Botrous (Migration)

[2018] AATA 1490

Botrous (Migration) [2018] AATA 1490 (26 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Nagwa BOTROUS

VISA APPLICANT:  Mr Peter Aiyad Gendy AWAD

CASE NUMBER:  1614735

DIBP REFERENCE(S):  OSF2016/030349

MEMBER:Shane Lucas

DATE:26 March 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 26 March 2018 at 1:34pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Whether the parties genuinely intend to marry – Steps undertaken to marry – Whether the parties genuinely intend to live together as spouses – Limited evidence of shared finances – Limited evidence of household responsibilities – Lack of emotional support – Witness credibility - Inconsistencies in evidence

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15A, Schedule 2, cls 300.216, 300.221

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 is a 27 year old Egyptian national born on 15 January 1991. He applied for the visa on 19 May 2016. 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. Relevant to this matter, the primary criteria include cls.300.211, 300.215, 300.216 and 300.221.

3. The delegate refused to grant the visa on 4 September 2016 on the basis that the visa applicant did not satisfy cl.300.216 and therefore cl.300.221 of Schedule 2 to the Regulations because “the applicant and the sponsor do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between the parties is not genuine.”

4. The review applicant appeared before the Tribunal on 8 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from two witnesses, being the daughter of the review applicant and the son-in-law of the review applicant, who also claims to be a friend of the visa applicant.

5. The applicant was not represented in relation to the review by a registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issues in the present case are whether at the time of application the visa applicant intended to marry an eligible person for the purposes of the Act (cl.300.211); whether at the time of application, the parties genuinely intend to marry and that the marriage is intended by the parties to take place within the visa period (cl.300.215(a) and (b)); whether at the time of application, the parties genuinely intend to live together as spouses (cl.300.216); and whether at the time of decision, the visa applicant continues to satisfy the criteria (cl.300.221).

   Does the visa applicant intend to marry an eligible person?

8. 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. In the present case, the visa applicant claims to intend to marry the review applicant. The parties provided documentation attesting that the review applicant (born in Egypt on 31 July 1975) became an Australian citizen on 28 July 2005. Accordingly, the requirements of cl.300.211 are met.

   Other relevant criteria

9. The Tribunal is satisfied that cls.300.212, 300.212A, 300.213 and 300.214 are met.

   Do the parties genuinely intend to marry?

10. Clause 300.215(a) and (b) 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 applicants have provided photographic evidence and given oral evidence attesting to the holding of an engagement ceremony in Egypt on 8 October 2016. The applicants have also supplied documentation from the Victorian Registry of Births, Deaths and Marriages (dated 9 May 2016) confirming that the parties made arrangements for a marriage to take place on 3 April 2017. In oral evidence, both the review applicant and a witness (being the review applicant’s daughter) advised the Tribunal that a booking had been made to hold the marriage ceremony at the Registry on that day; however, as the visa application was unsuccessful, the visa applicant remained in Egypt at that time and the ceremony did not proceed. The review applicant’s daughter also gave evidence that she is responsible for arranging the ceremony for the parties and that she intends to book a ceremony on a new date should the visa application be successful.

11. Upon consideration of the evidence, the Tribunal is satisfied that the parties genuinely intend to marry and that the marriage is intended to take place within the visa period. Accordingly, the Tribunal is satisfied that the requirements of cl.300.215(a) and (b) are met.

    Do the parties genuinely intend to live together as spouses?

12. 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.

13. The applicants provided documentation and gave oral evidence to the Tribunal relating to the considerations for spousal relationships. Having regard to these considerations and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings:

    Financial aspects of the relationship

14. In a written statement and in oral evidence provided to the Tribunal, the review applicant advised that the couple have not pooled their financial resources, but stated that when she and the visa applicant are married, the financial aspect of their relationship will be “50/50”. In oral evidence, the visa applicant confirmed that the couple do not share finances, but noted that they did each contribute to the costs of restaurant and hotel bills during the review applicant’s 19-day visit to Egypt in 2016.

15. Accordingly, the Tribunal found no evidence that the parties have pooled their financial resources to any extent or in relation to major financial commitments. Moreover, the Tribunal found no evidence that the parties have acquired joint ownership of real estate or other major assets; and no evidence that the parties have any joint liabilities or that one person in the relationship owes any legal obligation in respect of the other.

