Farah (Migration)

[2024] AATA 4039

Farah (Migration) [2024] AATA 4039 (9 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hanan Mohamed Farah

VISA APPLICANT:  Mr Hasan Abdulahi Sulaiman Esmail

REPRESENTATIVE:  Mrs Amanda Kirkpatrick (MARN: 0429985)

CASE NUMBER:  2013243

HOME AFFAIRS REFERENCE:               BCC2019/3063064

MEMBER:Glynis Bartley

DATE:9 October 2024

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

Statement made on 9 October 2024 at 1:22pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – subclass 300– visa applicant intended to marry the review applicant, who is an Australian citizen – parties maintained regular contact and presented to their friends and families as being in a committed relationship – parties genuinely intended to live together as spouses – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.15, Schedule 2, cls 300.211, 300.214, 300.215, 300.216,300. 221

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this review is whether the visa applicant, Mr Hasan Abdulahi Sulaiman Esmail, and the review applicant, Ms Hanan Mohamed Farah, genuinely intend to marry and live together as spouses, both at the time of the visa application and at the time of this decision.

   APPLICATION FOR REVIEW

2. 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).

3. The visa applicant applied for the visa on 17 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. Relevantly to this matter, the primary criteria include whether the visa applicant and review applicant (the parties) intend to marry and live together as spouses at the time of application and at the time of this decision.

4. The delegate refused to grant the visa on 2 July 2020 on the basis that the visa applicant did not satisfy cl.300.216 and cl.300.221 of Schedule 2 to the Regulations. The delegate was not satisfied that the parties genuinely intend to marry and live together as spouses, as defined in s 5F of the Act.

5. The review applicant applied to the Tribunal for review of the delegate’s decision on 26 August 2020.

6. The review applicant appeared before the Tribunal on 25 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from a mutual friend; Mr Ahmed Mohamed Farah, and by telephone from the visa applicant. The review applicant’s children attended but did not give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic language. A brief second hearing was conducted by telephone on 9 October 2024. The review applicant’s representative attended and provided oral submissions.

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

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

   BACKGROUND

9. The review applicant is a 56-year-old Australian citizen by grant. She was born in Somalia and migrated to Australia on a Partner visa in 2008 after being sponsored by her former husband. The review applicant has declared one previous marriage that ended in divorce. She has two children from that relationship; an 18-year-old son and a 15-year-old daughter, both of whom live with her. The review applicant’s son has autism, receives a disability support pension and is a participant of the National Disability Insurance Scheme (NDIS). The review applicant’s parents are deceased, and she does not have siblings. She receives a carer payment and carer allowance from Centrelink in recognition of the care she provides to her son. The review applicant is not in the paid workforce.

10. The visa applicant is a 58-year-old citizen of Yemen who lives in the United Arab Emirates (UAE). He has not declared any previous marriages or de facto relationships and does not have any children. The visa applicant’s parents are deceased. He has two brothers and a sister who live in Yemen. The visa applicant is currently unemployed and until recently worked as a driver.

11. The review applicant and the visa applicant (the parties) stated in the application that they were introduced by a mutual friend in late 2012 and formed a romantic relationship within a few months. They were married in a religious ceremony by proxy in Australia in August 2013 and later married again in a religious ceremony in December 2015 in Indonesia. The visa applicant has lodged two previous applications for visas to migrate to Australia on the basis of his relationship with the review applicant, both of which were refused by the Department. The review applicant sought review of one of the decisions and a differently constituted Tribunal affirmed the decision to refuse the visa applicant’s Subclass 300 visa on 10 March 2016 on the basis that the parties had not yet met in person when the application was lodged.

12. On 7 May 2016, the parties registered their Indonesian religious marriage in Somalia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Prior to the hearing, the review applicant’s representative provided additional information to the Tribunal including but not limited to the following: submissions by the review applicant’s representative, statutory declarations by the review applicant and two witnesses, a statement by the visa applicant, a Notice of Intention to Marry, dated 30 May 2023, money transfer receipts and communication records,

14. In making my decision, I have had regard to the documents in the Department and Tribunal files, the oral evidence from the parties and witness, and the submissions from the review applicant’s representative.

15. I had the benefit of receiving more evidence than was available to the delegate, including oral evidence in person from the review applicant and a witness. I am mindful that it has been more than five years since the visa applicant applied for the visa and more than four years since the review applicant lodged the application to the Tribunal. There is compelling evidence that the parties have maintained regular contact during the intervening years, including during the COVID-19 pandemic.

