Dabdoub (Migration)

[2018] AATA 3033

Dabdoub (Migration) [2018] AATA 3033 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Sammeh Dabdoub

VISA APPLICANT:  Mr Mouhamad El Rmayhi

CASE NUMBER:  1705273

DIBP REFERENCE(S):  2015054654 OSF2015/054654

MEMBER:Margie Bourke

DATE:2 July 2018

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.300.211, cl.300.214, cl.300.215, cl.300.216 and cl.300.221 of Schedule 2 to the Regulations.

Statement made on 02 July 2018 at 10:25am

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Whether the parties genuinely intend to live together – Consistent, credible evidence provided by family members – Evidence of parties consistent with a genuine intention to live together as spouses -  Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359AA
Migration Regulations 1994 (Cth), r 1.15A(3)-(4), Schedule 2, cls 300.211, 300.214, 300.215, 300.216, 300.221

CASES
Bretag v MILGEA [1991] FCA 582

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 15 April 2015. 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. Relevantly to this matter the primary criteria include cl.300.216 and cl.300.221, which require that the parties genuinely intend to marry.

3. The delegate refused to grant the visa on 22 February 2017 on the basis that the visa applicant did not satisfy cl.300.216 and cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the review applicant and the visa applicant genuinely intend to live together as spouses.

4. The review applicant appeared before the Tribunal on 28 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the visa applicant’s mother via telephone, and the review applicant’s mother, the review applicant’s sister, the review applicant’s sister in law and the review applicant’s cousin and the review applicant’s sister in law’s mother who all attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The main issue in the present case is whether the parties genuinely intend to live together as spouses, both at the time of application and at the time of decision.

   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. Based on the review applicant’s Victorian birth certificate I am satisfied that she is an Australian citizen by birth. Therefore I am satisfied the visa applicant meets the requirements of cl.300.211 at the time of application and continues to meet the requirements at the time of decision.

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

9. 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. I have considered the written and oral evidence before me including statutory declarations of people who are with the parties when they were together. I have considered the review applicant’s Victorian birth certificate and the visa applicants translated extract of family registrar which includes his date of birth. I have considered the photographs provided by the review applicant.

10. I am satisfied based on the evidence before me that at the time of application the parties had met in person and had turned 18 years of age at that time. I am satisfied therefore, that at the time of application, the visa applicant meets requirements of cl.300.214, and that he continues to meet these requirements at the time of decision.

    Do the parties genuinely intend to marry?

11. 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.  I have considered the consistent evidence before me from the review applicant and the visa applicant in relation to their intended marriage. I am satisfied that the parties met with the sheikh, Omar Haouli in 2014 who was to perform the proposed wedding and oversee the ‘writing in the book’. I am satisfied that the parties planned to marry at the home of the review applicant’s parents. I am satisfied that the parties continue to plan to marry at the review applicant’s parents’ home. I am satisfied that the parties originally planned to celebrate the reception at a particular venue, and they continue with this plan at the time of decision. I am satisfied that the parties have currently arranged with the chic to celebrate their marriage on 6 October 2018. At the time of application the parties a genuine intention to marry and satisfy the requirements of cl.300.215(a). I am also satisfied that the parties have a genuine intention to marry and continue to satisfy the requirements of cl.300.215(a) at the time of decision.

12. The proposed date for the marriage is within the visa period as required by cl.300.215(b). I note that the visa applicant gave oral evidence that he was not aware that the marriage was required to be within a particular period. However based on the evidence before me the visa applicant meets the requirements of cl.300.215.

    Do the parties genuinely intend to live together?

13. 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.

14. 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. I have considered the consistent evidence of the review applicant and the visa applicant in relation to their plans to rent a home, and the preferred suburbs in which they propose to rent. I accept that the suburb preference was in relation to where the visa applicant would be working. I accept that the plan is that the visa applicant would work as a spray painter for his brother, J,  who has a panel beating business.

15. I am satisfied that the review applicant was studying at the time of application, and she has completed her childcare degree at the time of decision. I am satisfied that the review applicant is currently employed as an educator within the childcare system. I am satisfied based on the consistent evidence before me that the parties have discussed that the review applicant will continue to work after their marriage. I am satisfied that the parties have discussed that they will live in their own rental accommodation after their marriage and not with family. However I accept that the visa applicant will live with his brother, J, and the review applicant will continue to live with her parents until the date of their marriage.

