Barwick (Migration)

[2023] AATA 247

Barwick (Migration) [2023] AATA 247 (6 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Clive James Barwick

VISA APPLICANTS:  Ms Marina Jesus Galindo Arriola
Miss Shakira Kiara Palomino Galindo
Mr Luis Enrique Palomino Galindo

CASE NUMBER:  2214620

HOME AFFAIRS REFERENCE(S):               BCC2019/6577998

MEMBER:Meena Sripathy

DATE:6 February 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 first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl 300.211 of Schedule 2 to the Regulations;

·cl 300.214 of Schedule 2 to the Regulations;

·cl 300.215 of Schedule 2 to the Regulations;

·cl 300.216 of Schedule 2 to the Regulations; and

·cl 300.221 of Schedule 2 to the Regulations.

The second and third named visa applicants meet the following criteria:

· cl 300.311 of Schedule 2 to the Regulations.

Statement made on 06 February 2023 at 2:53pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry and live together as spouses – met through dating site soon after death of sponsor’s wife – notice of intention to marry within visa period provided – knowledge of each other’s circumstances and regular communication and financial transfers – perseverance with application despite delays – previous refusal and remittal on different ground – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 15A(3), Schedule 2, cls 300.211, 300.214, 300.215, 300.216, 300.221, 300.311

statement of decision and reasons

application for review

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 10 December 2019. 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. Relevantly to this matter the primary criteria include cl.300.211, cl.300.215 and cl.300.216 and continue to meet these criteria at time of decision: cl.300.221.

3. The delegate refused to grant the visas on 10 August 2022 on the basis that the first named visa applicant did not satisfy cl 300.211 of Schedule 2 to the Regulations because the delegate was not satisfied on the evidence provided that the visa applicant and sponsor genuinely intended to marry and live together as spouses.

4. The review applicant appeared before the Tribunal on 2 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone and Ms Glendy Anthonet La Torre Galindo, the visa applicant’s daughter, in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The issue in the present case is whether the visa applicant and sponsor (review applicant) genuinely in tend to marry and live together as spouses.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The primary visa applicant is a 57 year old woman born, and residing in, Lima, Peru. She has two children, aged 19 and 21 who are included as secondary applicants, a daughter who resides in Australia and two sons and two daughters who reside in Peru.  She is sponsored by Clive James Barwick, the review applicant, who is 59 years old, and an Australian permanent resident. The parties claim to have met in October 2018 at Jordan Springs at the home of the primary visa applicant’s daughter, committed to a relationship in December 2018 and got engaged in September 2019. The primary visa applicant declared a previous relationship with Luis Enrique Palomino Mandujano from 2001 to December 2013, which ended when she left him. There were two children from this relationship.  The sponsor/review applicant declared one previous relationship, to Kathleen Barwick, from 1988 until January 2018, which ended because she passed away. There were four children of this relationship.

8. The primary visa applicant travelled to Australia on 20 September 2018 until 5 September 2019 on a visitor visa. 

9. Documents submitted to the Department in support of the application included two Form 888 Statutory Declarations from the primary visa applicant’s daughter in Australia and the sponsor’s son; several photos of the couple together, and with friends/family; some screenshots of chats on social media; and a Notice of Intended Marriage.

10. The application was previously refused by the Department on 3 November 2021 on the basis that the delegate was not satisfied that cl.300.221A was met. This was because the delegate had observed the primary visa applicant had declared in her Form 80, that she had 7 children, who appeared to have different family names, yet she had only declared one previous de facto relationship in her application. A request for a single status certificate was issued, to satisfy the requirement that there be no impediment to marriage in Australia.  No response was received, leading to the application being refused.  The review applicant sought review of the decision to the AAT, providing the requested document (evidencing no record of marriage) and on 22 December 2022 the matter was remitted by the Tribunal (differently constituted) with a direction that cl.300.221A was met.

11. On 23 February 2022 the Department sent the applicant a request for updated evidence of the relationship and a new notice of intention to marry.  No further evidence was provided and on 10 August 2022 the application was refused again. This time the delegate was not satisfied, on the available information, that the visa applicant and sponsor genuinely intended to marry and live together as spouses.

    Evidence before the Tribunal

12. As the application was before the Tribunal for a second time, it was granted priority processing.  On 19 December the Tribunal invited the review applicant to provide further and current information and evidence relating to the relationship with the primary visa applicant and addressing the criteria of whether they genuinely intent to marry and live together as spouses. The information was requested to be provided by 23 January 2023, and the matter was listed for a hearing on 2 February.

