Hachem (Migration)

[2024] AATA 472

Hachem (Migration) [2024] AATA 472 (12 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jana Hachem

VISA APPLICANT:  Mr Hassan Siblini

REPRESENTATIVE:  Mr Michael John Mark Lee

CASE NUMBER:  2310934

HOME AFFAIRS REFERENCE(S):          BCC2021/2081603

MEMBER:Anne Grant

DATE:12 January 2024

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:

·clauses 300.211, 300.212A, 300.212, 300.213, 300.214, 300.215 and 300.216 of Schedule 2 to the Regulations; and

·cl 300.221 of Schedule 2 to the Regulations

Statement made on 12 January 2024 at 9:55am

CATCHWORDS
MIGRATION –Prospective Marriage (Temporary) (Class TO) visa – subclass 300– parties had a Nikkah ceremony – Tribunal accepts that the parties continue to genuinely intend to be married – financially support one another as much as is possible – intend to combine and pool their financial resources when they marry – parties consider their relationship as long term – parties have a mutual commitment to a shared life as spouses – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.15, Schedule 2, cls 300.211,300.212, 300.213, 300.214, 300.215, 300.216,300. 221, 300.312

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 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).

2. The visa applicant applied for the visa on 1 November 2021. 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 includes clause 300.211 which provides that the applicant intends to marry a person who is an Australian citizen, permanent resident or eligible New Zealand Citizen, clause 300.215 which provides that an applicant establishes that they genuinely intend to marry and the marriage is intended to take place within the visa period, and clause 300.216, which provides that the parties genuinely intend to live together as spouses.

3. The application was made on the basis that the visa applicant intended to marry the review applicant – ‘the sponsor’, who is an Australian citizen. 

4. The delegate refused to grant the visa on 18 June 2023 on the basis that they were not satisfied that the applicant genuinely intended to marry the sponsor and live together as spouses.  

5. The applicant asked for and was granted priority in the consideration of this review.  When the Tribunal was ready to list the matter, a request was received from the applicant’s representative that the matter not be listed until late February 2024.  The applicant later contacted the Tribunal and stated that she did not wish for the hearing to be delayed as requested by her representative. I considered all of the material that had been submitted by the applicant both to the Department and to the Tribunal and on 5 January 2023 I wrote to the applicant seeking clarification of the date of the Nikkah ceremony and how it was conducted.  On 11 January 2023, the applicant provided clarification and further evidence about the ceremony.   I decided that a hearing was not necessary and that I could make a favourable decision on the papers.  I have given this review some priority.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant intends to marry the sponsor and genuinely intends to live with her as her spouse. 

   Cl 300.211 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. At the time of application, the visa applicant stated that he intended to marry the sponsor. Accordingly, the requirements of cl 300.211 are met. The sponsor is an eligible person, because she is a citizen of Australia. 

   Cl 300.212A

9. The visa applicant has turned eighteen years of age.  At the time of application, he was 28 years old.  He satisfies cl 300.212A. 

   Cl 300.212

10. There is no suggestion in this case that the sponsor is prohibited from being a sponsor as described in cl 300.212. This clause does not apply.

    Cl 300.213

11. The visa applicant is sponsored by his prospective spouse, who was aged 19 at the time of application.  Cl 300.213 is satisfied.

    Cl 300.214

12. Significant evidence has been provided demonstrating that the visa applicant and sponsor have met in person on a number of occasions and are known to each other personally. Like the delegate, I accept that they had met and were known to each other personally at the time of application. This clause is satisfied. 

    Cl 300.215:  Do the parties genuinely intend to marry and if so, is the marriage intended by the parties to take place within the visa period?

13. I have noted departmental policy which provides:

    Paragraph 300.215(b) requires that the marriage be intended to take place within the visa period.

    To meet this requirement, it is reasonable to suggest that the date (or the date range) of the marriage ceremony indicated in the celebrant's letter come within 9 to 15 months of the expected date of visa grant. The global visa processing times should be taken into consideration when assessing whether the marriage will take place within the visa period.

    Note: Delegates should be mindful that the 9 to 15 month period may not begin until well over a year after visa application. It may be unreasonable to expect the parties to a marriage to engage a celebrant that far in advance, particularly as the NOIM is valid for a maximum period of 18 months.

    It is critical that the couple plan to marry within the 9 to 15 month period of the visa - see section 3.8.2. The Subclass 300 visa period. If the date does not fall within the visa grant period, paragraph 300.215(b) (time of application criteria) and clause 300.221 (time of decision criteria) cannot be satisfied.

14. In their application, (lodged on 1 November 2021) the parties stated that they intend to marry in Australia.  At that time, they provided evidence showing that they would marry on 20 October 2022, which was a date reasonably considered to be within the 9-15 month period after expected grant of the visa.  That date passed without their visa being granted. On 3 November 2023, the applicants submitted a Marriage contract.  This document on its’ face  suggests that it is dated and signed on 2 June 2023, and is signed by the applicant, the sponsor and her father.  However, I had noted that the sponsor was actually in Australia on that date.   On 5 January 2023, I wrote to the sponsor seeking details of the ceremony and when it was actually performed.  On 11 January 2023, the sponsor provided evidence (outlined below in more detail) including a statutory declaration made by the sponsor about the ceremony, statements by persons who attended the ceremony in Australia, photographs taken during the ceremony in Lebanon which show those present there and the sponsor on video and a letter from the Sheikh performing the ceremony.   I am now satisfied that this ceremony was conducted using a video link with the sponsor and her family who were in Australia on 2 June 2023 and that the Marriage Contract was signed by the sponsor on 9 June 2023 when she arrived in Lebanon, and later by her father.   