16. The parties gave their oral evidence in an open and straightforward manner, although the telephone connection to the visa applicant was particularly poor. The parties gave a generally consistent account of the inception and development of their relationship, their families, finances and the frequency of their communication. Although there was one discrepancy regarding whether the visa applicant’s sister is living in Yemen or Canada, I placed limited weight on that in the context of the evidence as a whole. I accepted that the visa applicant may have been confused about the Tribunal’s questioning about his siblings, particularly given the poor telephone connection. The review applicant presented as honest and sincere. Mr Farah responded to questions in a direct and forthright manner. He clearly explained his connection to both parties and said that he was involved in introducing them, although he conceded that he has not spent time with them together. I considered that both the review applicant and Mr Farah were reliable witnesses and I therefore placed weight on their oral evidence. While it was more difficult to assess the visa applicant’s oral evidence, I am satisfied that he responded as best he could in the circumstances. I had no reason to doubt the visa applicant’s sincerity.

17. Apart from communication records, there is limited documentary evidence to support the parties’ claims. This is almost certainly related to their lack of face-to-face contact since 2017. The review applicant’s lack of travel to visit and spend time with the visa applicant over such an extended period was the most troubling aspect of the evidence. The parties explained that this is due to their limited financial resources, the review applicant’s inability to travel overseas without taking her children with her, the border closures due to the COVID-19 pandemic, the increased costs of travel since the borders have reopened, and the cost of living crisis in both Australia and the UAE. The review applicant became visibly distressed when discussing the parties’ lengthy physical separation. I accepted that the visa applicant would likely not be granted a Visitor visa to travel to Australia, had he applied for one. Furthermore, he has limited financial means as his work in the UAE is intermittent and poorly paid. The review applicant is not in the paid workforce because her eldest child has profound disabilities, and she is his primary carer. She has very limited savings and must purchase three airfares rather than one whenever she travels overseas. The review applicant has no family in Australia to provide care and support to her children during overseas trips. Given these circumstances, the parties’ explanation regarding their lack of face-to-face contact since 2017 was convincing.

18. I accepted that the parties were introduced by mutual friends in November 2012 and began communicating in December 2012. They formed a relationship over the following months and married in a religious ceremony by proxy in Australia in August 2013. It is uncontested that the parties’ marriage was not registered in accordance with Australian law and that the review applicant was not yet divorced from her first husband. The parties first met in person in December 2015 in Indonesia and married for a second time in a religious ceremony. Although the Indonesian marriage was not registered with the relevant authorities in Indonesia, according to the documents provided to the Tribunal it was registered in Somalia on 7 May 2016. The review applicant travelled to the UAE in December 2016 and the parties spent around six weeks together there. The review applicant returned to Australia on 30 January 2017 and has not departed since then.

    Relevant law

19. Clause 300.221 of Schedule 2 to the Regulations requires that, at the time of decision, the visa applicant continues to satisfy the criteria in clauses 300.211, 300.214, 300.215 and 300.216. Those criteria require that, at the time the visa application was lodged, 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.

    Are the parties validly married?

20. The delegate did not refer to the registration of the parties’ Indonesian marriage in Somalia on 7 May 2016 and it appears that the review applicant did not provide a copy of the marriage certificate to the Department. The review applicant did submit a copy of the divorce order from her first husband to the Department, dated 3 October 2017. The divorce took effect from 4 November 2017.

21. The review applicant’s representative submitted at the second hearing that the registration of the parties’ marriage in Somalia is not valid because there are no verifiable Somali identity documents. The representative said documents created in Somalia, such as marriage certificates, cannot be relied upon.

22. I accepted those submissions. I am also satisfied that the review applicant was still lawfully married to the father of her children when the parties registered their marriage in Somalia. Consequently, I find that the parties’ marriage in Somalia is void (s 23B Marriage Act 1961 (Cth)).

    Does the visa applicant intend to marry an eligible person?

23. 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 review applicant provided a copy of her passport to the Department at the time of application. Her representative submitted a copy of the review applicant’s Australian citizenship certificate to the Tribunal prior to the hearing. I find that the review applicant is an Australian citizen.

24. The review applicant gave oral evidence at the hearing that she contacted the Sheikh and set a date for the wedding for 30 June 2025 because she is unsure when the visa applicant may be eligible to travel given the extensive delays to date. The review applicant said the Sheikh asked her to contact him as soon as the visa applicant arrives in Australia so they can make the necessary arrangements for the ceremony. The visa applicant confirmed that the parties will marry as soon as he comes to Australia. I am satisfied that the parties’ oral evidence about that matter was sincere.

25. I find that at the time of application the visa applicant intended to marry the review applicant, who 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?

26. 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.

