Assoum (Migration)

[2023] AATA 4738

Assoum  (Migration) [2023] AATA 4738 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Mouna Assoum

VISA APPLICANT:  Mr Abdul Basset El Kheir

CASE NUMBER:  2308997

HOME AFFAIRS REFERENCE(S):          BCC2021/636781

MEMBER:Katie Malyon

DATE:28 November 2023

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 300.214 of Schedule 2 to the Regulations.

Statement made on 28 November 2023 at 2:38 pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – request for prior processing – security situation in Lebanon – met in person and known to each other personally – extensive photographic evidence provided – amenable to being satisfied after the time of application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 300.214

CASES
Berenguel v MIAC [2010] HCA 8

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, Lebanese national Mr Abdul Basset El Kheir, applied for the visa on 9 November 2021. 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. Relevant to this matter, the primary criteria include cl 300.214 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on 30 May 2023 on the basis that Mr El Kheir did not satisfy cl 300.214 of Schedule 2 to the Regulations because he and his sponsor, Australian citizen Miss Mouna Assoum, had not met in person since each of them had turned 18 years of age. Based on the delegate’s review of Departmental movement records, it was evident that Mr El Kheir had never travelled to Australia and, further, Miss Assoum had last departed and re-entered Australia in 2011. At that time, Mr El Kheir was just 16 years of age. As noted in the delegate’s decision, a copy of which was provided to the Tribunal, the couple claimed to have been introduced by a family friend member and, following spending time online together with family and friends, they became engaged via an online Zoom call on 15 October 2021. No photographic evidence was provided to the Department to confirm that the couple had been physically in each other’s presence since they had turned 18.

4. Following refusal of Mr El Kheir’s Subclass 300 visa application, Miss Assoum applied to the Tribunal for review of the delegate’s decision.  Miss Assoum appointed her friend and neighbour, Mrs Abdul-Rahman, as the person who should receive communication on her behalf. 

5. In support of the review application, Mrs Abdul-Rahman provided extensive documentation when lodging the review application with the Tribunal on 22 June 2023.  Documentation included evidence of Miss Assoum’s travel to Beirut on 25 April 2023 via Dubai and then her return to Australia on 17 June 2023, multiple photographs of Miss Assoum with Mr El Kheir together in Lebanon as well as the couple’s celebration of their engagement with family and friends. 

6. Subsequently, Miss Assoum wrote to the Tribunal on 30 October 2023 requesting priority processing of her review application.  She explained that she had planned to travel to Lebanon again in November 2023 but was unable to do so given the dangerous and uncertain situation there as well as the advice from the Australian Government not to travel to Lebanon: as a consequence, she has had to cancel her travel plans.  Miss Assoum explained that the situation in Lebanon is having an adverse impact not only on her mental health but also her children who are finding it stressful that Mr El Kheir is not able to come to Australia quickly.

7. The Tribunal’s Registry considered Miss Assoum’s request for prior processing.  It acknowledged the Smart Traveller website was updated on 28 October 2023 to advise Australians not to travel to Lebanon due to the current volatile security situation there and the risk of the security situation deteriorating further.  The website states “If you're in Lebanon and wish to leave, you should depart through the first available commercial option as soon as you're able to do so.”  Further, it noted the Tribunal’s National Registry Procedures indicate that priority may be granted to applicants residing overseas in a war zone or country which is experiencing political upheaval or civil unrest.  The Registry acknowledged that daily military action is occurring in southern Lebanon and it could escalate quickly: as such, the security situation in the region remains unpredictable.  For these reasons, the Registry accepted that compelling reasons exist which warrant the granting of priority to this case.

8. Following constitution of the matter and review of documentation in both the Department and Tribunal files, the matter was set down for an expedited hearing.

   Hearing – 21 November 2023

9. Miss Assoum appeared before the Tribunal on 21 November 2023 to give evidence and present arguments.  The Tribunal also received oral evidence from Mrs Abdul-Rahman.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the visa applicant Mr El Kheir and his prospective spouse Miss Assoum are able to satisfy cl 300.214 of Schedule 2 to the Regulations.

    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.