15. Whilst a Nikkah ceremony is not a registered marriage, it is an important and significant step towards marriage, involving a celebration of their union and recognition of their upcoming marriage by their community.  A Nikkah ceremony signifies a formal intention and agreement  to the faith community of parties’ intention to marry.  I give the parties’ Nikkah ceremony significant weight as indicating that they genuinely intend to marry, and consider that it adds weight to their expressed intention to marry in Australia within the visa period, when granted.  In her declaration dated 5 January 2023 the sponsor confirms that once the visa is granted and the applicant arrives they will hold a marriage ceremony and celebration.

16. I consider that the applicant and sponsor have provided sufficient evidence at time of application (and since then) to establish that they genuinely intend to marry and that their marriage is intended to take place within the visa period.  Cl 300.215 is satisfied.

    Cl 300.216 Do the parties genuinely intend to live together as spouses? 

17. Section 5F describes when a person is the spouse of another person: 

    5F(1)  For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

    (2)  For the purposes of subsection (1), persons are in a married relationship if:

    (a)  they are married to each other under a marriage that is valid for the purposes of this Act; and
    (b)  they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
    (c)  the relationship between them is genuine and continuing; and
    (d)  they:

    (i)  live together; or
    (ii)  do not live separately and apart on a permanent basis.

    (3)  The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist. 

    Note:    Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

18. Regulation 1.15A(3) provides that in assessing whether a spousal relationship exists when considering certain partner visas, a decision maker must have regard to the financial and social aspects of the relationship, the nature of the household, and the nature of the parties commitment to each other.  The delegate in this review had general regard to these aspects, although consideration of them is not prescribed in the case of a subclass 300 visa by regulation 1.15A(3).  It is unreasonable to consider such aspects too critically when the application relates to a future marriage and where the applicant and sponsor are living apart due to their respective domiciles in distant countries.  In making my own assessment of the parties’ intention to marry and to live together as spouses,  I have considered the aspects in regulation 1.15A(3) for general guidance and have assessed the general information and evidence provided by the parties in that context.

19. The parties have provided evidence strongly suggesting that their friends and family consider them to be a couple and recognise their intention to marry.   In the application, they stated that the relationship is well known to their families, relatives and friends.  They provided statements from the sponsor’s mother and aunt confirming that they knew both the applicant and the sponsor and confirming that their relationship is genuine.    They provided photographs of them together and with their friends and families.  Additional information has been provided to the Tribunal, namely:

    ·     Photographs of the parties together at various locations and social events;

    ·     Travel ticket for the sponsor to travel to Lebanon on 8 July 2023 and returning on 1 August 2023;

    ·     Texts between the sponsor and her friends where they frankly discuss meeting her fiancé, make comments about him and how the parties make a great couple and reporting other people’s comments about him.

    ·     Supporting statements from the sponsor’s friend and cousin confirming that they are aware of and support the relationship and that the couple are in a genuine relationship and intending to marry.

    ·     Statutory Declaration of sponsor dated 10 January 2024.  In this declaration the sponsor states that: 

    We have provided the Administrative Appeals Tribunal (AAT) with a Contract Marriage Certificate which states two dates, one being 02/07/2023 and another being 13/ zou el hujja 1444 H (zou el hijja, Islamic calendar) both these dates refer to the date 02/07/23 yet one in Islamic month dates. It is stated in Arabic writing in the Original Contract Marriage Certificate copy that these dates refer to one another.

    Traditionally, the Nikkah is a simple ceremony at which the bride does not require to be physically present as long as she has a witness present at the place on her behalf which she has agreed upon. This ceremony consists of recitation of religious verses and the exchange of vows in front of the witnesses and both parents. Meaning the marriage is approved and the signatures can be done at any time after the ceremony as a proof and evidence
    of the Nikkah and for further legal purposes. I signed the certificate on the 9th day of July 2023 after I visited Lebanon and brought the certificate back to Australia with me for my father to sign.

    Procedurally, our Contract Marriage Certificate was pre-dated to the date of the ceremony was taken place 2 July 2023, my fiance Hassan SIBLINI signed it on the 2nd July 2023 during the Face Time call in front of the witnesses and sheikh, then I signed the certificate on the 9th day of July 2023 the day I arrived to Lebanon, after I left Lebanon l brought the certificate back to Australia with me for my father to sign.

    This ceremony was held at my fiance Hassan SIBLINI's/the groom's home, where close family members attended like his parents, siblings, uncles, with my uncle and aunt, and the Sheikh. I was present with both my parents via FaceTime, we were in Australia at the time. The Sheikh explained the marriage dowry and where to sign on the certificate when I was present in Lebanon.