27. The parties gave a consistent account of meeting in person in Indonesia in December 2015. They provided photographs to the Department of themselves together with the review applicant’s children in Indonesia in December 2015/January 2016 and in in the UAE in December 2016/January 2017. I accepted that the parties first met in person on 17 December 2015.

28. Copies of their passports provided to the Department confirm that both parties were over the age of 18 years when they first met. There is no dispute and I find that the parties are known to each other personally. Therefore, at the time of application, the requirements of cl.300.214 are 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.

30. The review applicant gave convincing oral evidence that she and the visa applicant intend to marry in Australia as soon as possible after the visa applicant arrives. The parties had no option but to defer their previous plans for the marriage after the Department refused the application.

31. The parties provided similar evidence regarding the frequency of their contact, which was supported by the communication records provided. I accepted that they speak almost every day. The parties expressed a desire to support one another and spend the rest of their lives together. They presented as being genuinely committed to the relationship. The review applicant gave oral evidence that her children do not have any contact with their biological father, and she wants a father figure in their lives. The visa applicant said he is committed to assisting the review applicant to raise her children. He demonstrated an awareness of the review applicant’s son’s disability and had some understanding of his care needs and the support he is currently receiving from the NDIS.

32. The review applicant travelled to Indonesia in 2015 to meet and spend time with the visa applicant. She also travelled to the UAE in December 2016 to spend time with the visa applicant. She took her children on both trips because there is no one in Australia who can care for them while she is away. In particular, the review applicant cannot leave her son with other people because of his high care needs. I accepted that the visa applicant has spent time with the review applicant’s children and formed a close bond with them.

33. The parties provided evidence of money transfer receipts. They gave consistent evidence that the review applicant has been sending money to the visa applicant over the past few months because he is between contracts, although the amounts are modest because her only source of income is derived from Centrelink. Those funds were to assist with the visa applicant’s rent and day-to-day living expenses. Previously when he was working, the visa applicant intermittently sent money to the review applicant for gifts and to help reduce financial stress. The review applicant has no family in Australia to provide financial assistance.

34. I am satisfied that at the time of application the parties had a genuine intention to marry. The requirements of cl.300.215(a) are therefore met. The proposed date for the marriage (shortly after the visa applicant arrives in Australia) is within the visa period as required by cl.300.215(b). Accordingly, the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together?

35. 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 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.

36. 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.

37. I am satisfied on the basis of the evidence before me that at the time of application the visa applicant had transferred some money to the review applicant to assist her to meet her daily living expenses and for discretionary spending. While the sums are modest, this is consistent with their financial resources. The parties shared their expenses during their brief periods of cohabitation in Indonesia and the UAE. They have discussed their financial future together, including for the visa applicant to find employment in Australia and contribute to the rent and other household expenses of the family. The parties intend to pool their financial resources and share day-to-day household expenses once the visa applicant arrives.

38. I am satisfied that at the time of application the parties maintained regular contact and presented to their friends and families as being in a committed relationship. The visa applicant has told his siblings about the parties’ relationship and the review applicant has disclosed the relationship to her friends and others in the local Somali community.

39. At the time of application, the parties had travelled to Indonesia together. They had also spent time in the UAE. The parties stayed in hotels and villas because the review applicant travelled with her two children, and they required sufficient space for their family of four. The visa applicant lives in shared accommodation in Abu Dhabi, and it is unsuitable for the parties to stay there together with the review applicant’s children because there is a lack of space and privacy.

1. The parties have not yet held a formal celebration of their engagement but intend to celebrate their marriage with friends in the Somali community in Australia.

2. A mutual friend, Mr Farah, gave oral evidence at the hearing. Although he has not spent time with the parties together, he has regular contact with both the review applicant and the visa applicant. He described the parties’ genuine love and affection for one another, and their long-term commitment to the relationship over a period of more than ten years.

3. A statutory declaration by Mr Hasan Abdi Ahmed, dated 1 June 2023, was submitted to the Tribunal to support the application. Mr Ahmed said that he has known the visa applicant for more than 20 years since 2003 and the review applicant for 16 years since 2008. Mr Ahmed said he is a mutual friend and is aware that the parties speak to each other on a daily basis. The visa applicant talks to Mr Ahmed about the review applicant during telephone calls and the visa applicant describes how the review applicant is nice and good and how he is waiting to be with her. The visa applicant is very happy when Mr Ahmed can tell him that the review applicant is doing well. The review applicant also tells Mr Ahmed how the visa applicant is doing and how hard the work is for him in Abu Dhabi. The review applicant tells Mr Ahmed how much she needs the visa applicant to be here. Mr Ahmed said: “…[t]hey are husband and wife and they love and care for each other and how each other is doing. It will be very good when Hasan comes here to live with his wife and [her children]…”

4. Mr Farah also provided a statutory declaration, dated 7 June 2023. He said the review applicant speaks to him regularly about how the parties are in regular contact and how they are getting tired of waiting for the visa. Mr Farah said:

   “…I can see their relationship is getting stronger…It has been hard for them waiting all these years. Hasan is waiting to see his wife and for them to live a good life together looking after the children and being a family and building a good life. He has told me this on the phone. Hanan is also waiting for her husband to come and is feeling a bit sad that she is not a full family with Hasan here….”

