Lastra Pena (Migration)
[2024] AATA 2257
•22 April 2024
Lastra Pena (Migration) [2024] AATA 2257 (22 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Juan Felix Lastra Pena
VISA APPLICANTS: Ms Rosse Mary Jarro Cuyo
Mr Limbert Zamudio Jarro
Mr Pedro Martin Zamudio JarroREPRESENTATIVE: Mr Surendra Man Shrestha, migration agent, Australian Immigration & Citizenship Centre
CASE NUMBER: 2309455
HOME AFFAIRS REFERENCE(S): BCC2017/2267796
MEMBER:Michael Ison
DATE:22 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications 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 300.214 of Schedule 2 to the Regulations.
Statement made on 22 April 2024 at 12:33pm
CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – subclass 300 – parties met in person in Chile – decision under review remittedLEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 300.214STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The primary visa applicant is Ms Rosse Mary Jarro Cuyo who is 51 years-old and is a national of Bolivia. Ms Jarro Cuyo is referred to as the visa applicant or first named visa applicant in these reasons for decision as the context requires.
The review applicant is Mr Juan Felix Lastra Pena who is 74-years-old, was born in Chile and is a national of Australia, having acquired Australian citizenship on 18 November 1987 by conferral. Mr Lastra Pena is referred to as the review applicant in these reasons for decision.
On 7 January 2011 the visa applicant applied for her Prospective Marriage (Class TO) (Subclass 300) visa as the prospective spouse of her sponsor for that visa, the review applicant. Mr Limbert Zamudio Jarro and Mr Pedro Martin Zamudio Jarro were also included in that Prospective Marriage visa application as members of the family unit of the visa applicant, being her sons from a previous de facto relationship. At the time of this decision Mr Limbert Zamudio Jarro is aged 30 and Mr Pedro Zamudio Jarro is aged 23 and both are nationals of Bolivia.
Mr Limbert Zamudio Jarro and Mr Pedro Zamudio Jarro are referred to as the second named and third named visa applicant’s respectively or collectively as the secondary visa applicants in these reasons for decision.
The visa applicant’s first application for the Subclass 300 visa was refused by a delegate of the Minister on 28 February 2011. The review applicant did not apply for review by the Tribunal of that visa refusal.
On 27 June 2017 the visa applicant applied a second time for a Prospective Marriage (Class TO) (Subclass 300) visa as the prospective spouse of her sponsor, the review applicant. The visa application was made on the grounds of the visa applicant’s intention to marry the review applicant. This was the visa application that included both of the visa applicant’s sons.
The visa applicant and review applicant claim that they first met in person on 13 June 2013 in Santiago, Chile. They also claim to have committed to a shared life to the exclusion of all others on that date when they got engaged in a Church in Chile.
However, at time of the visa application, the applicants did not provide a Notice of Intention to Marry to the delegate.
On 23 January 2018 the delegate received a letter from a marriage celebrant dated 25 August 2017 stating that the marriage will take place on 7 April 2018 at 1 Tyree Avenue in Springvale, Victoria.
The visa applicant has been in a de facto relationship once previously, from 21 January 1992 to 25 April 2003. The visa applicant’s sons were born during that relationship.
The review applicant has been married once previously, from 17 December 1974 to 10 December 1987 and that marriage produced two children.
The review applicant has also had a previous de facto relationship with Ms Socorro Ochoa, from 26 July 1986 to 13 October 2000 and that relationship produced one child.
At the time the visa applicant applied for the Subclass 300 Prospective Marriage visa, the visa and review applicants were not married and applied on the basis of the visa applicant being the prospective spouse of the review applicant.
There is no evidence before the Tribunal that the visa and review applicants are related by blood, marriage or adoption or prior to meeting in June 2013 were known to each other.
The visa applicant’s second application for the Subclass 300 Prospective Marriage visa was refused on 9 May 2018. It is the refusal to grant the applicants’ those Prospective Marriage visas that is the subject of this review.
The primary decision of a delegate of the Minister
The review applicant provided the Tribunal with a copy of the primary decision.
The visa applicants applied for the visas on 27 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl 300.214 which provides:
(1) The applicant and the prospective spouse have met in person since each of them turned 18.
(2) The applicant and the prospective spouse are known to each other personally.
The delegate refused to grant the visas on 9 May 2018 on the basis that the first named visa applicant did not satisfy cl 300.214 of Schedule 2 to the Regulations because the delegate found the applicants did not provide any evidence of the visa applicant having met the review applicant in person after they each turned 18 years of age.
