Azram (Migration)

[2021] AATA 1654

Azram (Migration) [2021] AATA 1654 (29 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Salma Azram

VISA APPLICANT:  Mr Waqas Ali

CASE NUMBER:  1906107

DIBP REFERENCE(S):  BCC2017/4717800

MEMBER:Joseph Francis

DATE:29 March 2021

PLACE OF DECISION:  Perth

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

Statement made on 29 March 2021 at 2:04pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – intention to live together as spouses – sponsor travelled to Pakistan – limited evidence of communication – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 300.216; r 1.15

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 11 December 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. 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 300.216.

3. The delegate refused to grant the visa on 31 January 2019 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because they were not satisfied there was sufficient evidence to demonstrate that both parties intend to live together as spouses in accordance with the definition of spouse provided in section 5F of the Act.

4. The delegate refused to grant the visa on 31 January 2019 and the sponsor lodged an application for review with the Tribunal on 14 March 2019.

5. The Review applicant (sponsor) was not represented, however appointed her father as the contact for review by the Tribunal. On 11 January 2021 The Tribunal wrote to the applicant and sponsor and invited them to provide further information to support the claim that the parties genuinely intend to marry and live together as spouses, and any information to show that the parties have met and are known to each other personally.  The parties were provided until 25 January 2021 to reply.

6. On 16 January the Tribunal received an email from the sponsor requesting an extension to provide any information.

7. On 18 January 2021 the Tribunal wrote to the sponsor indicating that an extension to  provide any information had been approved, providing until 8 February 2021.

8. On 4 February the sponsors father submitted a signed (undated) statement from his daughter in reply to the invitation to submit further information.

9. On 16 March the sponsor declined the right to a hearing by email from her father with an attached ‘Response to hearing invitation’ signed by the sponsor.

10. The Tribunal therefore proceeded to make a decision based on the information that was available both to the delegate and additional evidence submitted to the Tribunal.

11. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the parties have a genuine intention to marry and live together as a married couple.

13. Additional evidence that was submitted to the Tribunal includes:

    ·     Register of Mutations of Land Village Darwesh, Tehsil & District Haripur dated 15 October 2018

    ·     Unsigned and undated statement from Ms Salma Azram, the visa sponsor and review applicant, submitted with the application for review.

    ·     Pakistan Affadavit of Mr Waqis Ali, the visa applicant, signed and dated 9 October 2018, indicating the parties were engaged in Pakistan by mutual consent of the families of both parties.

    ·     Copy of Registration of Land Owners file for District Haripur for year 2012-2013.

    ·     Copy of Registration of Land Owners file for District Haripur for year 2010-2011

    ·     Copy of land Valuation Certificate from Haripur dated 1 February 2019

    ·     Photographs that appear to be of the sponsor and applicant, and other parties, without explanation or dates.

    ·     Email from the visa applicant to DFAT enquiring about visa fee payment dated 26 October 2017.

    ·     Copy of message exchanges that appear to be between the parties dated from 25 January 2017 to 10 March 2017.

    ·     Flight bookings for sponsor to travel from Perth to Islamabad and return from 26 January 2019 returning 3 February 2019.

    ·     Message exchanges that appear to be between the parties, mostly not translated and without explanation, dated from 24 January 2017 through until 2 July 2017.

    ·     Statement submitted to the Tribunal on 4 February 2021 by the visa sponsor, signed but undated, in support of the relationship.

    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.

16. No evidence of communication between the parties occurring since 2 July 2017.

17. Whilst I accept that the relationship is known by family members of both parties, it would be reasonable to expect that in a genuine engagement the parties would be able to submit more recent evidence indicating they remained in contact. I am concerned, that having been provided the opportunity, the most recent evidence of communication between the parties that submitted was dated nearly four years ago.

18. I accept that the sponsor travelled back to Pakistan for one week from 26 January 2019 until 3 February 2019. In the statement provided to the Tribunal submitted on 4 February 2021 the sponsor claimed that this was for the purpose of arranging to take some pictures in order to satisfy the delegate.

    “We arranged a get together and took some pictures just to satisfy the officer”.

19. The Tribunal considered the photographs that appear to be of the parties with other people.  The individuals in the photographs were not identified and were not provided explanation.  As such I am unable to determine whom the other people are in the photographs or the context that they were taken. Considering that the only return travel to Pakistan from the sponsor was over two years ago, I place little weight on the travel and photographs as evidence in support of a genuine intention to live together as a married couple.

20. Without explanation and without accepting the invitation to attend a hearing in order to provide any explanation, I am unable to place any weight on or consider the relevance of any other documents submitted to the Tribunal in support of the genuine intention of the parties to live together as a married couple.

21. 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.

22. For the reasons above, 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.

    Joseph Francis
    Member