Al Mbayed (Migration)

[2021] AATA 454

Al Mbayed (Migration) [2021] AATA 454 (24 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Sara Al Mbayed

VISA APPLICANT:  Mr Yamen Alnassar

CASE NUMBER:  2008826

DIBP REFERENCE(S):  BCC2018/6079583

MEMBER:Helena Claringbold

DATE:24 February 2021

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.300.216 of Schedule 2 to the Regulations.

Statement made on 24 February 2021 at 1:46pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – financial, household and social aspects of relationship – nature of commitment – COVID-19 travel restrictions – plans for wedding and honeymoon in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5F
Migration Regulations 1994 (Cth), r 1.14A(3), (4), Schedule 2, cls 300.216, 300.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 10 January 2019, Mr Yamen Alnassar, the visa applicant, applied for a Prospective Marriage (Temporary) (Class TO) visa. The application was based on his prospective marriage with Miss Sara Al Mbayed, the sponsor and review applicant.

2. On 21 May 2020, a delegate of the Minister of Home Affairs refused to grant the visa. The delegate was not satisfied that the visa applicant and the sponsor genuinely intend to live together as spouses. Therefore, the visa applicant did not meet cl.300.216 and 300.221 of the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 26 May 2020, the sponsor provided the Tribunal with a copy of the Delegate’s decision Record. This is a review of the delegate’s decision brought by the sponsor.

3. On 23 February 2021, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal was conducted with the assistance of an interpreter in the Arabic language. The review applicant was represented in relation to the review by her registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Home Affairs (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether at the time of application the visa applicant and the sponsor (the parties) intended to live together as spouses.

   BACKGROUND

   The visa applicant was born in 1991 in Hama, Syria. His parents and two siblings live in Syria. He did not declare any previous partner relationships.

   The sponsor was born in 1990 in Damascus, Syria. Her parents live in Australia. Two of her siblings live in Australia and one of her siblings lives in Turkey. The sponsor did not declare any previous partner relationships. On 25 March 2017, she entered Australia.

   On 1 October 2011, the parties met at Damascus University in Damascus, Syria. On 4 August 2018, the parties became engaged. The sponsor provided Notices of Intention to Marry (NOIM) with marriage dates of 22 September 2019, 1 February 2020, 1 September 2020 and 24 March 2021. On 21 May 2020, the visa applicant was refused Prospective Marriage (Temporary) (Class TO) visa.

   Do the parties genuinely intend to live together as spouses?

7. 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).

8. 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, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.

   CLAIMS AND FINDINGS

9. 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.

   The financial aspects of the parties’ relationship

10. The parties’ income is derived from their salaries and from a carer payment the sponsor receives with regards to her father. The parties have their individual banking accounts, where their salaries are deposited. They each provide for their own day‑to‑day household expenses.  However, the visa applicant’s salary does not always cover his expenses and the sponsor has transferred some money to him to assist. The parties intend to combine their financial matters when they are living together. The parties do not have any joint ownership of real estate or other major assets or any joint liabilities.  They do not pool financial resources, especially in relation to major financial commitments and do not owe any legal obligation in respect of the other person. The Tribunal accepts that the sponsor has sent money to the visa applicant and that there may be some sharing of day-to-day household expenses.

    The nature of the parties’ household

11. The sponsor lives with her parents and younger sister in Australia.  She works as an assistant for children who have autism spectrum disorder and acts as a carer for her father. The visa applicant lives in Damascus, Syria in rented accommodation which he shares with a flat mate. He works as a senior accountant for a telecommunications company. The parties do not have any joint responsibility for the care and support of children and have not shared the responsibility for housework. The sponsor stated that the parties have not established their household. Before the visa applicant arrives in Australia, the sponsor will look for a unit to rent close to her parents. She knows that the visa applicant will have no problems helping in their future home duties. The Tribunal accepts that the parties live in separate countries and have not established their household.

