Daher (Migration)

[2017] AATA 117

Daher (Migration) [2017] AATA 117 (25 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Daher

VISA APPLICANT:  Ms Hanan Salloum

CASE NUMBER:  1603115

DIBP REFERENCE(S):  BCC2015/3052659

MEMBER:David Barker

DATE:25 January 2017

PLACE OF DECISION:  Sydney

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

Statement made on 25 January 2017 at 8:13am

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – cl 300.216 – Genuine intention to live together as spouses – Discrepancies in accounts of relationship – Unaware of income sources – Limited plans for household – Limited insight into the applicant’s life in Syria

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulation 1994, Schedule 2 cl 300.216, 300.221, r 1.15A

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 16 October 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. 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.300.221.

3. The delegate refused to grant the visa on 21 February 2016 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 parties intend to live together as spouses.

4. The review applicant appeared before the tribunal on 19 January 2017 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant and Ms Diana Daher. The tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   BACKGROUND

6. The visa applicant, Ms Hanan Salloum, was born in Tartous, Syria on 15 February 1989 and is a citizen of Syria.  She is currently 27 years old.

7. The review applicant, Mr Ali Daher, was born in Bankstown, NSW on 6 August 1991.  He is currently 25 years old. 

8. In the visa application, the parties stated they met in Syria on 10 May 2015 and became engaged to marry on 12 May 2015.  

9. The applicant and sponsor provided documents to the department in support of the application including but not limited to the following:

   ·documents regarding their identities and marital status;

   ·a Notice of Intended Marriage, issued on 4 September 2015 and valid until 4 March 2017;

   ·relationship statements prepared by the parties;

   ·witness support statement;

   ·telephone records.

10. In the decision record, a copy of which was provided to the tribunal with the review application, the delegate stated the parties did not provide evidence to the department regarding the financial aspects of their relationship. The delegate was not satisfied there was any evidence to corroborate the visa applicant’s claim, when interviewed by the department that the review applicant had sent her money through his sister in June 2015.  In relation to the anticipated household aspects of their relationship the delegate noted the visa applicant claimed she had not talked about this issue with the visa applicant as it was too early in their relationships to discuss such a matter. In relation to the social aspects of the relationship the delegate noted the parties have not provided photographs that they had met and are known to each other and on this basis the delegate was not satisfied the parties had met in person.

11. The delegate raised concern in relation to the circumstances surrounding the commencement and development of the parties’ relationship and whether it was a genuine and seen by the parties as a long term relationship.  The delegate noted the applicant was hesitant answering most questions during her phone interview and was unable to demonstrate insight into the review applicant’s daily life, where he works, their future domestic arrangements or wedding plans. The delegate was not satisfied that the parties had demonstrated that they intend to live together as spouses and on that basis, was not satisfied that the parties meet regulation 300.216.

12. Prior to the hearing the review applicant provided additional documents to the tribunal including but not limited to the following:

    ·photographs;

    ·records of the financial remittances;

    ·records of electronic communication;

    ·telephone records.

    RELEVANT LAW

13. The Prospective Marriage (Temporary) (Class TO) visa is a visa for persons seeking to enter Australia to marry, after their first entry to Australia, an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse, with a view to remaining permanently.

14. At the time the visa application was lodged Class TO contained only one subclass: Subclass 300 (Prospective Marriage).

15. 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 to be satisfied at the time of application include that:

    •the visa applicant establishes that the parties genuinely intend to marry and intend that the marriage will take place within the visa period: cl.300.215; and

    •the decision maker is satisfied that the parties genuinely intend to live together as spouses: cl.300.216.

16. Section 5F of the Act defines the term ‘spouse’ 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: s.5F(2)(a). Additionally, the tribunal must be satisfied that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together, or do not live separately and apart on a permanent basis: s.5F(2)(b)-(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). Whilst 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. The question is what their intentions are after marriage, as manifested by the evidence before the tribunal.

17. The primary criteria to be satisfied at the time of decision are that the applicant continues to meet cl.300.211, 300.214, 300.215 and 300.216: cl.300.221.

18. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria..

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether at the time of application and time of decision the visa applicant and review applicant genuinely intend to marry within the visa period and genuinely intend to live together as spouses.

20. In making my findings, I have considered the documents contained in the department and tribunal files as well as the oral evidence provided by the applicant, sponsor  and Ms Diana Daher at the hearing.

    Credibility

21. There were significant differences in the oral evidence provided by the review applicant and visa applicant during the hearing regarding the inception and development of their relationship. The tribunal put the differences to the review applicant, pursuant to Section.359AA of the Act for his comment. In doing so, the tribunal explained that it would be putting information to the review applicant which would be the reason, or a part of the reason, for affirming the decision under review. The tribunal explained why this information was relevant and invited the applicant to respond to or comment on the information. The review applicant was told if he required more time to comment on or respond to the information he could request an adjournment.

22. The particulars of the information put to the review applicant was that he gave evidence he and the visa applicant had frequent contact with each other by telephone over a period of years prior to his travel to Syria in May 2015 to meet her face-to-face for the first time, whereas the visa applicant said the first time she spoke with the review applicant was when he visited Syria in May 2015 and that she said she had not spoken to him over the telephone before that time.

23. The applicant told the tribunal he did not wish time to consider his response and then said he does not know why the visa applicant said what she did as he had spoken to her before they met. He does not know whether the visa applicant misunderstood the question but that there was definitely communication between them. 

24. I do not find the response provided by the review applicant to the information put to him pursuant to section 359AA of the Act convincing for the following reasons. I have reviewed the telephone records provided with the visa and review applications and note they do not pertain to any period earlier than August 2015. The review applicant suggested the visa applicant may not have understood the question put to her in relation to this issue. I note the issue of whether there was communication between the parties was explored at some depth with the visa applicant during the hearing and she was asked a number of different questions to seek her evidence in relation to this issue. Ms Diana Daher also at another point in the hearing suggested the interpreter did not fully understand the accent of the visa applicant. I noted no apparent difficulty in the interpreting during the hearing and none was brought to my attention by the visa applicant or the review applicant. I am satisfied the interpreting was conducted in a professional and effective manner. I have preferred the evidence provided by the visa applicant in relation to this issue and have placed significant weight on the difference in the parties’ evidence.

25. As a consequence of the difference in the evidence on what is an important matter to consider in this review, I am not satisfied the review applicant is a reliable witness and have not placed significant weight on his evidence where it is inconsistent with evidence available from the visa applicant or other documentary sources.

    Does the visa applicant intend to marry an eligible person?

26. 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. The parties have provided evidence of their intention to marry and a copy of a Notice of Intended Marriage dated 4 September 2015 and valid until 4 March 2017 is on the Department file.

27. The proposed date of marriage for the purposes of the first notice, namely 6 February 2016, has passed.  The parties gave evidence a further marriage date has not been set as the parties are waiting to know whether the visa applicant’s Prospective Marriage visa will be approved. The visa applicant gave evidence that if her visa is not approved the review applicant will travel to Syria so that the parties can hold a marriage ceremony there. The tribunal is satisfied on the basis of the evidence before it that the parties have displayed an intention to marry.  

28. Accordingly, the tribunal finds that the visa applicant intends to marry the review applicant, who is an Australian citizen as evidenced by his birth certificate. The tribunal finds that the requirements of cl.300.211 of Schedule 2 are met.

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

29. 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.  There are before the tribunal a number of photographs of the parties together, which the review applicant said were taken at a small engagement ceremony and at other locations he visited with the visa applicant in Syria between 10 May 2015 and 17 May 2015.  This evidence is consistent with Departmental travel records contained in the tribunal file.

30. During the hearing the parties gave evidence they are cousins and met for the first time when the review applicant travelled to Syria for the first and only time in May 2015. The parties told the tribunal that the visa applicant’s elder brother and the review applicant’s elder sister are married and reside together in Australia. I accept the oral evidence given by the parties and Ms Diana Daher during the hearing that the visa applicant and Ms Diana Daher are known to each other and have had contact during trips Ms Diana Daher has made to Syria.