5. I am mindful that the witnesses have not spent time with the parties together. Nevertheless, I considered their evidence was sincere, and it was consistent with the other evidence before me. The parties spent time in Indonesia with some of the review applicant’s Australian friends. I accepted that the parties’ relationship is socially recognised and supported by their friends.

6. The parties gave a similar account of their intention to establish in a joint household in Australia. The review applicant currently shares a bedroom with her daughter, so the parties will move to a larger unit so the children can have their own bedrooms. I am satisfied that the parties’ evidence regarding the establishment of a joint household in Australia reflects their intention at the time of application.

7. I accepted that the parties have been in a committed relationship for more than 11 years. The review applicant told me that the visa applicant is very different from her former partner, and he enjoys being at home and spending time with her and her children rather than going out all of the time. The parties discuss their problems, including the children’s behaviour, and come up with solutions together. There was convincing evidence that the parties have had meaningful conversations about their plans for their future in Australia.

8. I accepted that the parties have lived together for a total period of around 13 weeks. During their time together in Indonesia and Abu Dhabi, the parties stayed in hotels or serviced apartments and there was therefore no need to attend to household chores such as cleaning and gardening. However, they shared tasks such as shopping and cooking as there were kitchen facilities available. The review applicant also washed the parties’ clothes during the periods of cohabitation.

9. This is the visa applicant’s third application to migrate to Australia and the review applicant’s second application to the Tribunal. I am satisfied that the parties have provided comfort and support to one another during the lengthy visa process. The visa applicant supported the review applicant when her daughter required hip surgery four years ago by maintaining close contact and offering psychological comfort and encouragement. He assists the review applicant to manage her son’s behaviours by offering advice and emotional support.

10. The parties have maintained their commitment to the relationship despite the lack of face-to-face contact. They have attempted to overcome various hurdles, including payment of numerous visa application fees. The visa applicant has committed himself to being a step-father to the review applicant’s two children. I put substantial weight on the length of the parties’ relationship to date.

11. The parties gave a consistent account of their future life together. The visa applicant plans to learn English and find work as soon as possible after he arrives in Australia. The review applicant hopes to complete her accountancy studies and find work in that field. The parties intend to move to larger accommodation and socialise with others in the local Somali community. The parties hope to eventually save enough money so they can purchase a home together.

12. After considering all of the evidence, I am satisfied that the parties do genuinely intend to live together as spouses. I am satisfied that the parties’ relationship is genuine and continuing and they have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The parties intend to initially live together in the review applicant’s two-bedroom rented accommodation in Western Sydney, but they will look for something bigger as soon as practicable.

13. On the basis of the above, I am satisfied that at the time of the visa application the parties genuinely intended to live together as spouses. Therefore cl.300.216 is met.

    Do the parties continue to meet time of application requirements?

14. 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.

15. The parties demonstrated some knowledge about each other’s income at the hearing. The review applicant was aware of the visa applicant’s work history and that he is currently between contracts. The visa applicant had a general understanding of the review applicant’s Centrelink income and that she receives a carer payment because of her son’s disability.  The parties were aware of each other’s families, although as discussed above there was a discrepancy in the evidence regarding where the visa applicant’s sister is currently living. The visa applicant was reasonably familiar with the review applicant’s son’s disability and his day-to-day care needs.

16. I accepted that the parties’ relationship has been disclosed to their families and friends, including the visa applicant’s siblings. Mr Farah gave persuasive oral evidence that members of the local Somali community are aware that the review applicant and the visa applicant are in a committed partner relationship.

17. After having regard to the oral evidence at the hearing, the parties’ regular contact and their consistent plans for the future, I am satisfied that at the time of this decision the visa applicant intends to marry the review applicant, who is an Australian citizen, the parties have met and are known to each other personally, and they genuinely intend to marry.

18. Furthermore, I am satisfied that the marriage is intended to take place within the visa period and therefore the visa applicant continues to meet cl.300.215(b) at the time of decision. I am also satisfied that the parties genuinely intend to live together as spouses. Accordingly, cl.300.221 is met.

    Overall conclusion

19. 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

20. 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

    Glynis Bartley
    Member