Company (Migration)

[2023] AATA 3829

Company (Migration) [2023] AATA 3829 (8 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Maria Company

VISA APPLICANT:  Mr Fakhar Hassan

CASE NUMBER:  2015285

HOME AFFAIRS REFERENCE(S):          BCC2019/5722049

MEMBER:Stephen Conwell

DATE:8 November 2023

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 08 November 2023 at 6:30pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – financial aspects – nature of the household – no meaningful discussions about their future living arrangements – social aspects – nature of the commitment – significant age difference – religious difference – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.211, 300.214, 300.215, 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 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 12 November 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 includes cl.300.216, which requires the Minister to be satisfied that the visa applicant and review applicant (the parties) genuinely intend to live together as spouses.

3. The delegate refused to grant the visa on 10 September 2020 on the basis that the visa applicant (the applicant) did not satisfy cl.300. 216 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant genuinely intended to live together with the sponsor in a spousal relationship.

4. The review applicant (the sponsor) appeared before the Tribunal on 3 November 2023 to give evidence and present arguments. The applicant appeared by video from Pakistan. The  Tribunal also received oral evidence from witnesses, Ms Susan Kopp (the sponsor’s adult daughter) and Ms Karen Hassan (no relation to the applicant) who both attended in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

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

   Background

6. The applicant is 39 year old Pakistani national. He lives with his parents and two sisters in the family home in Pakistan.

7. The sponsor is 67 year old woman, who was born in Spain. She has been previously married and divorced three times. She is an Australian citizen.

8. It is claimed in the visa application that the applicant first met the sponsor online in July 2017. The applicant is said to have proposed on 15 November 2017 and the parties committed to a shared life together by engaging in an Islamic committal ceremony (‘Nikka”).

9. The parties met in person for the first time when the sponsor travelled to Malaysia in May 2018 to meet the applicant as he was enrolled in University studies there at that time. The sponsor stayed in Malaysia for 28 days. During that time the parties committed to a shared life together by engaging in an Islamic committal ceremony (‘Nikka”). The parties claim that they spent most of that time together as a couple.

10. The sponsor  again travelled to Malaysia in July 2019 to see the applicant as he was completing his University studies there. The sponsor again stayed in Malaysia for 28 days, with the parties claiming again that they spent most of that time together as a couple.

11. The sponsor has an adult daughter and four grandchildren. She previously received a disability pension but recently she was transferred to an age pension.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the sponsor and applicant genuinely intend to marry and live together in a spouse relationship, both at the time of application and at the time of this decision.

13. The Tribunal has regard to the evidence in the Departmental and Tribunal files, including but not limited to, the decision record, the visa application, communication records and transcripts, identity documents, statutory declarations and other written statements of the parties and third parties and evidence of financial transmittals, principally from the applicant to the sponsor.

14. Clause 300.211 requires that at the time of application the applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal finds that the sponsor is an Australian citizen. Accordingly, the Tribunal finds that the applicant intends to marry the sponsor who is an Australian citizen and that the requirements of clause 300.211 are met.

15. Clause 300.214 requires that at the time of application the parties have met and are known to each other personally. The Tribunal accepts that the parties have met in person before the application was made - during the sponsor’s two visits to Malaysia. The Tribunal finds that at the time of application the parties had met and were known to each other personally. Accordingly, the Tribunal finds that the requirements of cl.300.214 are met.

16. 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. Clause 300.216 requires that at the time of application “the parties genuinely intend to live together as spouses.”

    Do the parties genuinely intend to live together?

17. 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).

18. 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.

19. The Tribunal has regard to the considerations for a spousal relationship and the degree to which these factors may be applied to determine a future intention.

    Financial aspects of the relationship

20. The Tribunal has considered the evidence both oral and documentary evidence regarding financial pooling as between the parties. The parties gave separate testimony at the hearing. Each party affirmed that the applicant has sent the sponsor regular transmittals of money in past years.  Both agreed that he has not done so in recent months as his income is limited due to his working in the family grocery business.

21. The Tribunal accepts that couples who reside in different countries may find it challenging to pool their financial resources together; it also acknowledges that the current financial circumstances  of the parties  make it difficult for them to enter into significant financial and/or legal arrangements before the visa is granted, particularly where the parties live in different countries and seeing as the sponsor has been receiving a disability, and now, an age pension. Consequently, the Tribunal is unconcerned by the parties’ lack of pooled financial resources or having any joint assets or liabilities.

    Nature of the household

22. Since their last in person meeting in Malaysia in 2019 (which the Tribunal accepts) the parties have not met in person. The Tribunal acknowledges that the global pandemic prohibited, then restricted international travel between 2020 and 2022. The sponsor stated that she would not travel to Pakistan to visit the applicant. Furthermore the applicant explained (in vague terms) that he was subject to travel ban of three years by the Department, which came about through his previous visa applications in 2016/17 to study in Australia.

23. The Tribunal accepts, on the evidence that has been provided, including statements, oral testimony and photographs, that the parties have holidayed and stayed together during the sponsor’s two visits to Malaysia, where the applicant was living and studying at the time.