31. The review applicant gave evidence he had interacted with the visa applicant extensively, before his trip to Syria in May 2015, over the telephone.  He said he has continued to communicate with her frequently since his return to Australia, either by telephone, or by electronic mediums such as Skype or Whatsapp.  This is not consistent with the oral evidence provided by the visa applicant during the hearing where she has communicated with him since May 2015, but she had not spoken to the review applicant prior to his trip to Syria in May 2015.  The visa applicant provided consistent evidence in relation to this point when I asked her if she had spoken to the review applicant over the telephone, prior to their initial face to face meeting on 10 May 2015.  The visa applicant gave consistent evidence she had no contact with the review applicant by telephone or other mediums, prior to when they met in May 2015.

32. I have noted the parties, in brief written statements they provided the department with the visa application, claimed to have spoken over the telephone prior to their initial face-to-face meeting.  The delegate noted the inconsistency between these claims and the evidence provided by the visa applicant in her interview with the department. The tribunal has reviewed the notes of the visa applicant’s interview with the department and note her evidence during the hearing, in relation to not talking to the review applicant by telephone, prior to their initial face-to-face meeting is consistent to what she said during her interview with the department.  I relation to this issue, I have preferred the evidence provided by the visa applicant over that provided by the review applicant. Accordingly, I find the parties had not communicated with each other prior to their initial face-to-face meeting on 10 May 2015.  Notwithstanding this finding I find, on the basis of the evidence before me that at the time of application in October 2015 the parties had met and were known to each other personally.  I

33. Therefore, at the time of application, the requirements of cl.300.214 were met.

    Do the parties genuinely intend to marry?

34. 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.

35. The Tribunal notes a Notice of Intended Marriage, dated 4 September 2015, which says that the parties plan a marriage ceremony on 6 February 2016. The Tribunal also notes this Notice of Intended Marriage is valid until 4 March 2017 but no further marriage date has been set at this stage.  The review applicant gave evidence he intends for the marriage celebration to be held at a venue in Bankstown, Villa Blanca, which is a location that he knows well and has been utilised successfully by other family members and friends for wedding festivities.  He indicated he has made no bookings and does not have any particular date in mind but said, in the event she is granted the Prospective Marriage visa, the parties would marry shortly after the visa applicant’s arrival in Australia. The evidence given by the visa applicant in relation to this issue was consistent to that given by the review applicant.

36. On the basis of the information before me, as outlined above, I find that at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a). The proposed date for the marriage was 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?

37. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. 

38. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, I make the following findings.

    Development of relationship

39. I am not satisfied the review applicant has provided reliable evidence in relation to the inception and development of the parties’ relationship.  Despite his claims to the contrary, I do not accept there was extensive communication between the parties prior to their initial face-to-face meeting in May 2015.   During the hearing the review applicant was unable to tell me precisely where the visa applicant lived in Syria, nor where their small, informal engagement ceremony was held.  He said he travelled to Syria with his elder sister, Ms Diana Daher and her husband, the elder brother of the visa applicant.   He said they flew to Lebanon and were met at the Syrian border and taken to where the visa applicant resides.  He was not clear whether this was a government or rebel held area in Syria, as he is relatively unaware of current events in Syria, beyond knowing from watching television news reports that there is a war going on there.  In relation to what qualities and personality features he values in the visa applicant, the review applicant was unable to identify any beyond her innocence and her lack of familiarity with modern technology.  When asked to clarify what he meant, by referring to her as innocent, the review applicant explained that the visa applicant was like his mother and he did not think she had any prior relationships with other men.

40. After considering all of the available evidence, I am not satisfied the parties had the amount of contact, prior to the face to face contact which occurred during the review applicants seven day trip to Syria in May 2015, which has being claimed by the review applicant. I find the claims in relation to the inception and development of the parties’ relationship to be unconvincing and not supportive of the contention they genuinely intend to live together as spouses in Australia.

    Nature of the household

41. The delegate noted the parties provided no substantive information in relation to how they anticipated establishing a household together in Australia.  The delegate further noted the visa applicant said, at the time of her telephone interview, she had not discussed this issue with the review applicant.

42. During the hearing the parties gave evidence that whilst plausible was quite general in nature.  They gave evidence he and the visa applicant would initially live where he currently resides in his family home with his parents.  He said they would seek their own rental accommodation when he had ascertained where she would like to live and thinks this would likely be close to other members of their extended family system in Sydney. The review applicant indicated he has not got any particular place in mind at the current time.

1. The parties gave evidence the review applicant would continue to work and that the plan is the visa applicant would seek work in her area of qualification, namely as a hairdresser.

2. I have noted there is consistency in the oral evidence provided by the parties in relation to the plan they live in rental accommodation but that no other specific details regarding their anticipated future household arrangements were provided.  I consider the available evidence in relation to the household aspects neither support or contradict the contention they intend to live together in Australia in a genuine spousal relationship.

   Financial aspects

3. I have considered the available evidence in relation to the financial aspects of the parties’ relationship and for the following reasons find they do not support the contention they intend to together in Australia in a genuine spousal relationship.

4. There is documentary evidence that the review applicant has provided some financial support to the visa applicant in the period since June 2016, amounting to around $2,488, which the parties claim she has used for discretionary spending.  I note the visa applicant is in paid employment and lives with her family in a part of Syria which is relatively untouched by the war related difficulties currently impacting that country. I am satisfied she is not reliant on financial support from the review applicant to meet her regular living expenses. In light of this I do not find in and of itself the suggestion she uses money sent to her by the review applicant to buy clothes and discretionary items implausible. I have however placed limited weight on this evidence as the financial remittances where provided following the department’s refusal of the Prospective Marriage visa and the delegate’s discussion of the lack of evidence in relation to the financial aspects of the parties’ relationship and I am not satisfied it can be viewed outside of this context. 

5. The visa applicant claimed the review applicant has sent her money since June 2015. She has previously told the department she received money from the review applicant through his sister in June 2015. The review applicant gave evidence he gave the visa applicant money when he was in Syria in May 2015 and that her brothers in Australia also send her mother money.

6. The visa applicant was able to identify the review applicant’s main source of income, from employment in a camera store.  She was however unaware he supplemented his regular annual income from this job, which amounts to $50,000, through income he earns as a photographer which provides him earnings of around $5,000 per month.  The visa applicant described the review applicant’s interest in photography but seemed unaware he earned money, up to and exceeding his employment earnings, from this activity.

7. On the basis of the available evidence, I accept that the review applicant has provided some financial support to the visa applicant since June 2016 but I am not satisfied the evidence establishes any financial support between the parties prior to that time. I am satisfied the visa applicant has an increased knowledge of the review applicant’s financial circumstances in Australia but that she remains unaware of the actual extent of his overall earnings. 

   Social aspects

8. As I have discussed elsewhere in this decision, the review applicant provided photographs from his 2015 trip to Syria as part of the review application. On the basis of these photographs I accept the parties spent time with each other and with some members of their extended family during the seven days the review applicant was in Syria during May 2015.

9. The parties are cousins and I accept some members of their extended family system were present with them in Syria when they claim to have held a small, informal engagement celebration.  I note the photographs of this event include the parties with the visa applicant’s mother and their elder siblings who are married and accompanied the review applicant to Syria in May 2015.  There is no indication the parties have spent time as a couple with members of the general community in Syria during the brief period the review applicant spent there with the visa applicant in May 2015.

10. I note the oral evidence provided by Ms Diana Daher during the hearing, which was consistent with the evidence provided by the review applicant in relation to his contact with the visa applicant, their tentative plans for the wedding celebration and their intent to live together as spouses in Australia.

11. I note no further witness support statements were provided with the review application and that the information provided in witness statutory declarations provided to the department contained information that was not consistent with that provided by the visa applicant when she was interviewed by the department.  The two declarants, Rachel Daher and Mahmoud Daher, claimed to have had contact with the visa applicant in 2014, whilst she indicated she had not met them personally. The statutory declarations are also very brief and similar. They do not provide much detail as to why they consider the parties to have a genuine intent to live together as spouses.  For these reasons, I have placed limited weight on these statutory declarations.

