Elia (Migration)

[2018] AATA 5677

Elia (Migration) [2018] AATA 5677 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Media Elia

VISA APPLICANT:  Mr Mina Samir Gaber MOSAAD

CASE NUMBER:  1730140

DIBP REFERENCE(S):  OSF2017015436

MEMBER:Meena Sripathy

DATE:14 December 2018

PLACE OF DECISION:  Sydney

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.300.215 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 14 December 2018 at 3:31pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – regular and constant communication – spent little time face to face – reasonable knowledge of each other’s backgrounds and circumstances – made plans for the future – family supportive of relationship – credible witnesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.211, 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 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 10 June 2017. 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). Relevantly to this matter the primary criteria include cl.300.216 and cl.300.221.

3. The delegate refused to grant the visa on 27 November 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 applicant and sponsor genuinely intend to live together as spouses at time of application or decision.

4. The review applicant appeared before the Tribunal on 14 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Assyrian, Arabic and English languages. The Tribunal found the review applicant to be candid and sincere in her responses to the Tribunal’s questioning and it considers her to be an honest and credible witness. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa applicant is a 31 year old man who resides in Cairo, Egypt and is of Egyptian nationality. He has parents and three sisters in Egypt.  He is sponsored by the review applicant who is 33 years old, an Australian citizen by grant, and born in Iraq.  The parties indicate they became engaged on 18 April 2017 in Cairo, having met in person for the first time on 11 April 2017, and (at time of application) intended to marry on 26 May 2018.  The sponsor has parents, 2 brothers and 1 sister who all reside in Australia.  The sponsor has previously sponsored a prospective marriage partner in August 2010, but the relationship ended and the Prospective Marriage application was refused.  Reference is made in the application form to an attached statement for details about circumstances of the relationship, however no statement appears on the Department file, only photos of the applicant and sponsor, purportedly at their engagement and a single registration certificate. 

7. The visa applicant was interviewed by an officer at the Australian Embassy in Cairo on 9 August 2017.  Notes of the interview are included in the Department file. The following information was provided during the interview: The visa applicant travelled to Jordon in July 2015 and stayed for 7 months, working on a farm, and returned to Egypt in February 2016.  He applied for a visitor visa in October 2016 to visit the review applicant but it was refused.  The visa applicant and review applicant met via Facebook in November 2015, first through a religious page and he sent her a friend request.  They started to talk and a relationship developed within a month and a half. After 2-3 months, in early 2016, they decided to marry.  The visa applicant has never been married or engaged before. He said he knew that the sponsor was previously engaged to an Iraqi man, but the relationship ended.  She sponsored him for a Subclass 300 visa but it was refused. He later came to Australia through his brother but the review applicant said they are not in contact. The sponsor came to Egypt and they met at the airport on 11 April 2017.  She stayed at his family’s house for the entire 14 days of her stay. They were engaged in a small ceremony before a priest and had a celebration with his parents and sister on a boat on the Nile, no one else attended. The review applicant was asked why other people did not come for the engagement, he explained that he was concerned for the sponsor and did not want others to know she had come to be engaged in a foreign country. The visa applicant was asked why other members of his family did not attend the engagement.  He said his sister has three naughty children and would make a mess.  He stated that his elder sister met the sponsor and they went to his sister’s place at Easter.  The review applicant was asked about the priest who prayed for them and he confirmed that it was not his confession father. He stated that he was talked to the sponsor’s parents over the internet and they love him.  Her parents and siblings were unavailable to come to Egypt due to ill health and a new baby. He was asked if she had any other plans to come and visit, and he said if the application took a long time she will come but nothing was scheduled as yet. They decided to marry in Australia because it will be more acceptable for her to marry an Egyptian man there than in his country. The review applicant stated that after Easter they went to a park where his aunts, cousins their children and his sister and her husband all met the sponsor. He referred to having photos of this event but did not have them with him.  The review applicant was asked about his knowledge of the sponsor and said she doesn’t have friends, she works as a dental nurse for a dentist named Sam and has worked there since she migrated to Australia 10 years ago.  Her work is 10-15 minutes by car, she works for $25 per hour and works 20 hours a fortnight. She goes to the gym, takes breakfast and tea and likes shopping. He was asked about his knowledge of her education and migration background.  He demonstrated knowledge of her family members in Australia.  He was asked about plans for the marriage and future. She paid for the application, but has not sent him money.  He is working in Egypt.  He intends to work in Australia, neither of them care about financial issues. 

8. The delegate refused the applicant on the basis of not being satisfied that the parties genuinely intended to live together as husband and wife.   

9. On 2 October and 12 December 2018, the review applicant provided submissions and further evidence to the Tribunal in support of the application. The submission addresses the delegate’s reasons for decision and submits further evidence addressing the r.1.15A(3) considerations and includes a Statutory Declaration from the review applicant. The submission refers to:

   a.Evidence of financial transfers made between the parties in October 2017 and January, March, May and July 2018.

   b.In response to concerns by the delegate about  the minimal evidence of communication, it is submitted that due to the cultural/religious background of the parties, they were restricted in the kind of interactions they could have prior to their engagement.  When she went to Egypt in April 2017, she stayed with the visa applicant and the photographs submitted evidence their cohabitation in this period.

   c.The parties have communicated the existence of their relationship to their respective close family members who all support it, and refers to statements from the review applicant’s parents and letters from her GP and psychologist referring to the relationship.

   d.Statement from Rev. Joseph Joseph of the Ancient Church of the East confirming that the parties intend to marry on 8 June 2019 at St Zaia Cathedral before him and attaching a completed NOIM to that effect. 