16. The Tribunal is satisfied that the couple shared the costs of some day-to-day household expenses in their brief time together in Egypt. However, there is no evidence to demonstrate any sharing of expenses or contributions to each other’s financial circumstances beyond October 2016 such as would demonstrate the parties’ genuine intention to live together as spouses.

17. The Tribunal acknowledges that the parties have a stated intention to pool their financial resources should the visa applicant be successful in his application to come to Australia. Given this stated intention and given the constraints of residing in separate countries, the Tribunal gives the financial aspects of the relationship little weight in determining the couple’s genuine intention to live together as spouses.

    Nature of the household

18. The Tribunal received oral evidence from the parties stating that the couple have spent only a few weeks together at the time of the review applicant’s visit to Egypt in September-October 2016. At this time, the review applicant claimed that she lived for a week with her family; spent some time with the visa applicant at a hotel; and that the couple spent one day together in Alexandria. In response to questions from the Tribunal, both the review applicant and the visa applicant were unable to recall the name of the hotel at which they supposedly stayed, and no documentation was provided (i.e. accommodation receipts) to support this claim, raising concerns as to the veracity of the parties’ account of their time together.

19. Upon consideration of the evidence, the Tribunal therefore no evidence attesting to the living arrangements of the couple during the review applicant’s visit to Egypt in 2016. Moreover, the Tribunal found no evidence of any sharing of responsibility for housework or any joint responsibility for the care and support of children. While a range of photographs were supplied to the Tribunal purporting to detail the couple’s time together, the majority of these are casual photographs taken at the time of the couple’s engagement party on 8 October 2016 and/or are casual photographs taken at a restaurant, in a street, and at the airport. The photographs supplied to the Tribunal do not provide any evidence of the couple’s living arrangements during this period or at any other time.

20. The Tribunal accepts that the review applicant spent some time with the visa applicant in September-October 2016 and acknowledges that it would be difficult for the parties to establish a household given they live in separate countries. The Tribunal also notes the review applicant’s oral evidence that the parties would seek to rent a larger home in Australia to accommodate her children, herself and the visa applicant should the latter be successful in his visa application. Accordingly, the Tribunal accords little weight to these criteria in determining the couple’s genuine intention to live together as spouses.

    Social aspects of the relationship

21. The witnesses gave oral evidence and provided written statements to the Tribunal attesting to the genuine and continuing nature of the relationship between the review applicant and the visa applicant. The Tribunal also considered a statutory declaration made by another adult daughter of the review applicant attesting to the genuine and continuing nature of the relationship. The parties also provided oral and photographic evidence attesting to some social activities undertaken during the review applicant’s visit to Egypt in 2016, specifically with members of the visa applicant’s family.

22. At hearing, the review applicant gave inconsistent evidence relating to the social activities of the parties during their time together in 2016. At one point, she advised that that the couple had gone out to restaurants and to movies; at another point, she advised that they had not gone out with the visa applicant’s friends in Egypt as it is “unpleasant for a woman to go out”. Prior to the conclusion of the hearing, the review applicant sought to clarify her evidence regarding her contact with the visa applicant’s social circle in Egypt, indicating that she had met members of his family, but that she could not always distinguish between his relatives and his friends. The photographic evidence provided includes photographs purporting to show the review applicant with the visa applicant and with members of his family at the engagement party held on 8 October 2016 at the visa applicant’s family home; and photographs of the couple together at a restaurant, in a street, and at the airport.

23. In considering the oral evidence and statutory declarations provided by the review applicant’s adult daughters, the Tribunal found the evidence given to be general, non-specific and repetitive in nature and not indicative of a relationship between the parties such as might demonstrate their genuine intention to live together as spouses. The oral evidence provided by the applicant’s son-in-law was similarly non-specific and general in nature and not indicative of a relationship between the parties such as might demonstrate their genuine intention to live together as spouses.

24. As stated above, the applicants provided photographs purporting to be of their engagement party in October 2016 and other casual photographs of the couple together and/or in the company of others at a restaurant, in a street, and at the airport. The photographs include one in which the review applicant is cutting a cake and another in which the visa applicant is placing a ring upon the review applicant’s finger. The photographs supplied do not provide any substantive evidence of the social aspects of the relationship, other than they suggest the review applicant met members of the visa applicant’s family on at least one occasion and that some form of engagement celebration was held at this time.

