El Hussein (Migration)

El Hussein (Migration) [2022] AATA 3348 (26 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Miss Houda El Hussein
VISA APPLICANT:  Mr Mounir El Sanoussi
REPRESENTATIVE:  Mr Nazim El-Bardouh
CASE NUMBER:  2011725
HOME AFFAIRS REFERENCE(S):          BCC2019/3122031
MEMBER:Justin Meyer
DATE:26 August 2022
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 of Schedule 2 to the Regulations
·cl.300.214 of Schedule 2 to the Regulations
·cl.300.215 of Schedule 2 to the Regulations
·cl.300.216 of Schedule 2 to the Regulations; and
·cl.300.221 of Schedule 2 to the Regulations

Statement made on 26 August at 12:25pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuinely intend to live together as spouses – parties were neighbours in Lebanon – significant evidence of communication – joint travel – wedding plans postponed by the COVID19 pandemic – money transfers – employment plans – joint social activities – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 300.211-300.216, 300.221, 300.222; rr 1.15, 1.20
statement of decision and reasons
application for review

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).
The visa applicant applied for the visa on 20 June 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 include questions of whether the visa applicant intends to marry an eligible person, whether the applicants met in person and are they known to each other personally and if the parties genuinely intend to marry and genuinely intend to live together.
The delegate refused to grant the visa on 22 June 2020 on the basis that the visa applicant did not satisfy cl 300.216 and 300.221 of Schedule 2 to the Regulations because of weak evidence that the parties genuinely intended to live together as spouses.
The review applicant appeared before the Tribunal on 2 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mounir El Sanoussi, the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether I am satisfied that at the time of application, and at the time of decision, the visa applicant and the review applicant genuinely intended to live together as spouses and marry.
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. Those criteria require that, at the time the visa application was made, the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; the parties have met and are known to each other personally; the parties genuinely intend to marry and intend to do so during the visa period; and the parties genuinely intend to live together as spouses. Accordingly, in order to determine whether the visa applicant continues to meet those requirements, it is first necessary to consider whether they were met at the time of the visa application.
Does the visa applicant intend to marry an eligible person?
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. Departmental records indicate that the review applicant is an Australian citizen.
Was the visa applicant 18 at the time of application?
Clause 300.212A requires that the visa applicant has turned 18. On the evidence before it, being passport records showing a date of birth in the 1970s, the Tribunal finds that cl 300.212A is met.
Is the sponsorship prohibited?
Clause 300.212 requires that at the time of application the review applicant is not prohibited from being a sponsor in certain circumstances where she was granted a woman-at-risk visa in the five years immediately preceding the current visa application. On the evidence before it, the Tribunal finds that the review applicant is not prohibited from being a sponsor, and therefore cl 300.212 is met.
Is the visa applicant sponsored as required?
Clause 300.213 requires that at the time of application the visa applicant is sponsored by the review applicant, and that the review applicant has turned 18. The review applicant has identified herself that leads to these requirements being satisfied. Therefore, cl 300.213 is satisfied.
Clause 300.222 requires that the sponsorship referred to in cl 300.213 has been approved and is still in force. Approval of sponsorship is subject to a number of limitations contained in the Regulations including the following: reg 1.20J sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship; reg 1.20KA limits the period before which certain Parent visa holders can sponsor another person for a Partner visa; reg 1.20KB limits sponsorship by persons charged with, or convicted of, certain offences (where the visa application was made on or after 27 March 2010); reg 1.20KC limits sponsorship by persons convicted of a relevant offence in relation to which they have a significant criminal record (where the visa application was made on or after 18 November 2016).
There is no suggestion that these requirements are not in place and therefore, on the evidence before the Tribunal the requirements of cl 300.222 are met.
Have the applicants met in person and are they known to each other personally?
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.
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.
The parties both have a Lebanese background. The review applicant (sponsor), settled in Australia and became an Australian citizen. The visa applicant was born, and lives, in Lebanon.
The review applicant (sponsor), is a woman in her 50s, who was previously married. Her divorce documents were evidenced. The visa applicant is also in his 50s and has never married. The parties do not have children or together care for children.