10. At the hearing the applicant provided the following evidence.  She lives in Mascot with family friends who have two children, and has been living here for the past 7-8 years. Her parents live separately in Kingsford in Department of Housing accommodation. She has 2 brothers and one sister who are all married and live separately.  One brother has 2 children, one has no children, and her sister has a baby born 5 months ago.  The applicant works as a dental nurse assistant.  She has worked for the same dentist for the past 10 years.  She works 20 hours a fortnight, and looks after her mother the rest of the time. The visa applicant lives in Cairo, Egypt with his parents and younger sister.  He has two other sisters, both married, one lives in Cairo and the other in Dubai.  The sister in Cairo has three daughters.  The applicant has met the visa applicant’s family in Cairo during her visit there.  He works, having recently obtained a new job as a tattoo professional.  He only works casually when they call him.  Before that he had a clothing factory but it closed due to poor business. He has no particular skills or qualifications.  He has done all kinds of work in the past.

11. The Tribunal asked about her previous relationship. She said she was engaged to marry and he lodged a Prospective Marriage visa but it was refused but the relationship ceased anyway so she was relieved it was refused.  When asked to clarify if the relationship ceased before the application was refused or the other way around, she said that before it was refused she came to realise that they were not well matched and she did not want to proceed. When asked why it did not work out, she said she discovered he liked to drink alcohol and she did not like that.  The Tribunal asked if she had further contact or knows where he is now. She said she had no further contact but heard from others than he is in Australia.  The applicant told the visa applicant about this relationship.  The visa applicant has not had any previous marriages or engagements. That is one of the things she liked about him.  She also told him the reason she ended the previous relationship.

12. The Tribunal asked the applicant about the inception and development of the relationship.  She said they met on Facebook, he made a friend request and she accepted it because she liked his profile and photo.  They started chatting and got to know one another that way. She explained that in the beginning it wasn’t very deep conversations because of cultural reasons, but as she came to develop trust in him the relationship became more serious and they started video chatting and talking.  She liked him and trusted him because he was a religious person and she liked his values.  She said she hadn’t met a man like him before and was very happy.  She told her mother about him soon after and her mother was happy for her because she was so happy.  Her mother told her father. 

13. In 2016, he tried to make a visit to Australia to meet her, but the application was refused.   He has no relatives in Australia, he only sought to visit to see her.  After that was refused she decided to take the step of going to meet him and so she went in April.  Her parents were supportive of the trip. They had been speaking for a while by then and had discussed a marriage relationship. Their parents had met and spoken to each other over the internet.  Her sister had also spoken with him.  Her family gave her blessing to go and meet him. When she arrived his family were very warm and welcoming of her. 

14. The Tribunal asked why she stayed for such a short time in Egypt.  She said she could not leave her mother for long and also had work commitments. After they met, the visa applicant asked for her hand in marriage and his family spoke with her family.  They all agreed and an engagement ceremony was held.  His parents and sister attended, but the older sister did not.  When asked why not the applicant said she was initially not that happy because she had a plan for the visa applicant to marry a relative of her husband.  But after meeting the applicant she warmed to her and they have a good relationship.  After she returned they started making all the plans for the wedding and she was so happy.  They remained in contact and have been in daily contact ever since then.

15. The Tribunal asked why she has not visited again given the time that has passed. She said since then there have been many problems in Egypt and she is a bit worried about going there. When asked why she was not worried about that when she went the first time, she said she had to take that step and so she did but she did not stay long, partly because of her mother’s needs and partly because of security concerns.

16. The Tribunal asked the applicant what she and the visa applicant plan for the future. She said they plan to marry in June 2019, and for him to find a job. They will live together and start their lives together. Regarding living arrangements, she plans for him to stay with her but in a separate room at first.  When asked if she has told the family she lives with about him she said she has not until recently when she mentioned it to the wife.  She explained that because of their culture it is not easy for her to discuss it until he is going to come.  Until now it is only the close family members that know about the relationship.

17. Regarding financial aspects, the applicant said she has supported him by sending money now and she will help him find a job when he comes.  She will continue to work also.  He supports her to continue to work.

18. The Tribunal asked the applicant about what they discuss in their daily contact. She said they share about all details of their day.  She has told him about her feelings and how she has felt bad and cannot sleep and has been seeing a psychologist and is on medication. He is supportive of her and told her he is also very stressed about it. 

19. The Tribunal discussed with the applicant its concerns, given the short period they have been together and her failure to visit again, that may suggest they are not committed to getting married. She said she would never have appealed this far, and remained in such daily contact with him if it is not genuine.  She knows so much about him and loves him so much.  When asked to elaborate about what she likes about him she referred to the fact that he doesn’t drink, he is religious and kind and respectful of her.  They both feel very suited to each other.