16. I am satisfied that the parties have discussed and planned to have a family and hope to have four children. I accept that the visa applicant stated they had discussed starting a family within 6 to 12 months of their marriage. The review applicant initially stated they had not discussed when they would start their family. I put this inconsistency to the review applicant pursuant to s.359AA, and have considered her evidence that she had forgotten that particular conversation. I accept the review applicant’s evidence that they had a conversation about starting a family within 6 to 12 months of their marriage. In my assessment of the parties’ evidence, I have considered that this was the only aspect of the parties’ evidence where there was initially any inconsistency.

17. I have considered the evidence of the family members from both the review applicant’s family and the visa applicant’s family. I am satisfied that the review applicant’s mother and the review applicant’s sister have met and like the visa applicant and are comfortable that he is genuine in his intentions towards the review applicant. I am satisfied that all witnesses consider the relationship is genuine. I accept that the evidence is based not only on when the parties have been together in 2014 and 2017, but also from witnessing or hearing telephone and What’s App conversations over the years between the parties.  I have considered the many photographs provided by the review applicant after the hearing, which show the parties together, and with other family members in 2017.

18. I give particular weight to the evidence of the review applicant’s sister that she is really happy for the review applicant and hopes the visa applicant is able to come to Australia soon. I accept the review applicant’s sister has looked into wedding dresses with the review applicant to prepare for the wedding. I also give particular weight to the evidence of the review applicant’s sister-in-law, who is married to the visa applicant’s brother, S. This witness stated the family would be providing furniture and white goods to assist the parties to set up in their new rental home immediately after the marriage, and would also provide additional financial assistance if required.

19. I give particular weight to the evidence of the review applicant’s mother, who accompanied the review applicant to Lebanon in 2017, and confirmed the review applicant and visa applicant met most days. She confirmed the visa applicant accompanied the review applicant, with her parents, to Turkey for a few days. The review applicant’s mother said they visited members of both her family and the visa applicant’s family during their stay in Lebanon.

20. In reaching my findings about the parties genuine intention to live together as spouses at the time of application I have applied the principles espoused in Bretag v MILGEA [1991] FCA 582, and I have considered subsequent evidence of the relationship so long as it tends to show the existence or nonexistence of facts relevant to the issue to be determined at the time of application.

21. In reaching my findings I have considered that the review applicant has provided the tribunal with documents and information not provided or available to the Department, and that the tribunal had the opportunity to hear evidence from members of the visa applicant’s family and from members of the review applicant’s family at the hearing.  I am satisfied the evidence before me is not conflicting or inconsistent, which was the conclusion of the delegate after the interview with the parties prior to the department decision record dated 22 February 2017.

22. I am satisfied that the parties intend to live together in a home that they rent, and that they both intend to be employed after their marriage. I am satisfied that the parties generally intend to share responsibilities for their daily resources and expenses, and they intend to pool resources and share responsibilities for their financial obligations.

23. I am satisfied that the parties intend to start a family and share responsibility for the support and care of their children in the future. I am satisfied that the parties intend to share responsibility for the upkeep of their rented home, and the contents.

24. I am satisfied that the parties have represented themselves to family, friends and the community as an engaged couple and that they genuinely intended to marry and live together as spouses. I am satisfied that in the time that the parties spent together in 2014 and in 2017, they undertook social activities together, which mostly involved visiting relatives and travelling together.

25. I am satisfied that the parties see their relationship as long-term. I am satisfied that the parties have now been engaged for over three years. I am satisfied that the parties have continued to support each other since they became engaged and that they are committed to their relationship.

26. For all the above reasons I am satisfied that the parties genuinely intend to live together as spouses at the time of application, and that they continue to do so at the time of decision. Therefore I am satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore the visa applicant meets the requirements of cl.300.216.

    Do the parties continue to meet time of application requirements?

27. 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. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses. For the reasons set out in the above paragraphs I am satisfied that the visa applicant continues to meet the requirements of 300.211, 300.214, 300.215, and 300.216 at time of decision. Accordingly, the visa applicant meets the requirements of cl.300.221.  

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.300.211, cl.300.214, cl.300.215, cl.300.216 and cl.300.221 of Schedule 2 to the Regulations.

    Margie Bourke
    Member