Review 1821080 before the Tribunal (differently constituted)
The review applicant lodged the application for review of the primary decision with the Tribunal on 20 July 2018.
The review applicant’s application was considered by the Tribunal, differently constituted, in Tribunal review 1821080.
On 6 August 2018 the Tribunal decided in writing that it did not have jurisdiction in this matter as the application for review was not received by the Tribunal until 20 July 2018, when at the time an application for review had to be lodged with the Tribunal within 70 days of the applicant being notified of the Department’s refusal to grant the visas. The 70th day after the primary decision was 18 June 2018.
Review by the Federal Circuit Court
On 22 August 2018 the review applicant appealed to the Federal Circuit Court of Australia, as it then was, for judicial review of the Tribunal’s decision in Tribunal review 1821080.
On 15 June 2023 the Federal Circuit Court quashed the Tribunal’s decision dated 6 August 2018 and remitted the review applicant’s application back to the Tribunal, with the consent of the Minister, with an order that the Tribunal review the primary decision according to law as follows:
The Court (sic) made an ex tempore decision and did not provide written reasons. The Department advised that the Minister accepted that the Tribunal decision was affected by the same error found in Sandor v MICMA [2023] FCA 434 but made a formal submission that Sandor is wrong. The Court found it was bound to follow the Federal Court's decision in Sandor.
In Sandor the Federal Court of Australia found that some Department letters of notifications of decisions sent to authorised representatives of visa applicants did not state the time within which the application for review to the Tribunal may be made in a complete and clear manner as required by s 66(2)(d)(ii) of the Act. This finding had the effect that the applicant in Sandor had not been legally notified of the decision and therefore the time in which to lodge an application for review with the Tribunal had not commenced to run. In other words, the purported notice given by the notification of decision letter was invalid.
The letter notifying the review applicant of the refusal of the applicants’ applications for the Subclass 300 Prospective Marriage visas in this case was in substantially the same form as the notification letter in Sandor.
Constitution to the Tribunal as presently constituted
The review applicant’s remitted application for review was constituted to the Tribunal as presently constituted on 17 January 2024.
The Tribunal hearing
The review applicant appeared before the Tribunal on 22 February 2024 to give evidence and present arguments, in person. The visa applicant participated in the hearing by telephone.
The Tribunal also received oral evidence from Mr John Lastra Ochoa who is a son of the review applicant.
The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The review applicant and the visa applicant were represented in relation to the review by the Mr Surendra Man Shrestha, migration agent, Australian Immigration & Citizenship Centre. Mr Shrestha is referred to in these reasons as the applicants’ representative or the representative. The representative attended the Tribunal hearing.
Tribunal decision
The Tribunal has had regard to the oral evidence of the visa applicant, review applicant and Mr Lastra Ochoa, all of the information in the oral and written submissions provided to the Tribunal on the applicants’ behalf and to the information in the Tribunal’s file for Tribunal reviews numbered 2309455 and 1821080 and the Department’s file provided to the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant and review applicant have met in person since they each turned 18 and are known to each other personally.
Have the applicants met in person and are they known to each other personally?
Clause 300.214 has two requirements. The first is that the parties have met in person. This first requirement reflects that the parties must have physically met each other – not merely by telephone, video call or through social media or written correspondence. The second is that the parties are known to each other personally. This second requirement reflects that a single or fleeting in-person meeting may not be sufficient because being known to each other imports at least the beginning of the development of some form of relationship.
The parties did not provide relationship statements with the visa application, did not provide evidence of having met in person and did not provide evidence of communications between them. The Department wrote to the review applicant three times and granted the review applicant an extension of time to respond to the third letter but did not receive further information from the review applicant prior to making the decision to refuse the visa applications on 9 May 2018.
During the Tribunal hearing Mr Lastra Ochra told the Tribunal that the application for the visa has been a drawn-out process during which his father, the review applicant, has suffered a lot. Mr Lastra Ochra’s evidence is he travelled through Bolivia for a week in 2018 and stayed one night with the visa applicant, met the second named visa applicant whilst the third named visa applicant was away at university. Mr Lastra Ochra told the Tribunal the visa applicant spoke very warmly about the review applicant when Mr Lastra Ochra was in Bolivia and he has spoken to her a number of times on the telephone throughout her relationship with his father. Mr Lastra Ochra told the Tribunal he believes the relationship between his father and the visa applicant is “100% genuine”.