Both parties gave evidence of how they first knew one another as neighbours in Lebanon in the 1970s. They had a chance meeting as adults in Lebanon in 2014 when the review applicant (sponsor), visited for a wedding. They became friendly again and rekindled their connection. They gave a spontaneous account of getting to know one another, communicating a great deal on Skype and committing to a relationship in 2018.
This account was corroborated by declarants who know the parties.
Messaging and other forms of contacting took place. There is voluminous evidence of this before the Tribunal, and significantly more than was seen by the delegate.
The parties agreed to meet in person in Lebanon and they have holidayed in Turkey together accompanied by a relation in January 2019, and then travelled to Lebanon together. There is photographic and oral evidence to this effect, which I accept.
I find that the parties communicated regularly after their first face to face meeting as adults in 2014. There are significant messaging and video call records visible between the parties.
Both parties were above the age of 18 at first meeting and had met in person at the time of application, thereby satisfying cl.300.214 of the regulations, and specifically cl.300.214(1).
I find the couple had earlier commenced a personal relationship whilst communicating in their respective countries.
Marriage was suggested, with both parties agreeing to marry. They conducted a nikkah ceremony (traditional Islamic engagement, not a legal marriage for Australian purposes). This was conducted in Lebanon witnessed in person by family and online by Australia relatives. They were engaged on 2 February 2019. The review applicant (sponsor), visited Lebanon from 25 December 2019 until 31 January 2020. The parties have not seen each other since, due to COVID-19 travel restrictions, financial difficulty, and the review applicant’s (sponsor’s) medical conditions.
The parties went to public places together, as indicated in oral evidence and in numerous photographs submitted to the Tribunal. The respective families of the parties know each other. The relationship was approved of.
Therefore, I find that the visa applicant was at the time of - application 20 June 2019 -intending to marry an Australian citizen and this satisfies cl.300.214(2).
I find that the intention of the parties is to marry soon in Australia, as the review applicant (sponsor) chooses to live in Australia because her family lives there and because the visa applicant is willing to make a new life in Australia with her. The parties gave a straightforward account of planning to marry before a sheikh and celebrating at the review applicant’s (sponsor’s) brother’s house in Melbourne.
The expectation is that this marriage would therefore occur within the visa period.
The parties provided evidence and a receipt for a deposit on 24 April 2019 of AUD1,000 to a reception venue for their planning wedding later that year (which ultimately did not take place because of the Covid pandemic).
From questioning the parties I find that they plan to marry as soon as practicable once the applicant is in Australia and I assess this as being within nine months of his arrival.
Whether the parties genuinely intend to marry & genuinely intend to live together
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’.
The Tribunal has considered the plans of the parties to marry in Australia, and as noted, accepts that they intend to go through a legal marriage ceremony as described within the prescribed period.
The Tribunal goes on to examine the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention both to marry and 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 reg 1.15A(3) for spousal relationships: reg 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.
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
Financial Aspects of the Relationship
·Money transfer receipts were submitted from 2020 onwards showing transfer of funds between the parties.
·Information that the review applicant (sponsor) is now a pensioner and has less ability to provide financial support to the applicant.
·Records of AUD5,225 being transferred from the applicant to the review applicant (sponsor) between 3 April 2019 and 16 April 2019.
·The Lebanese economic crisis and shutting down of banks, meant the parties were further restricted from making any concrete plans for their future together as couple.
·The applicant is a truck driver in Lebanon and plans to be the main financial provider should he be granted the visa. The applicant has inquired about his possible employment options in Australia, and will be supported by a contact in applying for work with a Hydroponic Tomatoes business, where the review applicant (sponsor) had previously worked. Her former employer provided a testimonial about her in this context.
·I find these arrangements reflect how the applicant he sees himself as a provider and future husband.
·There is no joint ownership of real estate or other major assets or any joint liabilities. This is understandable considering the parties temporarily reside in different countries. The applicant has an apartment in Lebanon, which the parties have held off on making decisions about given the uncertainty of their visa situation. I make no adverse inference here.
·There has been pooling of financial resources as shown by sending money to each other which is given weight, considering their limited means.
·One person in the relationship does not owe any legal obligation in respect of the other, which is understandable considering the parties temporarily reside in different countries.
·The opportunity to share day-to-day household expenses is similarly limited.
