1603500 (Migration)

[2016] AATA 4802

1603500 (Migration) [2016] AATA 4802 (10 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ana Silvia Avalos

VISA APPLICANT:  Onesimo Antonio Gonzalez Victorino

CASE NUMBER:  1603500

DIBP REFERENCE(S):  BCC2014/3281534

MEMBER:P. Wood

DATE:10 December 2016

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 10 December 2016 at 5:00pm

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Genuine intention to live together as spouses – Inconsistent evidence – Plans rudimentary and vague – Lacking credibility

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulation 1994, Schedule 2 cl 300.215, 300.216, r.1.15A

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 1 December 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 clauses 300.215 and 300.216.

3. The delegate refused to grant the visa on 24 February 2016 on the basis that the visa applicant did not satisfy clauses 300.215 and 300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicants genuinely intend to marry and live together as spouses.

4. The review applicant appeared before the Tribunal on 19 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by conference telephone with the assistance of an accredited interpreter in the Spanish (Central and South America) and English languages.

5. The review applicant was represented in relation to the review by her 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 applicants genuinely intend to live together as spouses.

   Do the applicants genuinely intend to marry?

8. 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.

9. The review applicant told the Tribunal that she intends to marry the visa applicant on 5 February 2017 in Melbourne, Victoria. She told the Tribunal that they intend to get married in the Botanical Gardens before a civil celebrant. When the Tribunal pursued this line of questioning the review applicant said that she had found the civil celebrant on the Google search engine but had forgotten how much the civil celebrant charges for her services. She answered “sorry my mind got blank”. When the Tribunal asked the review applicant what day of the week 5 February 2017 is, the review applicant said that it is a Saturday. The visa applicant said that he didn’t know whether 5 February 2017 was a Saturday or Sunday. 5 February 2017 is of course a Sunday. The Tribunal considers that if the applicants genuinely intend to marry as they have claimed, they would at least know details basic information such as the day of the week they are getting married and the professional fee of the civil celebrant that they have retained.

10. The Tribunal finds that the applicants’ plans in relation to their claimed future wedding seem rudimentary and vague. The Tribunal therefore finds that at the time of application the parties did not have a genuine intention to marry and do not satisfy the requirements of cl.300.215(a). Therefore, the requirements of cl.300.215 are not met.

    Do the applicants genuinely intend to live together?

11. 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).

12. 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 applicants’ intentions with regard to the definition of spouse in legislation may assist in determining the applicants’ aspirations. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine future intentions, the Tribunal identified a number of issues with the evidence which cause it to question the credibility of the applicants:

    ·     The visa applicant is the brother of the husband of the review applicant’s best friend, Ms Morena Campos.  The review applicant told the Tribunal that she has been friends with Ms Campos for ‘many years’ and they attend the same evangelical church together. The review applicant told the Tribunal that the visa applicant added her on Facebook on 16 June 2014. When the Tribunal asked the review applicant what she had heard about the visa applicant before he is said to have added her on Facebook on 16 June 2014 the review applicant answered that, despite being ‘best friends’ with Ms Campos for a number of years, Ms Campos did not tell her about the visa applicant until June 2014, the same month that the visa applicant is said to have added the review applicant on Facebook. When the Tribunal continued this line of questioning, the review applicant then said that Ms Campos had in fact told her that her husband had brothers before June 2014, but that she didn’t take any interest. That is, the review applicant seemed to vacillate in her evidence.

    ·     When the Tribunal asked the visa applicant when he first had contact with the review applicant he said that it occurred on 16 June 2014 when Ms Campos introduced the applicants via the telephone. The review applicant didn’t say anything about this, claiming that their first contact was on Facebook. The visa applicant said that they talked a couple of times and that his religion didn’t allow him to be on Facebook. The visa applicant told the Tribunal that he could not remember the first time that he had Facebook contact with the review applicant.

    ·     The Tribunal asked the applicants about the circumstances surrounding the proposal. The review applicant said that the proposal occurred in a bedroom, whereas the visa applicant said that it occurred in a big room which was separate from the bedrooms.

    ·     The review applicant is presently unemployed and in receipt of the Commonwealth disability support pension. She told the Tribunal that she is presently looking for work performing reception duties or in a shop. When the Tribunal asked the visa applicant whether the review applicant was looking for work, he said that she was not.

    ·     The review applicant told the Tribunal that her brother-in-law owns and operates a pizza shop in Keilor Road, Essendon, Victoria. When the Tribunal asked the review applicant whether she had discussed with the visa applicant the possibility of him working in the pizza shop she answered that she had not had such a discussion with him. When the Tribunal asked the visa applicant the same question, he said that they had discussed the possibility of him working in the pizza shop and said that they had discussed the idea of him performing deliveries for the shop. When the Tribunal asked how many times they had had this discussion, the visa applicant answered that they had had the discussion on several occasions and said that he thought that they had discussed the notion of him working in the pizza shop about four times.

    ·     The Tribunal asked the review applicant how many times her daughter has had contact with the visa applicant. She answered that it was quite a few times and estimated that it was on more than twenty occasions. When the visa applicant was asked the same question, he answered that it was on four or five occasions. The Tribunal is concerned by this obvious discrepancy.

13. Whilst it may be possible to explain further one or more of these issues with their evidence, it is the force of the issues together which leads the Tribunal to the conclusions it has reached.

14. The Tribunal does not accept their evidence regarding the conception and development of the relationship and is concerned by the inconsistent evidence about their introduction to each other and the fact that the review applicant’s best friend of many years is the sister-in-law of the visa applicant.

15. The Tribunal is not satisfied that the applicants demonstrated knowledge of each other’s lives and plans for the future such that they genuinely intend to live together as spouses.

16. The Tribunal has carefully considered the applicants’ personal circumstances and the extent to which those circumstances may have impacted on their evidence and/or might explain their lack of knowledge about each other. But, in the Tribunal’s view, the circumstances are not explainable simply because of an individual’s ability to recall particular detail. The most likely explanation for this evidence, which the Tribunal infers, is that the applicants have not been truthful and have contrived their evidence. The Tribunal finds the applicants’ evidence to be unreliable, and therefore, lacking credibility.

17. In view of the Tribunal’s concerns regarding the applicant’s credibility, the Tribunal is not satisfied on the available evidence that the applicants provide each other with companionship or emotional support of a couple who genuinely intend to live together as spouses.

18. The Tribunal finds that at the time of application the parties did not have a genuine intention to live together as spouses, and therefore cl.300.216 is not met.

19. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    P.  Wood
    Member