    The social aspects of the parties’ relationship

12. The parties met in 2011 at Damascus University and went out with a group of friends to cafes. Nine months after the sponsor migrated to Australia the visa applicant contacted her via Facebook. In 2018, the sponsor travelled to Damascus.  The parties met every day and went to cafes or would visit the visa applicant’s sister or go to the sponsor’s family home in Damascus. On 4 August 2018, the visa applicant invited the sponsor to a restaurant in Damascus and proposed to her and the parties exchanged rings. The proposal was witnesses by the sponsor’s cousin and his wife and their daughter and the visa applicant’s mother and sister. During the sponsor’s visit in 2018, the parties shared their social activities.  They intend to share and plan their social activities in Australia. The sponsor will organise a venue for the parties’ wedding and make a booking for their honeymoon in Sydney. 

13. Statutory declarations dated 2019 are from Mrs A and Ms A.  Mrs A, the sponsor’s mother stated the following. She has not met the visa applicant but has been in contact by phone. She knows the sponsor loves the visa applicant and they are in contact daily. The sponsor travelled to Syria in 2018 and the parties became engaged. The parties will marry and raise a family in Australia. Ms A, the sponsor’s sister stated the following. She has not met the visa applicant but had spoken with him. The parties had known each other for a few years and resumed their relationship in early 2018. Gradually the relationship developed and they fell in love. The sponsor travelled to Syria in July 2018 and the parties became engaged. The sponsor talks with the visa applicant daily. The parties plan to marry and live as husband and wife. A psychological assessment report relating to the sponsor provided details about the parties’ relationship.

14. The Tribunal accepts that the parties represent themselves and are seen as being in a prospective marriage relationship and that they have planned and undertaken some social activities together.

    The nature of the parties’ commitment to each other

15. The parties met in 2011 at Damascus University.  In 2014 the visa applicant went to Tishreen University to continue his studies but returned to Damascus University once every six months. In March 2017, the sponsor migrated to Australia with her father and sister and nine months later the visa applicant contacted her on Facebook. The parties continued to communicate and in 2018, the sponsor travelled to Syria. On 4 August 2018, the visa applicant proposed to the sponsor and the parties became engaged. After the sponsor returned to Australia, the parties communicated daily and support each other emotionally and psychologically. The sponsor had intended to travel to see the visa applicant but civil unrest and her family circumstances and the COVID-19 pandemic have prevented her travel.  On the visa applicant’s arrival in Australia, the parties will arrange their marriage. They will live in rented accommodation.  Initially, the visa applicant will accept any employment but it is his intention to eventually work in his area of expertise either in an employed capacity or in his own business.  The parties plan to build a family together and have agreed to have two children. They plan to save to buy a car and their own home.

16. The Tribunal accepts the following. The parties have been friends since 2011 and have been in an engaged relationship since 4 August 2018. They have not lived together.  They have experienced difficulties in being separated and in their personal circumstances. These included difficult family circumstances relation to the sponsor and changing living conditions for the visa applicant in Syria. During these times the parties have offered each other companionship and emotional support and continue to see their relationship as long-term.

17. This decision record is a synopsis of all the evidence which the Tribunal has considered individual and completely. With regard to the considerations for a spousal relationship and the degree these factors may be applied to determine a future intention, the Tribunal is satisfied that the sponsor and the visa applicant demonstrated knowledge of each other broadly consistent with a couple who intend to live together as spouses. The Tribunal examined the parties’ knowledge of their individual and combined financial affairs; the nature of their respective households; their families, including the visa applicant’s siblings and the sponsor’s family in Australia; the recognition of their relationship by their families; the social aspects of the parties’ relationship and the nature of the parties’ commitment to each other. Having discussed these aspects thoroughly at hearing and as recorded in the Tribunal audio recording, the Tribunal is satisfied that the parties genuinely intend to live together as spouses.

18. The Tribunal is satisfied that at the time of application the parties genuinely intended to live together as spouses Therefore, the visa applicant meets cl.300.216 of Schedule 2 to the Regulations.

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.300.216 of Schedule 2 to the Regulations.

    Helena Claringbold
    Member