12. After considering the available evidence regarding the social aspect of the parties’ relationship I find it is too limited to support the contention they intend to live together in a genuine spousal relationship.

    Nature of the commitment

13. I have significant concern in relation to the weight which can be given to the review applicant’s evidence in relation to his commitment to the parties’ relationship.  I am not satisfied his evidence in relation to the inception and development of the parties’ relationship is reliable.  The review applicant displayed limited insight into the visa applicant’s life in Syria.  He could report she is innocent by nature, works as a hairdresser, likes feeding animals and has an interest in Angelina Jolie.  However, I found this knowledge did not outweigh his surprising ignorance of the reality of circumstances which would impact on all people in Syria over recent years, irrespective of their allegiances and cultural affiliations. The review applicant could shed limited light on how the visa applicant felt about her countries circumstances, beyond saying he had told her she would find life safe in Australia.  I am not convinced the review applicant’s understanding of the visa applicant and her life circumstances is any more than would be expected to be held by a cousin who has had very limited actual contact with and communication with her. 

14. The review applicant gave evidence he has communicated regularly with the visa applicant since his return to Australia on 17 May 2015 and in support of this claim has provided the tribunal with records of his telephone account and copies of electronic messages sent between the parties. The visa applicant gave evidence during the hearing that the parties started communicating with each other by telephone or Whatsapp since the visa applicant returned to Australia following their engagement in May 2015. I have reviewed the telephone accounts and am not satisfied any conclusion can be reached in relation to the content of any interactions between the parties on the basis of these records.  I have also reviewed the records of electronic interactions between the parties and note they are not dated and it is not apparent when these interactions occurred. I further note there is an indication of numerous missed calls and also audio files, the content of which are not accessible.  The written interactions between the parties in these electronic interactions are in the English language, which the review applicant claims the visa applicant has a basic grasp of. I accept there has been communication between the parties since May 2015, but have placed limited weight on the telephone and other communication records provided by the review applicant because it provides only limited insight into the extent of their commitment to each other and to their intent to live together as spouses.

15. I accept the parties have discussed details of a future life in Australia at a quite superficial level, but I am not satisfied their stated plan to have children and purchase a home establishes they have a genuine commitment to an ongoing spousal relationship with each other.

    Assessment of whether the parties have a genuine intention to live together as spouses

16. The issue in relation to cl.300.216 is whether, at the time of application in October 2015, the review applicant had a genuine intention to live with the visa applicant in a spousal relationship. Having carefully considered the totality of the evidence, I am not satisfied the available evidence supports this contention. I do not find the review applicant to be a reliable source of evidence and have preferred the evidence provided by the visa applicant when evidence from the review applicant or witness is inconsistent with evidence she provided during the hearing, or that which she has previously provided the department.  There appears to have been little interaction of any significance between the parties prior to their first meeting on 10 May 2015.  They claim to have become engaged two days later and to have held a small, informal celebration with a few family members.  There is little evidence they have presented to the broader community as a couple.  The parties’ description of their future plans and anticipated household arrangements is quite general.  There is insufficient evidence in relation to the sharing of expenses or the pooling of finances for the financial aspects of the parties relationship to support the contention they intend to live together as spouses.  The review applicant displays only a limited understanding of the visa applicant’s circumstances in Syria.  For these reasons and in the face of the lack of substantive documentary evidence to support the parties claims, I am not satisfied they have established they have a genuine intention to live together as spouses.  I therefore find that at the time of application the parties did not have a genuine intention to live together as spouses, and therefore cl.300.216 is not met.

    Do the parties continue to meet time of application requirements?

17. 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.  As a consequence of the findings I have made and for the reasons outlined elsewhere in this decision, I am not satisfied the available evidence establishes the parties cl.300.216 at time of decision.  Accordingly, cl.300.221 is not met.

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

    DECISION

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

    David Barker
    Member