20. The Tribunal spoke to the visa applicant by telephone.  He gave consistent evidence about his living arrangements, work and family background.  His evidence about the inception of the relationship was also consistent.  He referred to finding her on a religious page and being impressed with her comments.  He then looked at her profile and requested to be her friend. 

21. He told his parents about her soon after meeting her on Facebook and they were happy because his mother trusts his judgement. His mother spoke with her and she also liked her manners. Their parents have communicated with each other and the families are supportive of the relationship. He gave a consistent account for why his sister did not attend the engagement. 

22. The Tribunal asked the visa applicant why they have not tried to see each other again since the first visit.  He responded that the relationship will be forever because they love each other and he cannot imagine being with another person. They have remained in daily contact and share everything with each other.

23. The Tribunal asked the visa applicant what they have discussed about the future. His responses were substantially consistent with the applicant.  He demonstrated knowledge about the applicant’s family and circumstances in Australia, including about the new born baby in the family. He said he has spoke many times with her parents and they get on well. He was familiar with her health issues and he shared with her his concerns about financial situation.  She sent him money to support him. 

24. The Tribunal asked the visa applicant if he attends Church and whether he has had any problems in this context. He said he attends Church weekly and has not experienced any problems.

25. The Tribunal took brief oral evidence from the applicant’s father and mother. They each expressed their knowledge of and support for the relationship between the applicant and visa applicant.  They confirmed that they knew they met on the internet and supported the applicant visiting him in Egypt. They are every happy for the applicant because she is so happy and it is important for her to marry at this age.  They confirmed they have spoken to the visa applicant and to his parents and support the relationship.  They believe it is genuine because they speak with each other daily and are so happy together.    

    CONSIDERATION

26. The issue in the present case is whether the parties genuinely intend to marry and continue to meet the time of application criteria at time of decision.

    Does the visa applicant intend to marry an eligible person?

27. 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. On the available evidence the Tribunal accepts the applicant, who the visa applicant intends to marry, is an Australian citizen. Accordingly, the requirements of cl.300.211 are met.

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

28. 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.  The Tribunal accepts that the applicant travelled to Egypt in April 2018 and met the visa applicant and they are therefore known to each other personally. Therefore, at the time of application, the requirements of cl.300.214 were met.

    Do the parties genuinely intend to marry?

29. 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.  At the time of application the parties had a genuine intention to marry in May 2018 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.  Since then, this date has passed. Before the Tribunal the applicant has provided evidence of a new date for the proposed marriage, 8 June 2019, and a letter from the priest who proposes to conduct the ceremony.  The Tribunal accepts that the applicant continues to meet cl. 300.215 at time of decision.

    Do the parties genuinely intend to live together at time of application and time of decision?

30. 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.

1. 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.

2. 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. The Tribunal accepts that the applicant and visa applicant have been in regular and constant communication by video and chat applications since they last met in person in April 2017 and committed to a long term relationship. It accepts, on the basis of their oral evidence and submissions provided to the Tribunal, that they each demonstrated a reasonable knowledge of each other’s relationship backgrounds, family, work and living circumstances.  It accepts that they have discussed living arrangements when the visa applicant comes to Australia, and have made plans for the future including relating to where they would live, finding employment and getting married and starting a family. 

3. The Tribunal notes that the applicants have spent relatively little time face to face in the same place since their relationship began and initially had a concern that this may suggest they are not committed to the relationship. However, having discussed this issue and concern with them at the hearing and having considered their evidence, the Tribunal accepts that despite only having spent 2 weeks together in the same country, they have maintained regular communication via the internet throughout the period of their relationship. It also accepts given their financial circumstances, the applicant’s work and care commitments, and the uncertainty of the delay involved in resolving the application, their failure to have met or attempted to meet has been reasonably explained and does not necessarily detract from their commitment to each other and the relationship.  It accepts that the applicant has provided financial support to the visa applicant, and that they share with each other their problems and daily issues consistent with a genuine relationship.  The Tribunal has also taken into consideration and given significant weight to the family support of the relationship and the significance, in the applicant’s culture, to the relationship continuing and the marriage taking place. 

4. The Tribunal observes that it initially considered the manner in which the applicants’ relationship was initiated and developed seemed unusual in light of their cultural backgrounds.  However, it also acknowledges that it is not that unusual given the social media, globalised context of modern times.  In this case it apparent that the applicants found themselves sharing common religious, cultural and language traditions, are of a similar age, and have developed and sustained a long distance relationship over a substantial period and the Tribunal gives all of these matters due weight in its consideration of the issues before it. 

5. On the basis of the above the Tribunal is satisfied that at the time of the visa application, and continuing to the time of decision, the parties genuinely intended to live together as spouses, and therefore cl.300.216 is met.  

   Do the parties continue to meet time of application requirements?

6. 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 indicated above the Tribunal is satisfied that they continue at time of decision, to genuinely intend to marry and live together as spouses, and accordingly, cl.300.221 is also met.

7. 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

8. 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.300.215 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.

   Meena Sripathy
   Member