13. At the commencement of the hearing the Tribunal acknowledged that, based on the extensive photographic evidence provided as well as Miss Assoum’s travel itinerary, her travel overseas as confirmed by the Department’s movement records, statements of support from Mr El Kheir’s family and friends in Lebanon and other documentation provided, it was evident that Mr El Kheir and Miss Assoum had, in fact, met in person.  It noted, however, that it remained unclear from claims in some of the documentation lodged with the Tribunal as to whether the couple had, in fact, married in Lebanon or whether they had merely celebrated their engagement with family and friends there.  

14. In this regard, the Tribunal was provided with multiple photographs of Miss Assoum and Mr El Kheir as the couple and also with family and friends labelled ‘Evidence of our engagement’.  However, an email dated 21 September 2023 from Mrs Abdul-Rahman states that Miss Assoum and Mr El Kheir ‘have married and started a life together as a couple‘ (evidence added).  She adds that Miss Assoum is not able to provide a Marriage Certificate to the Tribunal as she has only just received her Lebanese Divorce papers.  The same email states Mr El Kheir’s ‘brother is an Imam, a Muslim spiritual leader who was witness to their marriage and perform (sic) the ceremony’ . 

15. As noted in the delegate’s decision, the couple claimed they we became engaged via an online Zoom call on 15 October 2021.  Miss Assoum told the Tribunal that she and Mr El Kheir agreed to marry each other online on that date but, as confirmed by the Divorce Certificate lodged with the Tribunal prior to the hearing, although the divorce from her first husband Ahmad Assoum took place on 17 January 2021 the divorce was not able to be registered by the Registrar of Civil Department in Beirut until 19 September 2023.  She added that, in the circumstances, she was not able whilst she was in Lebanon from late April until early July 2023 actually able to formally marry Mr El Kheir and register their marriage with the relevant Lebanese authority.  Miss Assoum said it was the delay in having her Divorce Certificate registered that totally frustrated the couple’s ability to marry during her 2½ months absence from Australia.  She acknowledged the statements made in Ms Abdul-Rahman’s email of 21 September 2023 referred to above and said reference should have been to the couple’s formal engagement, not their marriage. 

16. Miss Assoum told the Tribunal that she and her fiancé Mr El Kheir had intended to marry in Lebanon on 28 October 2023 but her travel plans – and, therefore, her marriage – had been put on hold due to the Australian Government’s travel advisory about travelling to Lebanon.  The Tribunal acknowledged receipt of an updated Form 40SP Sponsorship for a partner to migrate to Australia dated 1 July 2023 lodged with the Tribunal on 6 July 2023 confirming the couple’s (then) plans for their wedding to be held in Lebanon on 28 October 2023. 

17. It is acknowledged by the Tribunal that the delay in processing the review application has caused Miss Assoum some distress.  In the circumstances, following her request for priority processing and subsequent constitution of the matter, the Tribunal has moved promptly to remit this case to the Department. 

18. The Tribunal has considered information provided by Miss Assoum and Mrs Abdul-Rahman.  Based on available evidence, the Tribunal is satisfied that Miss Assoum travelled to Lebanon via Dubai.  She arrived in Beirut on 29 April 2023 and met her fiancé Mr El Kheir in person for the first time.  Accordingly, the Tribunal finds that the applicant Mr El Kheir and his prospective spouse Miss Assoum have met in person and, further, they were both over the age of 18 at that time.  Miss Assoum is currently 42 years of age and Mr El Kheir is 28.  Having regard to the extensive information evidencing online and telephone communications between the couple prior to and after Miss Assoum’s arrival in Lebanon as well as multiple photographs of their time together in Lebanon and the statements in support of their relationship provided from family and friends, the Tribunal is satisfied that the parties are known to each other personally. 

19. Consistent with the decision in Berenguel v MIAC [2010] HCA 8, the criteria in Subdivision 300.21 of Schedule 2 to the Regulations is amenable to being satisfied after the time of application. Based on available information, the Tribunal is satisfied that the requirements in cl 300.214 of Schedule 2 to the Regulations are met.

20. Given the finding 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.

21. To assist the Department within the assessment of the remaining requirements for grant of the visa, it will provide the Department with the updated Form 40SP and Miss Assoum’s registered Divorce Certificate.  In passing, the Tribunal notes it recommended during the hearing that Miss Assoum and Mr El Kheir obtain competent professional advice to assist them lodged necessary documentation to enable the Department to expeditiously finalise Mr El Kheir’s Subclass 300 Prospective Marriage visa application. 

    DECISION

22. 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 300.214 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member