13. On 13 January 2023 the Tribunal received, from the review applicant’s representative (the primary visa applicant’s Australian resident daughter) the following:

    ·137 pages of internet text messages purportedly between the review applicant and primary visa applicant from 4 August 2020 to 9 October 2022.  It is explained that the communication was through Whatsapp which translates the communication between them

    ·Financial transfers from Glendy La Torre Galindo to the primary visa applicant on 4 September 2020 (AUD$179.39), 7 October 2020 (AUD$552), 6 February 2021 (AUD$270), 9 June 2021 (AUD$200), 4 September 2021 (AUD$232.95), 24 December 2022 (AUD$152.13). It is explained that the review applicant sent money gifts to the primary visa applicant and these are the receipts.

14. On 25 January 2023 the Tribunal received from the review applicant’s representative (the primary visa applicant’s Australian resident daughter) a collection of photos of the visa and review applicant and family members, and evidence that the review applicant is the carer for his mother, to support the reason he was unable to leave the country to visit the visa applicant.

    Evidence at hearing

15. The review applicant provided evidence about his current living arrangements, work and family composition. He lives in a property he owns in Wellington, NSW with his 93 year old mother and brother.  He has lived at this address for the past 10 years and with his mother for the last 20 years. He works as a postman for the last 3 years, previously he worked at a rural produce store.  Apart from his mother and brother, he has four adult children aged between 27 and 34 years. His three eldest children live in Queensland and northern NSW and are all partnered with children. His youngest son, Michael lives in Wellington.  The visa applicant has met all his relatives in Wellington but not his three elder children or their families. He was previously married to Kathleen for over 30 years. She is the mother of his four children. She died on 1.1.2018 by suicide, following a lengthy period of illness.  She was a nurse.

16. The Tribunal asked the review applicant about his knowledge of the visa applicant’s circumstances. She knew that she lived in Oxapampa Peru.  She has a block of land on which she built a house. She farms the land. She lives with her two youngest children who are included in the application and another daughter, her husband and children. In total the visa applicant has seven children. The review applicant was familiar with them by name and knew roughly where they lived. He knew about the visa applicant’s current work and work circumstances.

17. They met through e Harmony in early 2019 or 2018, he cannot recall exactly as it is several years back now. They chatted online initially and then he came to Sydney to meet her at her daughter’s place. She was the first person he had met on this site. He was lonely as he always had a wife, and his son suggested he try the dating service. After their initial meeting he and the visa applicant got on well. She came to see him in Wellington.  The first time her daughter brought her and after that she travelled to his place by train. There was a language barrier between them but they managed to communicate.  She was very resourceful. She never wastes anything.

18. The Tribunal asked what he knew of her background and past relationships. She came to visit her daughter here after the daughter had her first child. She had three previous relationships which all ended as a result of abuse, alcoholism or affairs. As far as he knows she is not in contact with her last partner, other than in relation to the children.

19. The visa applicant stayed with him on and off through the year she was here. She met his mother, brother and son.  She met a few of his friends. When asked why they decided to marry, he said he had not initially planned it but they hit if off and he decided he wanted to be with her.  She wanted to marry because none of her previous partners had married her.

20. They could have married in Australia but they wanted to do it the right way. So she returned to Peru and they lodged the application soon after, and included her younger children.  They never thought it would take so long. They could not visit each other since then because of COVID lockdowns. All of his children know about the relationship and support it, although only one son, Michael has met her in person.  His other son, Mathew,  was initially a bit hesitant, asking why he would bother.

21. Asked about the visa applicant’s younger children, he said he has them on his WhatsApp also and sometimes communicates with them.  They are both doing post secondary study. He discussed with the visa applicant about them coming to live here. The plan is for them to live together at his home.  He has already bought furniture for the children and set up their rooms. He has a big home and plenty of room for all of them.

22. Regarding financial arrangements, the review applicant said he gave her some money when she was in Australia just to tide her over.  Since she has returned to Peru he has sent money to her on about 10 occasions. She has never asked for it but he sends it to help her out.  He sends money by depositing it in her daughter’s account and she makes the transfer because she knows how to do it cheaper. The Tribunal requested he provide evidence of his transfers to Glendy. The review applicant said they have never argued about money matters.  Later when questioned about an exchange in his text communications, he agreed they did have a discussion about whether she considered him a ‘sugar daddy’.  She didn’t understand the term and he did not eventually explain it to her.  He said they have generally discussed that she will work when she comes here. He said she has always worked and that is what she expected to do.  He said he also discussed with her that he would ask for a pre-nuptial agreement and she was fine about this.   