25. Upon considering the evidence described above, the Tribunal is not satisfied that the couple represent themselves to other people as genuinely intending to live together as spouses. The Tribunal is also not satisfied that the evidence provides a substantive indication of the opinion held by the parties’ friends, family members or acquaintances as to the nature of the relationship or the couple’s genuine intention to live together as spouses. Furthermore, the Tribunal found limited evidence that the couple undertake and plan joint social activities, over and above the engagement ceremony conducted in October 2016, such as would indicate that they have a genuine intention to live together as spouses.

    Nature of the person’s commitment to each other

26. The couple claim to have known of each other prior to meeting as the visa applicant’s family are neighbours of the review applicant’s sister in Aswan, Egypt. The parties claim to have met in person in December 2013 at the time the review applicant travelled to Egypt to attend her daughter’s wedding. They subsequently communicated by telephone and Messenger after the review applicant’s return to Australia in February 2014, and agreed to become engaged to be married in November 2014. In September 2016, the review applicant returned to Egypt and the couple held an engagement party at the visa applicant’s home on 8 October 2016.

27. As stated above, the Tribunal was provided with photographs purported to have been taken at the engagement party and/or in other settings during the review applicant’s brief time in Egypt in 2016. The review applicant has not subsequently returned to Egypt, but the parties claim to be in regular communication principally via Facebook and Messenger through which they talk about their lives and activities. The Tribunal received documentation purporting to detail the couple’s Messenger exchanges between September 2017 and February 2018. It is noted however that a majority of these purported exchanges are listed as “missed calls”.

28. In oral evidence, the review applicant stated that she had not returned to Egypt since October 2016 due to her concerns about the problematic behaviours of her 15 year old son. The review applicant stated that her son has had difficulties at school and is receiving counselling. In oral evidence, the visa applicant demonstrated no knowledge of the review applicant’s concern for her son’s welfare, but rather believed she had not returned to Egypt due to psychological problems being experienced by the review applicant’s daughter (i.e. the witness). The visa applicant also claimed the review applicant had not been able to travel because she was “busy preparing for the case” (i.e. the review of his visa application). In oral evidence, the review applicant’s daughter stated that her younger brother has drug-related problems and that the review applicant does not like to discuss these issues with people outside the family, including the visa applicant.

29. Upon considering the evidence detailed above, the Tribunal accepts that the couple have known each other for at least four years since first meeting in Egypt in December 2013. The Tribunal also accepts that the parties spent time together in September-October 2016, and that the couple maintain some contact via Facebook and Messenger. The Tribunal is not satisfied however that the nature of the couple’s in-person contacts or the online contact between the parties demonstrate the degree of companionship and emotional support that the persons draw from each other. In considering the nature of the parties’ commitment to each other, the Tribunal puts significant weight on the visa applicant’s lack of awareness about the issues being experienced by the review applicant’s teenage son. Given the statements of both the review applicant and her daughter that these matters are of serious concern to the family, it would seem appropriate that the visa applicant would be aware of them and be a source of emotional support to the review applicant where that the nature of the relationship between the persons. The Tribunal is therefore not satisfied as to the degree of companionship or emotional support the couple draw from each other such as would demonstrate their genuine intention to live together as spouses.  

30. The Tribunal is not satisfied that the couple have lived together for any significant length of time, excepting a few days during the short visit the review applicant made to Egypt in 2016. The Tribunal also notes that the couple have not seen each other again in person since that time. The Tribunal is therefore not satisfied that the duration of the couple’s relationship or the length of time they have lived together provides an indication of their genuine intention to live together as spouses.

31. In response to questions by the Tribunal, the parties made statements regarding their commitment to each other and their view of their relationship into the future. The Tribunal found these statements to be general and non-specific. On the evidence before it, the Tribunal is therefore not satisfied that the couple view their relationship as a long term one such as would demonstrate their genuine intention to live together as spouses.  

32. 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.

    Do the parties continue to meet time of application requirements?

33. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cls.300.211, 300.214, 300.215 and 300.216. As detailed above, the Tribunal is not satisfied that cl.300.216 is met; accordingly, cl.300.221 is not met.

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

    DECISION

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

    Shane Lucas
    Member