    As mentioned above, this ceremony was not a formal ceremony as it is a Nikkah which is known to be a simple ceremony. Our original plan was once my fiance Hassan SIBLINI arrives in Australia we will have our formal marriage celebration to legally mark our marriage.

    This Nikkhah was recorded on video as we exchanged our vows while our family members were present, including the witnesses, the Sheikh and my fiance Hassan SIBLINI, while  myself and my parents were on Face Time.

    Please refer to our attached extracted images from the recorded videos as our supportive evidence. 

    ·     Photographs depicting the Nikkah ceremony conducted by video on 2 June 2023. 

    ·     Additional supporting evidence from a great Aunt of the sponsor stating they have observed the Nikkah ceremony and also the relationship between the parties, noting that ‘The ceremony only included close family members because it was via FaceTime, yet we are all very excited to celebrate with them and have a formal celebration when the groom arrives to Australia.’   

    ·     Statement from Kamel Salah, who also witnessed the ‘marriage’ over face time and noting that “The marriage was very simple, we greeted the grooms family then the Sheikh started explaining the step and guided them through the vows, he also explained to the bride the advanced and deferred parts of the dowry, the couples then agreed to the marriage and the sheikh announced them husband and wife.  I saw how happy the couple were and how genuine the love was towards each other, and we are all looking forward to join them on their big day in the future.”

    ·      A letter from Sheikh Haidr Hassan Mohsen attesting that a marriage contract ‘in absentia’ was concluded on 2 July 2023 by the video technique, through the social media, between the parties.  The Sheikh states “According to the Islamic Sharia, the marriage contract stipulates the approval of the girl and her custodian, and the presence of two witnesses, regardless of their presence or their absence.”

20. In the application, the sponsor stated she was studying and looking for a part time job.  The visa applicant was noted to be working and supporting himself.  In Australia it was stated that the visa applicant will work with the sponsor’s uncle in a security company. 

21. Evidence has been provided of the purchase of several items of jewellery in Beirut by the visa applicant in December 2021, including a ring and bracelets. Several recent transfers have been provided of sums between $300 and $450 sent by the sponsor to the applicant during 2023.  The applicant’s migration agent has reported that due to the conflict in Lebanon, the visa applicant is currently not working and the sponsor is providing him with whatever financial support she can.   I consider that in spite of their respective financial circumstances and their separation, the parties have been able to demonstrate that they do financially support one another as much as is possible and that they intend to combine and pool their financial resources when they marry.

22. In the application, the parties confirmed that they had not yet lived with each other.  As their representative submitted in the written submission, culturally they are precluded from living together until married.  Nonetheless, they have been together in Lebanon (with family) for extended periods.  The sponsor has travelled to Lebanon for some weeks twice in 2018, once in 2019, 2021/22 and in 2023.   Evidence has been provided demonstrating them together in family homes, on holiday, and with family members.  They state that they intend to live together in Australia and to share the household chores.  I accept this to be the case.

23. In the application, the parties stated that they love each other and want to live together.   Extensive phone records provided to the Department and also to the Tribunal over several years show frequent contact via phone and social media between the parties, and also demonstrates personal intimacy between them and a long term commitment to their relationship.  The parties share photographs of them at airports and about to travel to each other (and away from each other), and frequently express their love and care for each other. Photographs provided of them sharing holiday adventures (including parasailing, visiting tourist lookouts and beaches) support a finding that they are in an intimate personal relationship and are committed to marrying and living together as spouses.

24. I consider that, as noted earlier, the Marriage Contract or Nikkah ceremony is a formal and public announcement of their commitment to each other and intention to marry in front of significant family members.[1]  I give it considerable weight.

    [1] From country Studies, US relating to Lebanon:  “After the announcement of the engagement of a Muslim couple, and before the wedding takes place, a formal contract is drawn up. The marriage is legal once the contract is signed. The contract notes the consent of the couple to marry and specifies the bride-price, a payment by the young man to his fiancée. In traditional Muslim society, the bride-price represented a substantial amount of money, or its equivalent in land, or a combination of both. In the 1980s, however, except in remote villages, only a token gift was made. The bride is expected to provide a dowry, usually in the form of furnishings for a new household.”

25. Having considered the information and evidence provided, I am satisfied that the visa applicant and sponsor genuinely intend to marry and live together as spouses.  They have a mututl commitment to  shred life as a married couple to the exclusion of all others and the relationship between them is genuine and continuing.  I am satisfied that once married they will live together.    I find that they satisfied cl 300.216 at the time of application.

1. The applicant satisfies the time of application criteria.

   Time of Decision Criteria.

2. Based on the information and evidence before me, I am satisfied that the visa applicant continues to satisfy clauses 300.211, 300.214 and 200.216.   The applicant satisfies cl 300.221. 

3. 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

4. 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:

   ·clauses 300.211, 300.212A, 300.212, 300.213, 300.214, 300.215, 300.216 of Schedule 2 to the Regulations; and

   ·clause 300.221 of Schedule 2 to the Regulations

   Anne Grant
   Member