The review applicant told the Tribunal that he first met the visa applicant online on an internet website Latino-American Cupid in approximately 2011. With the subsequent evidence provided to the Tribunal it is clear they first met online in 2009 and that the review applicant is a not an accurate historian in this and other regards. However, given the Tribunal was discussing events with the review applicant that occurred 10 to 15 years ago and also given the review applicant’s age the Tribunal has not drawn any adverse inferences from the review applicant’s incorrect recollection of dates in this review.
The review applicant’s evidence is that he and the visa applicant initially communicated through the website, then by telephone before meeting in person in Santiago, Chile where the review applicant has family. The review applicant told the Tribunal he paid for the travel of the visa applicant and her children and he stayed in Chile for two months, they stayed for approximately six weeks and they visited members of his large family including his grandparents in Rancagu for a week to 10 days, went to the beach often because there are no beaches in Bolivia and visited different cities and places in Chile. The review applicant told the Tribunal that during their stay in Rancagu one of the visa applicant’s sons broke his hand and had to go to hospital but because they were Bolivian and not Chilean citizens, the review applicant had to pay for the hospital expenses before the visa applicant’s son would be treated.
The Tribunal noted and discussed with the review applicant that his Australian government movement records state that the review applicant was in Australia on 13 June 2016 and did not depart Australia to travel to Chile until 16 June 2013, so he could not have met the visa applicant in-person on 13 June 2013 as stated in the visa application. The review applicant could not recall the date he departed Australia for Chile in 2013 or, at least correctly, the date he returned to Australia in 2013.
The visa applicant told the Tribunal she met the review applicant online in 2009 and in person in June and July 2013 when they spent three to four weeks together in Chile, which she travelled to with her then young children and recounted the story of the third named applicant breaking his wrist during their stay in Rancagu after he fell out of a tree he was climbing. The visa applicant also told the Tribunal about the places she visited and where she stayed with the review applicant whilst they were in Chile together. The visa applicant told the Tribunal she has not met the review applicant in person since 2013 but they stay in touch, get along very well, have a good relationship and the visa applicant needs the review applicant’s support.
The visa applicant indicated to the Tribunal that she has photos, travel records and receipts and medical records from her time in Chile with the review applicant.
The Tribunal invited the parties to provide any documents and other evidence of them having met in person in Chile in 2013 to the Tribunal after the hearing. The Tribunal requested that this post hearing information be provided by 7 March 2024. The review applicant sought and was granted an extension of time to provide post-hearing submissions to the Tribunal by 21 March 2024. On 21 March 2024 the representative sought an extension of time of an additional 24 hours to provide the post-hearing submissions, which was also granted.
On 22 March 2024 the Tribunal received three emails from the representative on behalf of the parties attaching documents that included:
·A three-page submission from the representative;
·Six photos of the review and visa applicants time in Chile, including four photos of the review and visa applicant together, including with the review applicant’s family;
·11 pages of photos of the address blocks of parcels and photos of postcards the review and visa applicant have sent each other;
·Four pages of photos of airline tickets and travel information for the visa applicants 2013 trip to Chile;
·A card for a hotel in Santiago, Chile;
·Receipts, in Spanish, from 2013;
·Hospital records, in Spanish, dated 10 July 2013 naming the first and third named visa applicants;
·Copies of communications between the parties and other documents in Spanish dating back to February 2010; and
·A notice of intended marriage for their wedding on 20 December 2014.
The Tribunal is satisfied from the oral evidence of the review and visa applicant and particularly from the post hearing submissions provided to the Tribunal that the review applicant and the visa applicant met in person in Chile and spent, based on the flight and travel information provided by the visa applicant, the period between 8 and 19 July 2013 together in Chile.
Therefore, at the time of application, the Tribunal finds the requirements of cl 300.214 are met by the visa applicant.
Conclusion – first named visa applicant
As the remaining criteria for the grant of a Subclass 300 visa have not been assessed by a delegate of the Minister, the appropriate course of action is to remit the first named visa applicant’s application for a Subclass 300 (Prospective Marriage) visa to the Minister with a relevant direction.
Second and third named visa applicants – Mr Limbert Zamudio Jarro and Mr Pedro Martin Zamudio Jarro
As the Tribunal has found that the primary visa applicant meets the requirements of cl 300.214 of Schedule 2 to the Regulations the appropriate course of action in relation to the secondary visa applicants is to remit their applications for secondary Subclass 300 (Prospective Marriage) visas to the Minister for reconsideration pending the final determination of the primary visa applicant’s application.
DECISION
The Tribunal remits the applications 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 300.214 of Schedule 2 to the Regulations.
Michael Ison
Senior Member
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Immigration
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Administrative Law
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