El Akkoumi (Migration)

[2017] AATA 1836

El Akkoumi (Migration) [2017] AATA 1836 (21 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Reham El Akkoumi

VISA APPLICANT:  Mr Tarek Obeid

CASE NUMBER:  1607346

DIBP REFERENCE(S):  OSF2015/05470

MEMBER:Margie Bourke

DATE:21 September 2017

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 21 September 2017 at 10:47am

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Genuine relationship – Marriage celebrated but not registered in Lebanon – Family approval and support – Still intend to marry in Australia – Pregnant with twins – Plans for home and employment

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulation 1994, Schedule 2 cl 300.211, cl 300.214, cl 300.215, cl 300.216, cl 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 19 February 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 the parties genuinely intend to live together as spouses at the time of application and at the time of decision.

3. The delegate refused to grant the visa on 10 May 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 genuinely intend to live together as spouses.

4. The review applicant appeared before the Tribunal on 14 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone, and from the review applicant’s sister Ahlam Elakkoumi, the visa applicant’s brother Mesbah Obeid, and the review applicant’s brother Moustafa Elakkoumi. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

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, at both 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 birth certificate, I am satisfied she is an Australian citizen by birth. Based on the Islamic marriage certificate I accept the parties married in Lebanon in a religious ceremony that was not registered in Lebanon.  Based on the oral and written evidence before me including the statutory declaration of Belal Assaad dated 23 June 2017 who declares he will be solemnising the marriage in Australia, I accept the parties intend to marry. Accordingly, the visa applicant meets the requirements of cl.300.211.

9. Based on the evidence before me, there is no reason the visa applicant does not continue to meet cl.300.211 at the time of decision.

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

10. 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 identity documents provided and I am satisfied that both parties were born in the year 1991.   Based on the evidence before me, including the photographs, statutory declarations of family members and friends, the oral evidence in the hearing of the parties and witnesses I am satisfied the review applicant and visa applicant have met and are known to each other personally.  I am satisfied the parties met in person for the first time in Malaysia in January 2015 when both parties were over 18 years of age.  Therefore, at the time of application, the visa applicant meets the requirements of cl.300.214.

11. Based on the evidence before me, there is no reason the visa applicant does not continue to meet cl.300.214 at the time of decision.

    Do the parties genuinely intend to marry?

12. 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. Based on the evidence before me I am satisfied that the parties met in Malaysia in January 2015 with the purpose of testing whether they wished to become engaged and to marry.  This meeting was with the approval of both parties’ families, and family members accompanied the review applicant and the visa applicant to Malaysia.  I accept the evidence that after meeting each other in person, the parties confirmed their intention to become engaged and to marry.   I accept the parties became engaged on 14 January 2015, and planned to marry in Australia. I accept the parties planned to marry in Australia within the required visa period.  For these reasons I am satisfied that at the time of application the parties had a genuine intention to marry as required by cl.300.215(a) and the proposed date for the marriage was within the visa period as required by cl.300.215(b). Therefore, the visa applicant meets the requirements of cl.300.215.   

13. I have considered the evidence before me and accept that the parties married in a religious ceremony in Lebanon in March 2017.  I accept that the parties always intended to marry, and register their marriage in Australia. I accept they participated in the religious ceremony in Lebanon after the visa refusal so they could reside together in Lebanon pending the review process. I have considered the statutory declaration of Belal Assaad dated 23 June 2017and accept the parties intend to marry in Australia.  I note that the date of 9 September 2017 nominated in the statutory declaration, for the proposed marriage has passed.  I accept the oral and written evidence that the parties  intend to marry  in Australia within the prescribed visa period, and at the earliest opportunity. For these reasons I am satisfied the visa applicant continues to meet the requirements of cl.300.215 at the time of decision.

    The marriage certificate

14. The review applicant’s representative provided the tribunal with a copy of the Islamic marriage certificate and a submission dated 5 April 2017 which stated the marriage is recognised under Lebanese law. I considered the marriage certificate, and in particular that many aspects were left blank, including the date and place it was submitted to the Personal Status office, the number it was recorded under, and the final validation implementation  number and date.

