Latta (Migration)

[2020] AATA 5398

Latta (Migration) [2020] AATA 5398 (20 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Phillip Latta

VISA APPLICANT:  Miss Hongying Cao

CASE NUMBER:  1824079

DIBP REFERENCE(S):  BCC3017/992758

MEMBER:Kira Raif

DATE:20 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

Statement made on 20 October 2020 at 1:34pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) parties known to each other personally – parties have never met personally – review applicant unable to travel long distances – medical evidence – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 300.214

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 is a national of China, born in July 1972. The visa applicant applied for the visa on 13 March 2017. The delegate refused to grant the visa on 16 July 2018 on the basis that the visa applicant did not satisfy cl.300.214 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant and sponsor had met and were known to other personally. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 20 October 2020 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 Mandarin and English languages.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

6. 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).

7. 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.

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

8. The review applicant provided to the Tribunal a copy of the primary decision record. It sets out information in relation to the visa applicant’s relationship with the sponsor. It states that the parties were engaged in October 2016 through the internet. The review applicant provided medical evidence indicating he is unable to travel long distances. The visa applicant stated in the application that she had not met the sponsor in person.

9. In oral evidence the review applicant confirmed that they had not met in person since each of them turned 18. The visa applicant said that the review applicant cannot travel. The plan was for her to come to Australia but she could not travel. The review applicant explained the reasons he could not travel. His witness, who assisted the review applicant in the course of the hearing, said the parties had met electronically and talk to each other regularly and that should be considered as a personal meeting in the modern world. However, the Tribunal considers the legislation to be unambiguous when it refers to parties meeting in person and the Tribunal does not consider meeting by electronic means can be considered as meeting in person. Neither is the Tribunal able to waive the statutory requirement based on the parties’ circumstances. Thus, while there may be reasons why the applicant and sponsor had not met in person, the Tribunal cannot overlook the requirement of cl. 300.214.

10. The review applicant provided a number of documents to the Tribunal. There are several statutory declarations from third parties, statements from the visa applicant and her daughter and other evidence of the relationship. In a submission of 24 September 2020 the applicant presented statements, medical and other evidence of the relationship. The Tribunal acknowledges that evidence but notes that the parties’ relationship is not at issue.

11. The evidence before the Tribunal indicates that the visa applicant and the sponsor have not met each other in person. The visa applicant does not meet c. 300.214.

    Conclusion

12. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

13. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

    Kira Raif
    Senior Member