24. In response to questioning, the applicant spoke in vague terms about the parties finding a house to rent once he arrives in Australia. He spoke of his hope that they would look to buy a house to live in. The sponsor spoke in more realistic terms, explaining that she would want to be close to her daughter and grandchildren and she is aware of her financial constraints given that her main source of income comes from Centrelink benefits. The sponsor described the applicant as smart and hardworking but in some respects quite naïve about the challenges that might arise for them should he be granted a visa and come to Australia.

25. The Tribunal is not satisfied that the parties have had meaningful discussions about their future living arrangements. The Tribunal is not satisfied that the parties demonstrate they have turned their minds to the arrangements with their families and the household or what their firm intentions are, other than that they claim that they will address these issues further should the applicant arrive in Australia.

    Social aspects of the relationship

26. The Tribunal has considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities. Again, there is a little evidence in respect of this factor.

27. There are several witness statements provided by the sponsor’s daughter, a close friend and her grandson. The applicant’s father and one of his sisters also submitted written statements in support of the relationship. All of these statements express the belief that the parties were in a genuine relationship. However all such written statements, including that of the parties themselves, are from 2019 and 2020. Nevertheless the Tribunal found the two witnesses to be credible and accepts it is their honest belief that the parties’ relationship is genuine.

28. Both parties had some knowledge about each other’s families; the Tribunal accepts that the parties have remained in regular, often daily, contact via telephone messaging and other social medial The Tribunal accepts that the sponsor’s family have  come to know and like the applicant through the parties’ regular phone and video contact. However whilst it accepts that the sponsor’s family are friendly and welcoming to the applicant, the Tribunal is unable to be satisfied from the evidence that the applicant and sponsor genuinely present themselves as a couple to a broad section of the community and that the relationship is recognised as leading to a genuine and continuing spousal relationship.

29. On balance, the Tribunal accepts that the parties’ families are aware of, and have in past years, been supportive of the relationship, however it is less certain of that wider community acknowledgement and support, particularly now at the time of the Tribunal’s decision.

    Nature of the persons’ commitment to each other

30. In assessing the nature of any commitment to each other, the Tribunal has considered the circumstances of how and when the parties met and the claimed development of the relationship.

31. The parties stated to the Tribunal that they provide each other with a degree of companionship and emotional support through their telephone and social media communication.

32. The Tribunal asked both parties during their separate questioning whether the  significant age difference of 28 years between them is considered to be an issue. The applicant said that he does not believe it is relevant. The Tribunal put to the applicant that he is the only son in his family and is still of an age where he could consider starting a family. Such a prospect was highly unlikely given the sponsor’s age. When asked if these factors were of concern to his parents and siblings, the applicant again claimed that these factors did not concern him or his family. The Tribunal is not entirely satisfied by this response. When asked similar questions the sponsor was more pragmatic and credible in her responses – she told the Tribunal that she believed that the applicant’s family were concerned by the parties’ age gap; more importantly it was becoming an increasing concern for herself (the sponsor) in recent years.

33. The sponsor also told the Tribunal that her pragmatic nature impels her to take a clear-eyed view of the parties’ possible future together, should the applicant come to Australia. The significant age difference between them has given the sponsor cause to question the nature of the parties’ commitment to each other, particularly as the applicant would be seeking to find work and engage with the wider Australian society, including his interacting with single women younger than herself (the sponsor).

34. In her testimony the sponsor also told the Tribunal that whilst both parties were of the Islamic faith, she was a Sunni Muslim and the applicant was a Shi’a Muslim. Whilst this has not been an issue during their ‘online’ relationship, she would expect him to convert to becoming a Sunni Muslim should they embark upon a shared future together. By her mentioning this religious difference the sponsor appeared to be raising it as indicative of her growing misgivings about the parties’ future spousal relationship.

35. The parties were able to impart some knowledge in regard to each other’s circumstances. In particular, it is clear that the applicant has come to know the sponsor’s family members through their online communication over the years. However this level of friendship and hospitality does not, in the context of the other evidence, satisfy the Tribunal that the parties have a commitment to each other such as would be expected in a genuine relationship.

36. The future plans outlined in evidence at the hearing are generic with little detail provided. The applicant spoke of his looking to find work then start a family. The sponsor’s evidence regarding future plans did not include having children -  which again reflects her more pragmatic nature. Neither party expressed any firm plans for marriage in the foreseeable future.

37. It is accepted that the parties have been in almost daily online contact since the start of their relationship. The Tribunal is satisfied that there is some degree of companionship and affection between the parties. However, when weighing up the relevant facts and evidence considered cumulatively, the Tribunal is not satisfied that the parties demonstrate a mutual commitment to an intention to marry each other and live together long term. The Tribunal pays particular regard to the sponsor’s misgivings – expressed and implied during the hearing - regarding the 28 year age gap; their religious differences and whether or not there are realistic prospects for the parties to have genuine future together as spouses.

38. On the basis of the evidence before it, the Tribunal is not satisfied that the parties have demonstrated that they have a commitment to each other that reveals a genuine intention to marry and live together as spouses. The Tribunal is not satisfied that the parties that the parties genuinely intend to marry; and that the marriage is intended by the parties to take place within the visa period; nor is it satisfied that the parties genuinely intend to live together as spouses, either at the time of application or the time of this decision.

39. The applicant therefore does not meet cl.300.215, cl.300.216 and cl.300.221.

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

    DECISION

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

    Stephen Conwell
    Member