Bahta (Migration)

[2018] AATA 1886

Bahta (Migration) [2018] AATA 1886 (3 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yemane Teklu Bahta

VISA APPLICANT:  Ms Selamawit Asmelash Gebrewahed

CASE NUMBER:  1606429

DIBP REFERENCE(S):  BCC2014/1048320

MEMBER:Amanda Mendes Da Costa

DATE:3 May 2018

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 03 May 2018 at 9:12am

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Whether the parties have met in person since each of them turned 18 – No evidence provided to the Tribunal – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(3)
Migration Regulations 1994 (Cth), Schedule 2, cl 300.214

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 18 April 2014. 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.300.214.

3. The delegate refused to grant the visa on 1 April 2016 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 there was any objective evidence that the review and visa applicants had met in person since each of them turned 18 and are known to each other personally.

4. It is in these circumstances that on 4 April 2018, the Tribunal wrote to the review applicant pursuant to s359(2) of the Act, inviting him to provide further information to support his claims that he and Ms Gebrewahed were genuinely intending to marry and live together as spouses. Mr Bahta did not reply to this invitation.

5. As a consequence, pursuant to s360(3) of the Act the review applicant lost any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The Tribunal notes that the review applicant has not engaged in the review process and did make any request for an extension of time or provide reasons for not responding for the Tribunal’s request to provide it with further information.   Accordingly, for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the parties have met in person since ach of them turned 18 and whether they are known to each other personally.

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

8. 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. The Tribunal notes that in the visa application the visa applicant nominates the review applicant as her partner and states that they met in person in Khartoum, Sudan in April 2005 and committed to a shared life together to the exclusion of all others on 7 January 2013. The Tribunal notes that the visa applicant was born on 12 March 1978 and is aged 40 years of age. The review applicant was born on 21 February 1983 and is 35 years of age. The Tribunal is satisfied that the parties had turned 18 years as at April 2005.

9. The Tribunal further notes that the review applicant gave the same information in his Form 40Sp- Sponsorship for a partner to migrate to Australia, dated 30 December 2013.

10. A perusal of the Department’s file shows that on 18 February 2016 the Department wrote to the visa applicant, inviting her to provide evidence that she had met her sponsor in Sudan as claimed.  The Tribunal notes that the visa applicant did not respond to this request.

11. On 6 May 2016, the review applicant wrote to the Tribunal advising as follows:

    “Ms Selamawit my fiancé lodged the prospective visa application on April 18, 2014 to the Australian Embassy in Tel Aviv, Israel.

    After Miss Selma my wet lodged her application, I applied to get travel document to Australian immigration in order to travel to Israel and celebrate our wedding ceremony there, but unfortunately the Australian immigration did not issue me travel document because at the time I was not permanent resident of Australia.

    After I got Australian citizenship, I issued Australian passport and travel to Israel in order to celebrate our wedding ceremony. I did not directly travel to Israel. First I travelled to Ethiopian to visit my relatives who would not be able to attend and be blessed by them for my marriage and then travelled to Israel.

    Upon my arrival at Tel Aviv airport I was refused to get into the town and kept me there for 15 hours and returned back to Ethiopian and then from Ethiopian came back to Australia.

    Before I plan to travel to Israel are booked a hotel in Tel Aviv Israel where my wife would celebrate our wedding ceremony.

    I attach copy of my passport and copy of the hotel are booked for our wedding ceremony. Therefore I humbly ask your office in order to accept the case of my wife and enable her to travel to Australia, celebrating our wedding ceremony and live with me permanently”.

12. The Tribunal notes that the review applicant has provided no further information to the Tribunal regarding his relationship with the visa applicant.  The Tribunal finds that apart from the assertions of the parties in the visa application and the sponsorship form, they have provided no evidence to support their assertions that they met in Khartoum, Sudan in April 2005.  Accordingly, the Tribunal is not satisfied that at the time of application, the parties have met in person since each of them turned 18.

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

    DECISION

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

    Amanda Mendes Da Costa
    Member