·Overall, the financial arrangements are fitting in the circumstances of persons arranging to marry in this situation and I give them weight.
Nature of the Household
I give regard to the nature of the household (including any joint responsibility for care and support of children, parties' living arrangements; and any sharing of housework), and again, note that the review applicant and the visa applicant have resided away from one another for a long period and have had only two opportunities to be together. The review applicant (sponsor) has been prevented from travelling frequently because of ill health, lack of funds and the Covid pandemic.
The parties discussed with Tribunal their plans to divide their household upon their marriage: the review applicant (sponsor) intends to do cook and clean if the applicant finds employment to support their household. However, the applicant will assist the review applicant (sponsor) with household tasks especially in light of her physical condition and limited mobility due to arthritis in her knees. There is a surgeon’s letter before the Tribunal confirming her condition.
The opportunity on the household consideration is limited. Nonetheless there have been short stays of the parties together, which are modest but real examples of the relationship assuming more of the flavour of a household. I accept the evidence of the parties that they wish to set up a household together once united in Australia. I note that the (review applicant’s sponsor’s) home will be the parties’ place of residence. I find that these are ongoing desires of the parties, from the beginning of their relationship to the present.
Social Aspects
Turning to social aspects of the relationship, I am satisfied that the parties represent themselves to other people as being engaged to be married to each other. There were various family in Lebanon at the Nikkah ceremony of the couple in 2019. I accept that Australian relatives watched online. Photographic evidence supports the presence of friends and family with the parties. This situation points to a level of social recognition. The parties could nominate one another’s friends and the review applicant had informed others of his engagement. I find that the parties represented themselves to others as being engaged from the beginning of their engaged relationship to the present, and that they undertake joint social activities when together, with others. The parties gave a straightforward account of planning to marry before a sheikh and celebrating at the review applicant’s (sponsor’s) brother’s house in Melbourne.
Declarants and correspondents noted the details of the relationship and wrote as to its genuineness.
This factor is given weight.
Commitment to Each Other
In respect of the persons' commitment to each other, the duration of the engaged relationship spans some three years. A good deal of degree of companionship and emotional support is evident from records of and witness accounts of constant communication, electronic and otherwise, over a period of years to the present. Both parties state that they are in constant contact - as evidenced by very extensive records. I find that this is a committed relationship which is treated as long-term, and that the lesser level of face-to-face contact comes about because of the inability of the review applicant (sponsor) to regularly visit due to legitimate constraints. This position adequately explains the time spent apart.
Having had regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons' commitment to each other, I consider these findings together demonstrate that there is an intention of a mutual commitment to a future shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. I am further satisfied that the parties do not live separately and apart on a permanent basis.
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 is within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met.
Therefore and with regard to the definition of spouse in s.5F, at the time of application the parties did have a genuine intention to live together as spouses, and therefore cl.300.216 is met.
Do the parties continue to meet time of application requirements?
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 the 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 find that the visa applicant at the time of application intended to marry the review applicant, an Australian citizen, per cl 200.211 of the regulations. At the time of application the parties also had a genuine intention to marry and satisfy the requirements of cl.300.215(a). The proposed date for the marriage is within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 were met.

I further find that the visa applicant at the time of this decision still intends to marry the review applicant, an Australian citizen, from his corroborated evidence that this is his desire. From the evidence it is shown that the parties have indeed met and know each other personally. The parties have given strong evidence that the parties remain willing still to marry during the visa period, indeed as soon as possible. I am satisfied that the parties continue to genuinely intend to live together as spouses, as per cl.300.216, at the time of this decision.
Accordingly, cl.300.221 is met.
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 of Schedule 2 to the Regulations
·cl.300.214 of Schedule 2 to the Regulations
·cl.300.215 of Schedule 2 to the Regulations
·cl.300.216 of Schedule 2 to the Regulations
·cl.300.221 of Schedule 2 to the Regulations
Justin Meyer
Member

[2022] AATA 3348

26 August 2022

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