23. When asked why she would want to leave Peru and all her family he said she does not have much for her there. When she was here she fell in love with this place and with him, or so she told him.

24. He has discussed with her that he would visit her there if this is not resolved soon. He has been saving money and his brother supports him going. The only issue is his elderly mother and her care needs and his brother also has cancer now and needs care.

    Evidence from visa applicant

25. The visa applicant told the Tribunal she lives with three of her children, her son in law and grandchild in a house purchased by her ex partner for his two children. She was with him since around 21 years ago. They separated about 9 years ago and she does not see him now other than relating to the children.  She confirmed her relationship history and reasons why those relationships ended. She knew that the review applicant was married and his wife died. He showed her the tree she died looking at.  He was very sad when he told her about this. The visa applicant confirmed that she met his mother, brother and son in Australia but not his other children who live elsewhere.

26. They met each other at her daughter’s house, after her children helped her make an application the internet.  He came to meet her and they just clicked. They spent time together and then she went to Wellington and spent time with him there.

27. Regarding financial arrangements she said he gave her some financial support when she was in Australia and he has sent her some money when she returned. She never asked him to send money but he just does. They discussed when she comes she will work and they will share expenses. She knew that he has a house but she will have no right to it because it is in his former wife’s name and others have rights to it.

28. When she arrives she understands they will marry and she and her children will live in Wellington with him.  He has already bought beds and furniture for her children.

29. The visa applicant confirmed her two youngest children live with her, are studying at university and are single.

30. She and the review applicant communicate regularly via the internet and talk about many topics, including their memories of her time in Australia and how they miss each other. She loves him and hopes to see him soon. 

31. When asked whose idea it was to seek a partner in Australia she said it was hers. Her hope was to finally meet someone who respected women.

    Evidence from visa applicant’s daughter, Glendy La Torre Galindo

32. The witness confirmed that she first met the review applicant when he came to meet her mother at her house, following a match on e Harmony. She had never met him before. She sponsored her mother to visit Australia after her first child was born.  This was her first visit. The witness said she suggested to her mother why not try and meet someone who is good to her after her history of partners who were not good to her. When the visa applicant saw the review applicant’s profile the visa applicant told her daughter (the witness) she liked it and also liked where he was living, being a farmer herself and liking a country town.

33. After they met in Sydney, the witness took her to Wellington with her family and they all met.  The visa applicant would then regularly stay between her place and the review applicant.

34. The witness was aware that they communicated by WhatsApp using the translation function. Often her mother or the review applicant would ask for her help about saying something. She transfers money to the visa applicant from the review applicant. When asked why he did this through her, she said she has a cheaper way of doing it and it was easy for him.

35. When asked why she believes it is a genuine relationship the witness said she can see they are in love with each other and this is demonstrated by the fact that they have waited for each other for so long and still want to get married.

36. The Tribunal put to the witness that it may have a concern that she has an interest in her mother and siblings coming here. In response the witness stated that in fact she was brought up by her grandparents not her mother.  She lived in Australia for over 15 years without her mother.  Their lives are separate.  She just wanted her mother to be happy. 

37. The Tribunal put to the review applicant its concern about the relatively short period between the death of his wife and the commencement of this relationship.  In response the review applicant said he had not realised it was so close to her death. He said he was not originally looking for a relationship, but when he met the visa applicant it just happened. 

38. On 3 February 2023 the Tribunal received copies of the review applicant’s letters to the Minister regarding his case and response received; documents relating to the review applicant’s mother and his status as her carer, including a letter from the review applicant’s mother’s GP, Medicare and a Statutory Declaration by him; screen shots from Glendy La Torre Galindo to the review applicant of communications between them about transfers of funds to the visa applicant; review applicant’s bank statements showing transfers of money to Glendy La Torre for the visa applicant in 2020-2022. 

    FINDINGS AND REASONS

39. 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. 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?

40. 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. On the information before it from Department records the Tribunal is satisfied the review applicant, who is the sponsor, is an Australian permanent resident.  Accordingly, the requirements of cl 300.211 are met.

