1922592 (Migration)

[2022] AATA 2652

1922592 (Migration) [2022] AATA 2652 (4 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sabinus Robi (MARN: 0849550)

CASE NUMBER:  1922592

MEMBER:Moira Brophy

DATE:4 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2022 at 4:34pm

CATCHWORDS
MIGRATION –Prospective Marriage (Temporary) (Class TO) visa – subclass 300– not satisfied the parties had met in person at the time of application – inconsistencies in the answers given at the time of hearing with evidence elsewhere on file – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,359
Migration Regulations 1994, Schedule 2, cl 300.214

CASES
MIAC v Yucesan & Anor (2008) 169 FCR 202

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 Home Affairs to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 27 June 2018. 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 (Cth) (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 300.214.

3. The delegate refused to grant the visa on 28 May 2020 on the basis that the visa applicant did not satisfy cl 300.214 of Schedule 2 to the Regulations because the delegate was not satisfied the parties had met in person at the time of application.

4. The Tribunal exercised its discretion to hold the second hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The review applicant appeared before the Tribunal on 10 June 2021 and on 22 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Background

8. The review applicant, [Ms B], is an Australian citizen who was born on [date]. She has declared no previous relationships. [Ms B] migrated to Australia on [date] June 2013 on a Humanitarian visa. [Ms B]’s parents and siblings are residing in Australia.

9. The visa applicant, [Mr A], was born on [date] and he currently lives in [Country 1]. His parents live in [Country 2], as does one brother and two sisters. He has [other siblings].

10. At the time of application, the parties stated that they met each other in [Country 3] on [date] December 2016. They committed to a shared life together to the exclusion of all others on 22 October 2017 by video with both sides of the family attending a [party]. On the application the parties stated they intended to marry on 2 April 2019.

    Tribunal proceedings

11. The issue in the present case is whether the review applicant and the visa applicant are able to satisfy cl 300.214.

12. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the review applicant and the visa applicant.

13. There were a number of inconsistencies in the parties’ oral evidence, and these were put to the review applicant following the hearing in accordance with s 359A of the Act. The Tribunal explained the relevance and the consequences of relying on that information. The discrepancies were as follows:

    • At the time of the first hearing on 10 June 2021, the review applicant told the Tribunal that she had returned with her family for a holiday in Africa. She had flown from Australia to Doha and then to [Country 3]. She said she had been in [Country 3] for two days before she had crossed the border into the Congo. When asked the distance from [Country 3] to the Congo, she said it had been a 20-minute drive and that no passport was necessary to gain entry to the Congo. When asked about the stamps in her passport that indicated she had entered [Country 3] and departed on the same day, she said her passport had been stamped when she arrived at the airport and had been stamped out when leaving [Country 3] at the Congo border. It was put to her that according to her passport, she was not in [Country 3] at the time that she and the visa applicant claim to have met.
    • At the time of the second hearing on 22 February 2022, the review applicant told the Tribunal that she had met the visa applicant on [date] December 2016 at a [Venue 1] in [City 1]. She had travelled with her family (mother and sisters) to visit family in the Congo, and she had gone to the [Venue 1]. After arrival at the airport in [Country 3] she and her family hired a bus and a driver who drove them straight through to the Congo. She said it was a five-hour drive. She said that when she and her family had arrived in the Congo, she had discovered one of the bags was missing and she had to return to [City 1] to collect that bag. She said her cousin had driven her back in her aunt’s car. She was in [City 1] for one day and that is when she went to [Venue 1] and met the visa applicant. It was an instant attraction, and she gave him her phone number, but he did not have a phone at the time. Her next contact from him was in February 2017.

    This was not consistent with evidence the review applicant provided to the Department:

    • As stated in the WhatsApp Chat from 25 November 2017 at 10:24 PM and 24 September 2018 at 2:50 PM: “I meet [Mr A] in [City 1] December [date] at the [Venue 1] [he] was working there… We were just talking. This was the time we went to Africa for holiday. After one week I went to the same [Venue 1] again for the second he told me he was interested in me, but I didn’t take it serious later on in January as we were preparing ourselves to come back to Australia, he asked me to give him my number which I did, and I left. It was a silence and later on we started communicating up know we are in love he even introduced his family to me. They come and meet my parents that means even my parents are aware of our relationship. I am applying for visas for him to come here for us to be.”
    • As stated in the Statutory Declaration signed by [Ms B] on 2 April 2019: “In December 2016 my family and I, travelled to Africa on holiday after many years. We spent time in [City 1], [Country 3], where I met my fiancée [Mr A] who worked [there]. The first time I met [Mr A] in [City 1] on the [date] December 2016 when I went to the [Venue 1] where he was [working]. I was about to leave after he finished, when he started talking to me telling me he fell in love the first time he saw me and asking where I was from and I told him I was from DRC Congo. I told him that, I lived in Australia that in [City 1], I was only for holidays. That we would be going back to Australia soon. He also asked for my phone number which I gave to him willingly. He told he was going to relocate to [Country 1] because business was not promising in [Country 3]. He also said he had a brother in Melbourne, Australia. Then we bid each other goodbye and that last time we saw each other.”

