Alsaleem (Migration)

[2023] AATA 3860

Alsaleem (Migration) [2023] AATA 3860 (21 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Caroline Alsaleem

VISA APPLICANT:  Mr Mahmoud Nuhad

CASE NUMBER:  1916644

HOME AFFAIRS REFERENCE(S):          BCC2018/3546081

MEMBER:M. Edgoose

DATE:21 July 2023

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 21 July 2023 at 10:09am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry – genuine intention to live together as spouses – no response to s.359 invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.211, 300.214, 300.215, 300.216, 300.221

CASES
Hasran v MIAC [2010] FCAFC 40

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 18 September 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.

3. The delegate refused to grant the visa on 2 May 2019 on the basis that the visa applicant did not satisfy cl 300.216 and cl 300.221 of Schedule 2 to the Regulations.

4. On 6 July 2023 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide information about the current circumstances of your relationship and whether you and your partner have married in writing.  

5. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 20 July 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant has not provided the information, within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 300.221 requires that, at the time of decision, the visa applicant continues to satisfy the criteria in cls 300.211, 300.214, 300.215 and 300.216. Those criteria require that, at the time the visa application was made, the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; the parties have met and are known to each other personally; the parties genuinely intend to marry and intend to do so during the visa period; and the parties genuinely intend to live together as spouses. Accordingly, in order to determine whether the visa applicant continues to meet those requirements, it is first necessary to consider whether they were met at the time of the visa application.

   Does the visa applicant intend to marry an eligible person?

9. 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. Ms Caroline Alsaleem, the review applicant in this matter is an Australian citizen. Accordingly, the requirements of cl 300.211 are met.

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

10. 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 delegate’s decision the couple first met in person on 1 June 2018 when the visa applicant went with his sister to visits the review applicant’s family. Therefore, at the time of application, the requirements of cl 300.214 were met.

    Do the parties genuinely intend to marry?

11. 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. According to the Application for migration to Australia by a partner form completed by the applicant on 18 September 2018 the applicant stated that the parties intended marriage was set down for 8 March 2019 however according to the delegate’s decision dated 2 May 2019 the parties intended marriage was set down for 1 October 2018. The delegate has made an error with their date given that on the Department file a Notice of Intended Marriage was submitted that stated the couple intended to marry on 8 March 2019. Given this at the time of application the parties had a genuine intention to marry and therefore satisfy the requirements of cl 300.215(a). The intended date of marriage, 8 March 2019 has since passed, and the review applicant has not provided the Tribunal with an updated intention to marry form at time of this decision. Therefore, the proposed date for the marriage is not within the visa period as required by cl 300.215(b).Accordingly, the requirements of cl 300.215 are not met at time of this decision.

    Do the parties genuinely intend to live together?

12. 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 reg 1.15A(3) for spousal relationships: reg 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.

13. 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 review applicant in this matter has not provided any further evidence to the Tribunal since the delegates decision was made on 2 May 2019. Although applying to this Tribunal to have the delegates decision reviewed on 25 June 2019 no further evidence has been submitted to the Tribunal in relation to reg 1.15A(3).

14. On the basis of the above the Tribunal is not satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl 300.216 is not met.

    Do the parties continue to meet time of application requirements?

15. 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. The review applicant in this matter has not provided any further evidence to the Tribunal since the delegates decision was made on 2 May 2019. Although applying to this Tribunal to have the delegates decision reviewed on 25 June 2019 no further evidence has been submitted to the Tribunal. Accordingly, cl 300.221 is not met.

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

    DECISION

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

    M. Edgoose
    Member