15. The tribunal requested the review applicant provide confirmation from the Lebanese consulate that the marriage certificate was valid and had been issued by the relevant Lebanese authority. The representative then advised the marriage certificate was not registered with the Lebanese registry. I am satisfied the marriage certificate provided to the tribunal did not include any information that attempted to infer it had been registered with the Lebanese authorities. I accept the submissions of the review applicant’s representative that the marriage certificate was provided to them as evidence that the parties had participated in the religious ceremony, but the parties never instructed or indicated the marriage had been formally registered.  The representative mistakenly inferred the certificate was registered, and submitted it to the tribunal as such.  I accept the representative advised the tribunal the certificate was not registered immediately that he was advised by the review applicant that the marriage certificate had not been registered.

    Do the parties genuinely intend to live together?

16. 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 husband and wife 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.

17. 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.  In making my time of application findings I have applied the principles espoused in Bretag v MILGEA [1991] FCA 582, and considered the subsequent history of the relationship so long as it tends to show the existence or non-existence of facts relevant to the issue to be determined.

18. I find the evidence of the review applicant’s sister and brother, and the visa applicant’s brother both credible and persuasive. The tribunal accepts the parties’ siblings consider the relationship between the review applicant and the visa applicant is genuine. I accept the opinion of the parties’ siblings  that the visa applicant provides support to the review applicant, and that both families consider the relationship as a long term spousal relationship. I accept that the review applicant visited the visa applicant in mid 2016 and stayed with his family.  I accept the review applicant returned to Lebanon in January 2017, married the visa applicant in an Islamic religious ceremony and lived with him until 10 July 2017.  I accept the parties lived together after the religious marriage, managed their household, and the visa applicant financially supported the review applicant during this time.  I accept the review applicant is pregnant with twins which are due in December 2017.

19. I accept that at the time of application the parties resided in different countries, and were financially independent and lived in different households. I accept that the parties’ families, friends and work colleagues considered they were engaged and that they intended to marry at the time of application.  I accept the parties were committed to the relationship at the time of application.  

20. I accept the parties plan to reside with the review applicant’s parents and then will live in a home owned by the visa applicant’s brother and next door to the home in which the visa applicant’s brother Mesbah and his family resides. I accept the visa applicant’s brother can also offer the visa applicant employment. I accept the review applicant intends to take maternity leave, paid and then unpaid for two years.

21. There was some inconsistent evidence from the visa applicant in relation to the review applicant’s due birth date, her length of maternity leave and whether the option of residing in the review applicant’s investment property remained viable at the time of decision.  These issues were put to the review applicant pursuant to s.359AA, and she chose to comment or respond immediately in the hearing after a short consultation with her representative. Other points of inconsistency in the evidence I am satisfied results from the parties forgetting minor details whilst giving evidence; these include the review applicant did not state the visa applicant sometimes stayed away overnight when he was working in 2017, and the visa applicant did not state that they both rode a jetski for the first time in Malaysia in 2015. 

22. I put some weight on the inconsistencies in the visa applicant’s evidence that indicate the communication between the parties  is not as strong as claimed.  I find the visa applicant gave the wrong due date for the birth of his twins.  I find the visa applicant was not aware that the review applicant’s investment property was being renovated for units and could not be occupied by them.  I find the visa applicant was aware the review applicant was taking maternity leave but stated it was for six weeks. I am satisfied that these inconsistencies do not indicate that the parties do not genuinely intend to live together as spouses. I am satisfied these inconsistencies are the result of the stresses of the review applicant’s pregnancy, of the parties not being able to communicate in person, and the anxiety over the pending review and decision about the visa applicant’s visa status. On balance I am satisfied that the evidence before me is evidence that the parties genuinely intend to live together as spouses.

23. I am satisfied that the parties have lived together as spouses in Lebanon, and the review applicant is pregnant with twins.  I am satisfied the parties represent themselves to family, friends and colleagues as a couple, and are accepted as a married couple by their family. I am satisfied the parties are committed to each other, and intend to manage a household together.  I am satisfied the parties have discussed plans for their future including where they will reside and their means of financial support for each other and their children. Based on the evidence before me I am satisfied that the review applicant and the visa applicant genuinely intend to live together as spouses.

24. I am satisfied that at the time of application the parties genuinely intend to live together as spouses. Therefore the visa applicant meets the requirements of cl.300.216. I am further satisfied that at the time of decision, the parties continue to genuinely intend to live together as spouses, and the visa applicant continues to meet the requirements of cl.300.216.

    Do the parties continue to meet time of application requirements?

25. 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. I have set out above that I am satisfied that the visa applicant continues to satisfy cl.300.211, cl.300.214, cl.300.215, and cl.300.216 at time of decision. Therefore the visa applicant meets the requirements of cl.300.221.

26. 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

27. 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