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

41. 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 accepts the review applicant and visa applicant met in person in 2018 when the visa applicant was in Australia. This finding is support by the evidence of their oral testimony and that of the witness, as well as  Statutory Declarations from their respective son and daughter and photos. Therefore, at the time of application, the requirements of cl 300.214 were met.

    Do the parties genuinely intend to marry?

1. 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. The parties lodged this application in December 2019 soon after the visa applicant returned to Peru from Australia. On the evidence they provided the sponsor had proposed marriage to the visa applicant prior to her departure and they applied for the visa for her to return to Australia and marry. At the time of application the Tribunal accepts the parties had a genuine intention to marry and satisfy the requirements of cl 300.215(a). Since that time, they have provided a further NOIM upon request by the Department, although that proposed date of 30 July 2022 has now also passed. The Tribunal observes the NOIM is valid for 18 months from the date it was signed and accordingly the date for the marriage is within the visa period as required by cl 300.215(b). Therefore, the requirements of cl 300.215 are met.

   Do the parties genuinely intend to live together?

2. 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.

3. 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.

4. The Tribunal took oral evidence from the review and visa applicants at a hearing.  It is satisfied on this evidence that the parties met through an internet dating site and subsequently met in person and developed a relationship while she was in Australia.  In this period the visa applicant met close members of the review applicant’ family, stayed with him for periods at his home, and was introduced to and met some of his close friends. The review applicant also met and socialised with the visa applicant’s daughter and her family. The Tribunal accepts the review applicant proposed marriage to the visa applicant before she left Australia.  The Tribunal also took oral evidence from the visa applicant’s daughter and her evidence about the time they spent together in Australia was broadly consistent.  She indicated her support of the relationship and observations of the couple.  She told the Tribunal she believes their relationship is genuine and that her opinion was based on her  observations of them together and the contact they have had since her mother’s departure.

5. The Tribunal accepts on the oral and documentary evidence submitted that the visa and review applicant maintained regular communication after her departure from Australia in 2019. They demonstrated knowledge of each other’s living circumstances and the substantial evidence provided of their communications show that they share details of their lives and draw on each other for companionship and support. The Tribunal is satisfied that the review applicant has regularly sent her financial transfers through her daughter.  Evidence to support the source of the funds from his bank account to the visa applicant’s daughter’s account and the receipts for the transfers made support this. 

6. At hearing they gave consistent evidence about discussions they have had about future financial arrangements between them should the visa applicant come to Australia. The Tribunal is satisfied they have discussed plans to live together in Wellington at the review applicant’s home.  He gave evidence that he has purchased furniture and set up bedrooms for the children and has sufficient space for all of them to live together. 

7. The Tribunal initially had some concerns that the presence in Australia of the visa applicant’s daughter may have been the motivating factor for the relationship and whether she would in fact live with the review applicant.  However having put these concerns to the parties and the witnesses at the hearing, it is satisfied with their responses and the history of the relationship, and in particular the perseverance with the application despite the time it has taken to date. Having considered all of the evidence now before it, the Tribunal’s early concerns are sufficiently diminished.

8. On the basis of the above the Tribunal is satisfied the parties genuinely intended to live together as spouses, and therefore cl 300.216 is met at the time of the visa application.  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. On the basis of the evidence and reasoning discussed above, the Tribunal is satisfied at the time of decision the parties continue to genuinely intend to marry and live together as spouses.  Accordingly, cl 300.221 is met.

   Secondary visa applicants

9. At time of application the secondary criteria requires that the applicant is a member of the family unit of, and made a combined application with, a person who satisfied the primary criteria in clauses 300.211 to 300.212 and 300.214 to 300.216: cl.300.311. 

10. The second and third named visa applicants were 17 years and 15 years respectively at the time of application.  The Tribunal accepts that they are the daughter and son of the primary visa applicant respectively. Therefore, they were the dependent children of the primary visa applicant and members of her family unit and on that basis they meet cl.300.311.

11. 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

12. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl 300.211 of Schedule 2 to the Regulations;

    ·cl 300.214 of Schedule 2 to the Regulations;

    ·cl 300.215 of Schedule 2 to the Regulations;

    ·cl 300.216 of Schedule 2 to the Regulations; and

    ·cl 300.221 of Schedule 2 to the Regulations.

    The second and third named visa applicants meet the following criteria:

    · cl 300.311 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member