1730169 (Migration)

[2018] AATA 3543

1730169 (Migration) [2018] AATA 3543 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730169

MEMBER:Margie Bourke

DATE:17 July 2018

PLACE OF DECISION:  Melbourne

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 and cl.300.221 of Schedule 2 to the Regulations.

Statement made on 17 July 2018 at 3:37pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine relationship – wedding plans – proposed wedding date in visa period – financial support – support of immediate family – future plans – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 5, 360
Migration Regulations 1994 (Cth), Schedule 2 cls 300.211, 300.214, 300.215, 300.216, 300.221

CASES
Bretlag v MILGEA [1991] FAC 852

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 3 May 2017. 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. Relevantly to this matter the primary criteria include cl.300.216 and cl.300.221 which require the visa applicant and review applicant genuinely intend to live together as spouses at the time of application and the time of decision respectively.

3. The delegate refused to grant the visa on 28 November 2017 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, based on the minimal evidence provided to the Department, that the visa applicant and review applicant were in a genuine and ongoing committed relationship.

4. The tribunal has had the advantage of being provided with extensive submissions and information that had not been provided to the Department at the time of its decision. Based on the written material available to it and pursuant to s.360(2) the tribunal has determined to make a decision favourable to the applicant without inviting the review applicant or the visa applicant to appear before it.

5. The following are the reasons the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The main issue in the present case is whether the parties genuinely intend to live together as spouses.

7. I have noted that in the Department file the only information provided to the delegate was contained in the application for the visa, the marriage contract, some identity documents and the information noted in the interviews with Departmental officials. The tribunal has been provided with confirmation of the review applicant’s flights to [Country 1] in December 2017, furniture receipts in October 2017, a furnished rental apartment contract from December 2017 until April 2018 in [Country 1], a collection of money transfer receipts from May 2017 until January 2018, the visa applicant’s academic records, and a collection of photographs of the parties together.

8. The review applicant also provided a reference for the visa applicant from in Cairo, which the tribunal verified was genuine by contacting the author, who confirmed in a further email that he corroborates everything in the reference and that the visa applicant continues to work as a volunteer in the [workplace] and is a valued colleague. The review applicant provided references in relation to herself and the work she had done as [an occupation].. The review applicant provided a statutory declaration from a work colleague dated [in] April 2018, in which the deponent referred to the wedding plans and house hunting and referred to the review applicant and visa applicant’s relationship.

9. The review applicant provided a letter from her treating doctor dated [in] April 2018. The tribunal also contacted the clinic to verify this letter as there were some spelling errors in the medical report. The tribunal received an email from the medical centre confirming that the certificate was true and had been typed by the doctor himself.  The review applicant also provided copies of scripts provided by her treating doctor, and a referral to, and a mental health care plan dated February 2018. The tribunal also received a psychological letter of support from the review applicant’s psychologist dated [in] March 2018.

10. The review applicant provided a nine page typed statement which she entitled personal statement for priority application, which detailed the development of the relationship as well as her own personal circumstances. The review applicant also provided a detailed statutory declaration from her sister dated [in] May 2018 and a detailed statutory declaration from her ‘best friend’ dated [in] May 2018.

    Does the visa applicant intend to marry an eligible person?

11. 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. I am satisfied based on the information contained in the application for the visa and in the Department’s decision record dated 28 November 2017 that the review applicant is an Australian citizen. Therefore I am satisfied that the visa applicant intends to marry in Australian citizen and meets the requirements of cl.300.211, at both the time of application and the time of this decision.

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

12. 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. I have considered the information contained in the applicant’s statement, the statutory declarations provided, the dates of birth recorded on the identity documents and in the medical reports, and the dates of birth recorded in the application for the visa. I have also considered the photographs of the parties together. I am satisfied based on the information before me that the parties had met in person and were known to each other personally after they had turned 18 years. I am satisfied that they had met and were known to each other personally after they had turned 18 years both at the time of application and at the time of this decision. Therefore I am satisfied that the visa applicant meets the requirements of cl.300.214 at the time of application and at the time of this decision.

    Do the parties genuinely intend to marry?

13. 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. I have considered the contract of marriage provided to the Department and the booking in [Australia] for the wedding reception. I have considered the statement of the review applicant, the references and the statutory declarations of the friends and relatives of the parties. I am satisfied that the information before me establishes that the parties have a genuine intention to marry.  Based on the information before me I am satisfied that at the time of application and at the time of decision the parties had a genuine intention to marry and therefore meet the requirements of cl.300.215(a). The proposed date for the marriage in Australia at the time of application is within the visa period as required by cl.300.215(b). I am satisfied based on an assessment of all the information before me that the parties also intended to marry within the visa period at the time of decision. Therefore, the visa applicant meets the requirements of cl.300.215 at the time of application and at the time of decision.

    Do the parties genuinely intend to live together?

14. 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.

15. 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. I have considered all the evidence before me. I have considered the evidence that the parties resided together in [City 1] from December 2017. I am satisfied based on the evidence before me that the review applicant became pregnant, and subsequently miscarried during this time. I am satisfied that the review applicant has provided financial support to the visa applicant since their engagement. I am satisfied that the parties have provided emotional and compassionate support to each other during times when they have experienced grief over the loss of their baby, the death of close relatives and the illness of close relatives. I am satisfied that the parties have made plans for the future, and the review applicant has been making furniture purchases for their future home. I am satisfied that the review applicant resigned from her employment to spend more time with the visa applicant in [Country 1]. I am satisfied that the information before me indicates that that the immediate family of the review applicant support her engagement and marriage to the visa applicant. I have carefully assessed all the information and evidence provided to the tribunal. I am satisfied that the evidence demonstrates the parties have a genuine intention to live together as spouses.

16. I have applied the principles espoused in the case of Bretag v MILGEA [1991] FCA 582, and I have considered the subsequent history of the relationship to determine the existence or nonexistence of facts relevant to making findings at the time of application. I am satisfied based on the information provided to the tribunal in relation to the subsequent history of the relationship that at the time of application the parties genuinely intended to live together as spouses.

17. I have considered the information provided relating to the financial aspects of the relationship, their plans about the nature of the household, the information provided by others about the social aspects of their relationship and the parties’ commitment to each other. I am satisfied that both the time of application and the time of decision the parties genuinely intend to live together as spouses. Therefore at the time of application and at the time of decision the visa applicant meets the requirements of cl.300.216.

    Do the parties continue to meet time of application requirements?

18. 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. For the reasons set out in the above paragraphs I am satisfied that the visa applicant continues to meet the requirements of 300.211, 300.214, 300.215, and 300.216 at time of decision.  Accordingly, the visa applicant meets the requirements of cl.300.221.  

19. 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

20. 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 and cl.300.221 of Schedule 2 to the Regulations.

    Margie Bourke
    Member