14. Submissions as to the inconsistencies in the oral evidence and additional evidence were received by the Tribunal on 14 March 2022. Those submissions have been considered when making a decision and where relevant those submissions will be referred to in the reasons below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

15. 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. According to the Explanatory Statement which accompanied the amendment in respect of visa applications made on or after 1 July 2013, the previous criteria allowed “the persons who only met in person as children to apply for and be granted the visa”. The change is one of a range of measures designed “to provide greater protections to applicants, who, on account of the young age, could become victims of forced marriage and/or people trafficking.” (Explanatory Statement to SLI 2013, No.146, p2.)

16. For visa applications made before 1 July 2013, the requirement is only that the parties have met (not that they have met “in person”) and know each other personally. The term “met and have known each other personally” is not defined in the legislation. However, the meaning to be given to the term was considered by the Court in MIAC v Yucesan & Anor (2008) 169 FCR 202 (Yucesan). The Full Federal Court held at [28] that the context of cl 300.214, in particular the anticipation of physical cohabitation, provides no reason to depart from the primary sense of “have met”, as requiring the parties to have come together in each other’s company or physical presence. The court found that the decision to marry contains a commitment to physical cohabitation and therefore it is unsurprising that cl 300.214 should require the parties to have met physically as one of the indicators that an intention to marry is genuine. Therefore, mere contact through letters, phone, fax or the Internet is not sufficient to satisfy cl 300.214. To satisfy cl 300.214 the couple must have met in person. This would exclude a range of marriages as well as Internet relationships unless the couple have met face-to-face prior to the time of visa application.

17. Departmental guidelines (PAM3) require the couple to have met in person since each turned 18. For visa applications made on or after 1 July 2013, these guidelines merely re-state the legislative requirement. For visa applications made before 1 July 2013, these guidelines appear to impose a narrower requirement than the actual terms of the criterion. In applying this interpretation, for pre-July 2013 applications, cl 300.214 may be satisfied if the parties met as children, as suggested by the Explanatory Statement accompanying the provision amending this criterion.

18. Clause 300.214 further requires the parties to be “known to each other personally”. This requirement is independent of the requirement that the parties “have met” – Yucesan at [16]. Although the meaning of this was not specifically considered by the Court in Yucesan, there appears to be no reason why the parties could not come to “know each other personally” through letters, phone, fax, email or Internet, provided the couple has met in person. Hence, to meet this criterion the parties may have met only briefly but come to know each other through other means of contact.

19. At the time of application, the parties stated they had met in person. As outlined above the evidence as to whether the parties had met in person was equivocal and inconsistent. The Tribunal was concerned as to the inconsistencies in the answers given at the time of hearing with evidence elsewhere on file. The Tribunal does not place weight on the evidence of the review applicant unless it is corroborated by other independent evidence.

20. The review applicant gave conflicting evidence about the circumstances of how and when she and the applicant had met for the first time. Those inconsistencies were put to the review applicant at the conclusion of the hearing in accordance with the requirements of s 359A and the Tribunal has considered the explanations provided. While the passage of time may dim some recollections of events, the Tribunal is of the view that when as in this case the parties do not reside in the same country, details of significant events and relationships are things you would remember with some specificity. Whilst it is appreciated the separation has been very difficult for the parties and this stress can of itself lead to some inconsistencies in the evidence given, the Tribunal is not satisfied the explanations given are sufficient to overcome the cumulative effect of the inconsistencies. Where there is a conflict between the explanations given and the evidence at the time of hearing the Tribunal is not persuaded the event took place as varyingly described.

21. The Tribunal was not satisfied on the evidence before it the review applicant and the visa applicant had met in person prior to the time of application.

22. Accordingly, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Moira Brophy
    Member