Bayram (Migration)

[2024] AATA 2818

Bayram (Migration) [2024] AATA 2818 (15 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Salih Bayram

VISA APPLICANT:  Ms Xiangui Cheng

REPRESENTATIVE:  Ms Yi Zhang (MARN: 1463250)

CASE NUMBER:  2409797

HOME AFFAIRS REFERENCE(S):          BCC2021/2484319

MEMBER:Cheryl Cartwright

DATE:15 July 2024

PLACE OF DECISION:  Melbourne

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 300.216 of Schedule 2 to the Regulations

Statement made on 15 July 2024 at 12:04pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuinely intended to marry – genuine spousal relationship – shared responsibility for household and finances – social recognition of the relationship – regular translated communication – marriage celebrant booking – decision under review remitted     

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 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 22 December 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. Relevantly to this matter the primary criteria include that the Minister is satisfied that the parties genuinely intend to live together as spouses.

3. The delegate refused to grant the visa on 23 April 2024 on the basis that the visa applicant did not satisfy cl 300.216 of Schedule 2 to the Regulations because there was insufficient evidence to demonstrate that the parties genuinely intended to live together as a couple in a genuine spousal relationship.

4. The review applicant appeared before the Tribunal on 12 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Xiangui Cheng who appeared via video. The Tribunal hearing was conducted with the assistance of interpreters in the Turkish, Mandarin and English languages.

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl 300.216 of Schedule 2 to the Regulations which provides that:

   The Minister is satisfied that the parties genuinely intend to live together as spouses.

8. The Minister’s delegate found that there was insufficient evidence provided to demonstrate that the parties genuinely intend to live together as spouses.

   Do the parties genuinely intend to live together?

9. 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.

10. 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.

11. With regard to reg 1.15A(3)(a), in evidence to the Tribunal the visa applicant told the hearing that the review applicant sometimes sends her money and also sends gifts. She stated that she was concerned about him sending money because he is living on an aged pension. She stated that she sometimes sends money to him, but more often sends gifts and items to aid his health regime, such as warm clothes and blankets because he is frugal and won’t buy these items for himself. The review applicant told the hearing that his birthday gifts from the visa applicant ‘are still coming’. The visa applicant told the hearing that, when she was living with the review applicant through the COVID lockdowns, he had taken responsibility for all purchases as she was unable to work. The Tribunal gives great weight to this evidence and is satisfied that the parties plan to share responsibility for finances.

12. With regard to reg 1.15A(3)(b), in written submissions to the Tribunal and in evidence to the hearing the parties stated that they had met in late 2019 and had lived together for a year from April 2020 until April 2021 when the visa applicant returned to China to help prepare for and attend her daughter’s wedding.

13. The Tribunal notes that the visa applicant had been unable to return to Australia because she had applied for a protection visa (subclass 866) which was refused on 15 September 2020. She had then applied to the Tribunal for review of this decision but, before a hearing was arranged, she had left the country to return to China. The Tribunal affirmed the Department’s decision on 19 October 2021. In an undated statement provided at the time of application, the visa applicant states that, having applied for a protection visa which was rejected and having left Australia before the review of that decision had been completed by the Tribunal, she had been unable to obtain a visitor visa in order to be with the review applicant. She told the hearing that she had been ‘taken in by an agent’ from whom she had sought advice about being able to stay in Australia legally.

14. The parties told the hearing that, during the year they lived together, they shared household chores although the visa applicant did most of the housework. The visa applicant would make breakfast. The review applicant stated that the visa applicant is a good cook, particularly her dumplings. The visa applicant told the hearing that the review applicant is also a good cook. There is no evidence the parties have children together. The Tribunal gives some weight to the evidence provided in regard to reg 1.15A(3)(b).

15. With regard to reg 1.15A(3)(c), the Tribunal notes statements provided by friends and relatives of the parties.

16. In a statement dated 29 April 2024 and translated from Mandarin, the visa applicant’s daughter Jiaxin Fan states that when her mother was living with the review applicant in Australia they often held video chats demonstrating their life together, sometimes from the supermarket while shopping for groceries and demonstrating the types of ingredients found in Australia.

17. In a statement dated 22 May 2024 a friend of the review applicant Robert Joseph Seamons states that he and his wife often visited the home of the review applicant when the visa applicant was living there and now that she has returned to China he sometimes participates in the parties’ video chats. He states that the visa applicant is a close friend of his wife.

18. In a statement dated 22 May 2024 a friend of the parties and wife of Mr Seamons, Liying Fan, states that the parties attended her wedding and she is in touch with them often. She states that she has known the visa applicant since she was 17 years old and they often speak on video calls.

19. The Tribunal has also noted statements provided at the time of application from Vera Mitrovic, Adam Luckman, Cengiz Gecgun, Kemal Almran Ercika and Admir Behadric who all state that they have socialised with the parties while they were living as a couple.

20. The visa applicant told the hearing that the review applicant is very good at cooking meat for barbecues the parties held for their friends. She also stated that they would also often go out for a meal, usually pizza.

21. The Tribunal notes the statements by friends and family of the parties and the evidence provided to the hearing by the visa applicant, gives some weight to this evidence and is satisfied that the parties represented themselves and socialised as a genuine couple when the applicant lived in Australia. The Tribunal is satisfied that they have remained in regular contact since the applicant returned to China, and they would represent themselves and socialise as a genuine couple should the applicant return to Australia.

22. On the matter of reg 1.15A(3)(d), the Tribunal notes the regular communication between the parties, as shown by chat records and evidence provided to the hearing. The review applicant told the hearing that he would speak with the visa applicant every day ‘or twice a day’ because ‘if I don’t see the face I go crazy’. The visa applicant told the hearing that she would miss the review applicant if she didn’t see him for a day. Given the requirement for two interpreters – in Turkish and Mandarin – the Tribunal asked the parties how they would communicate with each other. The review applicant told the hearing that communication was sometimes difficult but ‘we manage’. The visa applicant told the hearing that the parties would communicate in English and when they had a problem understanding each other they would use language translation software. The review applicant showed the Tribunal the software the parties use.

23. The Tribunal notes evidence provided that the review applicant had booked a flight to travel to China in June 2023. In an undated statement received by the Tribunal on 3 July 2024, the parties’ representative states that the review applicant had made the booking so that he could marry the visa applicant in China; however, his doctor had told him that he was not well enough to travel.

24. The Tribunal also notes a statement dated 12 July 2024 and received after the hearing from Julia Zhang, a registered marriage celebrant. Ms Zhang states that the parties have made a booking with her to undertake a marriage ceremony on 12 October 2024, should the visa applicant be able to return to Australia.

25. The visa applicant told the hearing that she wanted to take care of the review applicant in light of his health problems. She stated that, even if they only had a few years together, it was ‘better than the current situation’. She stated that if she returned to Australia she would find work as a masseuse or a cleaner.

26. The Tribunal notes that the parties began living together in 2020 and have remained in regular contact since the applicant returned to China. The Tribunal is satisfied that they provide emotional support to each other and that they see the relationship as long term.

27. On the basis of the above, the Tribunal is satisfied that, at the time of application, the parties genuinely intended to live together as spouses, and therefore cl 300.216 is met.

28. 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

29. 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 300.216 of Schedule 2 to the Regulations

    Cheryl Cartwright
    Member