Kamara (Migration)

Kamara (Migration) [2018] AATA 5834 (27 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Lansay Kamara
VISA APPLICANTS:  Miss Oumou Kamara and Master Papay M Kromah
CASE NUMBER:  1715081
DIBP REFERENCE(S):  BCC2014/2557935
MEMBER:Ann Duffield
DATE:27 November 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
·cl.300.211 of Schedule 2 to the Regulations
·cl.300.212 of Schedule 2 to the Regulations
·cl.300.213 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

The Tribunal makes no findings in relation to the secondary applicant and directs his application to the department for assessment.
Statement made on 27 November 2018 at 11:06am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – financial support to the applicant and her brother – strong engagement between the families – entered into a Sharia marriage – six months living together in the same home – 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, 300.212, 300.213, 300.214, 300.215, 300.216, 300.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 17 September 2014. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The secondary applicant is a step brother of the primary applicant born on 16 January 2009 (9 years old).
The delegate refused to grant the visas on 21 June 2017 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the parties had a genuine intention to live together as spouses.
The sponsor appeared before the Tribunal on 23 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s mother sister and brother as well as via telephone from the visa applicant.
The applicant is nonverbal and also deaf. Prior to the hearing his adviser informed the Tribunal that the applicant is mute, 80% deaf and does not know sign language. He is also only semi-literate, making his written communications extremely limited. The adviser nevertheless sought the services of a Mandinka interpreter and asked that the Tribunal utilise the sponsor’s mother in communication with the sponsor. The Tribunal arranged for a relevant interpreter and the hearing proceeded on the understanding that the sponsor’s mother would also assist where necessary.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.
The sponsor is an Australian citizen by grant on 16 November 2007. He first arrived in Australia as a refugee from Liberia on 6 January 2005 and was born on 15 March 1990 (28 years old).
The applicant is a citizen of Liberia born on 28 December 1993 (24 years old). The secondary applicant is the step brother of the applicant and he has allegedly been in her sole care since his father, the applicant’s step-father passed away on 20 March 2014.
The parties claim to have first met on 1 January 2014 as a result of an introduction by the sponsor’s mother, Ms Toure. Ms Toure travelled to Guinea in 2009 and met the applicant through a friend. During her three years in Guinea she also travelled to Liberia to see the applicant and her family. She decided that the applicant would make a good wife for the sponsor and suggested to the sponsor that he meet with her when she returned to Australia in 2012. A meeting was subsequently arranged some two years later and the applicant and his mother, Ms Toure travelled to Guinea on 1 January 2014. A traditional wedding took place on 20 February 2014 in Liberia under Sharia Law.
The sponsor’s travel records indicate that he departed Australia on 31 December 2013 and returned on 8 April 2014. He also departed Australia on 25 December 2017, returning on 13 February 2018. On both these occasions the applicant travelled to Africa to live with the applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant and the sponsor have a genuine intention to live together as spouses as envisaged by the Migration Act.
Do the parties genuinely intend to live together?
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.
The Tribunal hearing
The sponsor and his family members presented evidence at the Tribunal hearing that was consistent compelling and plausible. Given the characterisation of the sponsor’s communication difficulties, the Tribunal was concerned about his capacity to give evidence. The sponsor and his mother told the Tribunal that his speech and hearing difficulties arose out of a bout of meningitis when he was an infant. Asked if that affected his mental or intellectual capacity both strongly denied this. Indeed, despite the evident difficulties that the applicant has with his hearing and speech he was nevertheless able to communicate with the Tribunal very effectively. He has held a full time job with the same company for the past nine and a half years and worked his way through promotions to become a manager.
The Tribunal found him to be a man of intelligence, humour and warmth with a genuine affection for the visa applicant and a sincere and genuine intention to live with her as his spouse in Australia. The physical limitations on his speech and hearing are profound, but he nonetheless has managed to overcome those limitations to make a positive and purposeful contribution to his community and to maintain a relationship with the woman he loves. The Tribunal accepts the parties’ claims for the following reasons.
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 has considered the financial aspects of the parties’ relationship including the extent to which they share financial resources or have joint assets or liabilities.
The sponsor has provided a number of receipts showing transfer of funds from himself to the applicant from 1 January 2015 to 25 July 2017 totalling around AUD$14,000. There are also a number of other transactions indicating that the sponsor sent the applicant several thousand dollars in 2014. The visa applicant does not work and is the sole carer now for her step brother. The sponsor told the Tribunal that he provides for the entirety of her living expenses. Asked if she intended to work if she were permitted to come to Australia, the applicant told the Tribunal that it was her intention to work in aged care and study English.
The sponsor has provided a written statement from his employer indicating that he has worked for their company on a full time basis since November 2008 and earns $717.82 per week. He told the Tribunal that he has saved some of this money and they hope to buy a house when the visa applicant comes here. He currently lives with his brother and family and pays board.
