and detailed discussions about the financial aspects of their relationship. The Tribunal is satisfied that this evidence supports a finding that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them is genuine and continuing.

27. The visa applicant sees his children almost every day and speaks to them frequently. The Tribunal questioned the visa applicant on his reasons for wanting to leave Jordan for Australia when his family life appeared close and mutually supportive. He claimed that he was in a very good relationship with the review applicant. They got along and understood each other completing. He told the Tribunal that he deeply loved the review applicant and she loved him in return. He said that if they were not in love and serious about their relationship he would not even consider leaving Jordan and his family.

28. The parties told the Tribunal that their relationship developed slowly from 2011. Both were in deteriorating marriages and sought comfort and advice from each other. The Tribunal pointed out that the visa applicant nonetheless had a child with his ex-wife in 2012. The visa applicant told the Tribunal that at the time he and the review applicant were friends and confided in each other about their problems. He claimed that it was only in early 2013 that they both realised that they were in love and wanted to be together. The review applicant decided to end her marriage early in 2013 because of her feelings for the visa applicant and her divorce was finalised in June 2014. The visa applicant said that the review applicant was not upset when he told her that he was having another child in 2012. Both parties told the Tribunal that he named the child, a daughter, after the review applicant’s eldest daughter, Salma.

29. The Tribunal was concerned that although the parties claimed that they loved each other and saw their relationship as genuine and ongoing, they had not seen each other in person since July 2014. The parties told the Tribunal that they see each other several times a day through skype and other apps, and are often on the phone for hours. The review applicant’s eldest daughter confirmed this when the Tribunal spoke to her via phone at the hearing. The last time they spoke was just before the hearing and two hours prior to that they were talking about the education of the children.

30. The parties told the Tribunal that they were waiting for an outcome of the Tribunal review and had not made plans to travel because of the uncertainty of when a hearing may be held. The review applicant claimed that her financial situation did not permit her to travel. The Tribunal pointed out that she borrowed $12,000 to invest in the visa applicant’s business so surely could find some money to travel to Jordan to see him if she took the relationship seriously. In any case, the Tribunal pointed out that the visa applicant could have applied for a visa to travel to Australia as a tourist. The review applicant claimed that her adviser told her not to apply for another visa whilst the review was underway. The Tribunal noted that she had since changed advisers and that adviser was not present to assist her in the hearing.

31. The parties told the Tribunal that the review applicant had a close relationship with his family and had personally met his parents and brothers, along with their spouses and children. He told the Tribunal that the review applicant often speaks to his mother, who was recently unwell. They claim that both families have come to support the relationship completely and their children accept their forthcoming marriage and are supportive of it. The Tribunal is satisfied that the evidence provided on the social aspects of their relationship support a finding that they view their relationship as a long term one and that the relationship between them is genuine and continuing.

32. If the visa applicant is allowed to come to Australia, the first thing they will do is plan their marriage. After that he will improve his English and try and find a job. The review applicant claims that her brother has a business where the visa applicant could work or they could consider at some stage in the future of opening another mobile phone business. The visa applicant said that if those options weren’t possible then he would work in a restaurant or do whatever was necessary to find some work. In the meantime the parties said that his business in Jordan and the review applicant’s income would support them. The visa applicant understood that the cost of living in Australia is high at around $4-5,000 a month and that they will both have to work to support themselves. They both thought that they would like to have more children but recognised that they may not be possible because of the review applicant’s age.

33. The visa applicant told the Tribunal that they were both of an age where they wouldn’t think about marriage unless they were 100% certain. He said that it was a different kind of love at their age, one where they fell in love with their minds as well as their hearts. This is what happened to us, he told the Tribunal, we fell in love.

34. The Tribunal is satisfied that the evidence provided by the parties at the hearing support a finding that they have a mutual commitment to a shared life as husband and wife to the exclusion of all other and the relationship between them is genuine and continuing. The Tribunal is satisfied that they do not live separately and apart on a permanent basis.

35. The Tribunal is satisfied that at the time of application, and at the time of this decision, the parties have a genuine intention to live together as spouses, and therefore cl.300.216 and cl.300.221 are met.

    CONCLUSION

36. 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.300.215 of Schedule 2 to the Regulations;

    ·cl.300.216 of Schedule 2 to the Regulations; and

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

    Ann Brandon-Baker
    Member