The Tribunal appreciates that it is difficult to pool resources when the parties reside in different countries. However to the extent that the sponsor has been the sole provider of financial support to the applicant and her brother for the past four years suggests to the tribunal that the financial aspects of the parties relationship support a finding that they are in a genuine and long term spousal relationship.
The Tribunal has considered the social aspects of the parties relationship including their representation of themselves to others, the extent to which they socialise together and plan shared events and whether they consider themselves a couple, for example.
The parties live separately and apart, however there is and has been strong engagement between their families. For example, the sponsor told the Tribunal that the applicant had been looking after his Uncle Joseph who had returned to Guinea with a terminal illness. The parties told the tribunal that the applicant had stayed there for about a month looking after Joseph and making the funeral and other arrangements after his death. Asked why the applicant had to do this the parties told the Tribunal that the applicant was the only family in Africa at the time and she had willingly tried to help.
The parties provided the Tribunal with a number of statutory declarations and statements from friends and other family members stating that their observance is that the parties are in a genuine relationship. There are also a number of photographs of the parties together and with others. Ms Toure, also told the Tribunal that the applicant travelled to Guinea to attend to Ms Toure’s dying son, Joseph (DOB 1980), who had returned to Guinea. She claims that the applicant remained with him and cared for him as well as attended to the bereavement process for a period before returning to Liberia. She claims that the applicant is well integrated into her family.
The sponsor brother and sister also told the Tribunal that they had witnesses the extensive and frequent communications between the sponsor and the applicant. Both said that the sponsor had become a much more outgoing and confident person since his marriage to the applicant. Both consider the applicant to be a member of their family. The Tribunal accepts that this aspect of the parties’ relationship supports a finding that they have a mutual commitment to a long life together to the exclusion of all others.
The Tribunal has considered the nature of the parties’ household and the nature of their commitment to each other.
The Tribunal accepts that the parties have entered into a Sharia marriage that is recognised by their community and in their eyes is the most important aspect of their marriage. Nevertheless, both are committed to having a legal marriage in Australia with family and friends in attendance. No arrangements are yet in place and given the uncertainty around the visa grant the Tribunal accepts that reasoning in the context that they already consider themselves a married couple in all that it entails.
The Tribunal notes that the meeting had been arranged but both the parties and the sponsor’s mother denied that any marriage was mandatory. The sponsor’s mother told the tribunal that when she met the applicant she thought that she was kind and would be good to her son She said that whilst she hoped the math would be a good one she also said that she would only support it if they had genuine feelings for each other. She told the Tribunal that the sponsor and applicant have a special connection with each other and it is obvious to those who see them together.
The parties have spent a total of some six months living together in the same home and they have provided some photographs to support that claim. They have now been in a relationship for five years and the Tribunal accepts that they have remained committed to each other throughout that time. Asked if he would consider moving to Guinea or some other place if the visa was not granted the sponsor said that he would have to consider it. The applicant said that she hoped that the sponsor would move back to Africa to live with her should either her, or her brother’s visa be refused again.
Given their stated desire to have four children, the Tribunal spoke to both parties about the nature of the sponsor’s disability and the possibility that it was heredity. Both understood that it was not heredity and had no concerns that their children would be similarly afflicted.
The Tribunal noted that the parties shared a surname and asked if they were related. Both denied that they were as they came from different regions. There is no evidence or suggestion before the Tribunal that they are related by blood or marriage.
The Tribunal is satisfied that the parties have a mutual commitment to a shared life together as man and wife. The Tribunal is satisfied that they do not live separately and apart on a permanent basis. The Tribunal is satisfied that they view their relationship as ongoing.
On the basis of the above the Tribunal is satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl.300.216 is met.
The Tribunal put to the parties that it was not in a position to make an assessment about the eligibility of the secondary applicant and whether he met the primary criteria for the grant of a visa. The Tribunal put to the parties that it would remit consideration of that matter back to the department.
The Tribunal has also considered the other criteria for the grant of visa and made the following findings:
a.The applicant intends to marry the prospective spouse who is an Australian citizen;
b.The prospective spouse is not prohibited for specified reasons from being a sponsor;
c.The visa applicant is sponsored by the prospective spouse;
d.The parties have met and are known to each other personally; and
e.The visa applicant establishes that he parties genuinely intend to marry and intend that the marriage will take place within the visa period.
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
The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
·cl.300.211 of Schedule 2 to the Regulations
·cl.300.212 of Schedule 2 to the Regulations
·cl.300.213 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
The Tribunal makes no findings in relation to the secondary applicant and directs his application to the department for assessment.
Ann Duffield
Senior Member

[2018] AATA 5834

27 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction