Maina (Migration)

[2018] AATA 3329

Maina (Migration) [2018] AATA 3329 (19 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr James Kamunya Kanuri Maina

VISA APPLICANTS:  Ms Susan Wairimu Kimondo
Miss Gertrude Wanjiru Wairimu

CASE NUMBER:  1725154

DIBP REFERENCE(S):  BCC2017/701018

MEMBER:Brenton Illingworth

DATE:19 July 2018

PLACE OF DECISION:  Adelaide

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:

· Clause 300.211 of Schedule 2 to the Regulations;

· Clause 300.214 of Schedule 2 to the Regulations;

· Clause 300.215 of Schedule 2 to the Regulations;

· Clause 300.216 of Schedule 2 to the Regulations;

· Clause 300.221 of Schedule 2 to the Regulations.

Statement made on 19 July 2018 at 3:23pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine spousal relationship – sponsor’s health – sponsor’s inability to travel – regular telephone contact – dowry ceremony – wedding arrangements – financial contributions by sponsor – future household arrangements – applicant’s close relationship with sponsor’s family – applicant’s willingness to integrate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2 cls 300.211, 300.214, 300.215, 300.216, 300.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicant’s Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 21 February 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 (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 that the parties genuinely intend to live together as spouses.

3. The delegate refused to grant the visas on 30 August 2017 on the basis that the main applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the Delegate determined there was insufficient evidence to demonstrate the parties have been or intend to be in a genuine and continuing relationship. Accordingly the delegate found the parties do not genuinely intend to live together as spouses.

4. The review applicant (“Mr Maina”) appeared before the Tribunal on 7 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s elder brother, Amos Gitonga Maina (“Mr Amos Maina”), and sister‑in‑law Zipporah Muthoni Maina (“Mrs Maina). Attempts were made to receive evidence from the primary visa applicant (“Ms Kimondo”), but the telephone connection was too poor and her evidence could not continue. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

5. Mr Maina was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Mr Maina is currently aged 46 years. He travelled to Australia from Kenya in 2003 on a student visa to pursue his studies. Prior to travelling to Australia he had been in a relationship with Ms Kimondo from 1999 until shortly prior to his departure.

8. Upon arrival in Australia Mr Maina lived with his elder brother and his family until 2007. He studied nursing at Flinders University between 2004 and 2006, and thereafter pursued a  Degree in Paramedics, which he completed in 2008. He was then employed by SA Ambulance until 2012 when he was diagnosed with leukaemia from which time he has been in receipt of Centrelink payments.

9. Mr Maina’s medical condition is currently in remission and he hopes to return to his employment with SA Ambulance. His substantive position remains available to him should he be fit to return to work.

10. In 2011 and prior to being diagnosed with leukaemia, Mr Maina was in a de facto relationship. There was a child of that relationship, namely a son.

11. Between 6 November 2011 and 1 January 2012 Mr Maina and his family travelled to Kenya. Ms Kimondo was then in a de facto relationship and there was a child born to that relationship, who is the secondary applicant (“the daughter”). Whilst there Mr Maina learnt that Ms Kimondo had given birth to their son shortly after he moved to Australia in 2003.

12. Mr Maina arranged to meet Ms Kimondo and their son. At that time Ms Kimondo’s relationship with her partner was deteriorating and their son was not happy living with Ms Kimondo’s partner. In 2012, shortly after Mr Maina returned to Australia, Ms Kimondo’s relationship ended when her former partner abandoned her and the children.

13. Following their return to Australia in 2012, Mr Maina’s relationship with his partner became strained and when he was diagnosed with leukaemia in 2012 his illness added further strain on that relationship.

14. After returning to Australia Mr Maina maintained contact with Ms Kimondo. He telephoned her fortnightly. The main topic of discussion was their son. Mr Maina sent money to Ms Kimondo from time to time to assist her with the care of both children.

15. Mr Maina and Ms Kimondo subsequently decided it was in their son’s best interest to attend a boarding school, which he did. Mr Maina paid those boarding school fees, however it was later decided that their son would move to Australia to live with Mr Maina. Their son arrived in Australia on 11 January 2014 and continues to live with Mr Maina. He is now aged 14 years.  Mr Maina continued to send money to Ms Kimondo to help support her and her daughter.

16. The telephone communications between Mr Maina and Ms Kimondo increased after their son moved to Australia and subsequently their romantic feelings for each other renewed.

17. Mr Maina and his partner separated in February 2016 and on 4 June 2016 he proposed marriage to Ms Kimondo and they became engaged. In evidence, Mr Maina explained that insofar as it had been said that his relationship with his de facto partner officially ended on 5 June that was the end date of their joint lease agreement and concluded any legal ties they had with each other. However the relationship in fact ended when they commenced to live separately and apart from February 2016.

18. In mid‑2017, Mr Maina’s former de facto partner and their son moved interstate. He continues to pay maintenance for that son but otherwise he does not see them.

19. Mr Maina and Ms Kimondo speak daily by telephone. Their discussions include future plans for their son and the daughter’s education, their religious beliefs and joining the congregation of a Catholic church close to their intended residence, which is in a 3‑bedroom home leased by Mr Maina in anticipation of Ms Kimondo and her daughter moving to Australia. Further, it has been agreed that following their marriage it is intended that Ms Kimondo will work, and Mr Maina will care for the children and the household until his health permits him to return to work. They will jointly share their finances and the care of both children.

20. Mr Maina provided the Tribunal with a money transaction receipt dated 4 May 2018 in the sum of $136.45 AUS which he said and the Tribunal accepts, is the approximate sum he sends to Ms Kimondo each month to assist her with her finances and the care of her daughter.

21. When Ms Kimondo arrives in Australia she intends to have her Kenyan early childhood teaching degree recognised in Australia and to pursue work in that profession. She also intends to enrol in studies in aged care nursing.

22. Mr Maina says that when Ms Kimondo moves to Australia and obtains employment they plan to pool their joint incomes and in due course purchase their own home. They eventually would like to retire to the countryside, perhaps the Riverland.

23. Ms Kimondo has a close relationship with Mr Maina’s family in Kenya. His family was aware of the birth of their son but Ms Kimondo did not want Mr Maina to be advised of that birth. Nonetheless, she and their son saw Mr Maina’s parents regularly. That continued throughout her defacto relationship and to date. This was confirmed in the statutory declaration of Mr Moses Maina Giatonga, Mr Maina’s father.

24. Ms Kimondo provides Mr Maina’s parents with assistance in the care of their property, and personal care and support when they are unwell. She is regarded as part of the family. Shortly after their engagement on 4 June 2016, a dowry ceremony took place in Kenya and in Mr Maina’s absence his family represented him at that ceremony. He could not travel to Kenya because of his health. Mr Maina explained, as will be evident from the evidence of his brother, that a dowry ceremony is an important tradition in Kenya. The gentleman pays an agreed sum of money to the fiancée’s family whereupon he is given permission to continue in the relationship. The dowry ceremony continues over the course of the marriage and is a demonstration of the husband’s ongoing commitment to his wife, their family and children.

25. Since returning to Australia in January 2012, Mr Maina has not returned to Kenya because of his health. He has not been in Ms Kimondo’s presence since that time.

26. Mr Maina provided medical reports which confirm he is not approved for long‑haul travel. He was cleared for travel to Asia in 2013 with his former partner and their son but he has not been cleared to travel to Kenya, which the Tribunal accepts.

27. The Tribunal received two reports from Dr Devendra Hiwase Consultant Haematologist. Mr Maina was diagnosed with T cell acute Lymphoblastic Leukaemia. His condition was very complex. He underwent sibling allogeneic stem cell transplant in August 2012 with multiple post-transplant complications. His elder brother was the donor. He also underwent hip replacement surgery in September 2015 complicated by pulmonary embolism. In his report dated 1 July 2016 Dr Hiwase reports that Mr Maina wanted to travel to Africa which was discussed with a physician. It was strongly recommended he did not travel to Kenya. The risk of infection was high with potentially serious consequences.

    EVIDENCE OF AMOS GITONGA MAINA

28. Mr Amos Maina is the elder brother of Mr Maina. He and his wife have been married 27 years and have three children all of whom were born in Kenya. The family came to Australia in 2001. Two of his children are currently living interstate.

29. When in Kenya Mr Amos Maina was responsible for the care of Mr Maina who was seven years his junior. They had a close relationship. When Mr Maina travelled to Australia he lived with Mr Amos Maina and his family until 2007.

30. Mr Amos Maina and his wife both qualified as pharmacists whilst in Kenya. When they came to Australia both continued in that profession. Mr Amos Maina has since studied medicine at Flinders University and from 2015 has been a practising medical practitioner.

31. Mr Amos Maina and his family enjoy a close relationship with Mr Maina and his son. They see each other most weekends. He described Mr Maina’s battle with leukaemia over the last six years. The family thought that he would not survive. Mr Amos Maina donated stem cells as part of his brother’s ongoing treatment. There was initially an issue with rejection, but Mr Maina is now having treatment to supress that rejection. Mr Maina has some side‑effects from his current treatment which affect his skin and eyes and his jaw will lock when speaking, which was evident when Mr Maina gave evidence.

32. Mr Amos Maina said that his brother’s health had improved and he was firmly of the view his health would not have a negative impact on his relationship with Ms Kimondo.

33. Mr Amos Maina first met Ms Kimondo in or about the year 2000 when still living in Kenya. He only saw Mr Maina and Ms Kimondo together briefly, but they appeared to then be in a genuine and loving relationship.

34. Mr Amos Maina and his wife were in Kenya in February 2018. He was there for the dowry ceremony for his marriage, which he described as a ceremony that never ends. He regularly engages in a dowry ceremony with both he and his wife’s family, describing it as a restatement and reinforcement of the dedication that he has to his marriage, and their children.

35. Ms Kimondo attended Mr Amos Maina’s dowry ceremony. Mr Amos Maina described her as having a close relationship with his family, which he observed when he was in Kenya. He said that Ms Kimondo will go to his parents’ home every school holiday period and take her daughter to see them. She looks after his father who has prostate issues. The family decided to use Ms Kimondo as a support person for his father because she was reliable.

36. Mr Amos Maina described his parents visit to Adelaide in 2013. When they were in Australia Ms Kimondo looked after his parents’ home and his youngest brother who is disabled. She coordinated all of that so that his parents would be able to come to Australia.

37. Mr Amos Maina spoke of Mr Maina’s regular attendance at his home on weekends. At or about 7:00pm each evening he telephone and spoke to Ms Kimondo. Ms Kimondo also spoke to Mr Amos Maina, his wife and Ms Kimondo’s son.

38. Mr Amos Maina said that he is financing the wedding of Mr Maina and Ms Kimondo. He will also be taking part in the ceremony. That event will occur when she arrives in Adelaide. He said he has no doubt that the marriage will last. When he saw Ms Kimondo in Kenya earlier this year he was sure that she and Mr Maina had a loving relationship, which was strengthened by their love for their son who is now living in Australia. He described Ms Kimondo as person who was not ambitious but humble and loving.

39. In describing difficulties Ms Kimondo may face, Mr Amos Maina said it would initially be in understanding the Australian accent. She speaks English, but the Australian accent will be foreign to her initially. Mr Amos Maina explained that he had difficulty understanding the Australia accent when he first arrived in Australia. Nonetheless, he was firm in the view that Ms Kimondo will get on well with his family, she is not a stranger to them, and she also knew Mr Amos Maina’s sister who resides in Canberra.

    EVIDENCE OF SUSAN KIMONDO

40. Arrangements had been made for Ms Susan Kimondo to give evidence by telephone from Kenya. She had travelled some distance to a hotel which was capable of receiving international phone calls. From the start of the evidence it was difficult to communicate. The telephone connection was very poor and it became impossible to take evidence from her. A further attempt was made by Mr Maina to contact Ms Kimondo on her mobile phone, but that connection also failed.

41. Subsequently the Tribunal was advised that there had been some severe weather in Kenya which interrupted telephone communications, but Ms Kimondo would make arrangements to be available to give evidence on a further date. The Tribunal has considered Ms Kimondo’s statements dated 16 February 2017 and 20 June 2017 and does not find it necessary to hear further from her at this time.

    EVIDENCE OF MRS ZIPPORAH MUTHONI MAINA

42. Mrs Zipporah Muthoni Maina (“Mrs Maina”) is the wife of Mr Amos Maina. She met her husband in about 1990 and they lived in Nairobi. She described them as having a close family. She met Ms Kimondo in 1999. She said that she and Ms Kimondo caught up once in a while until she and her husband came to Australia. Mrs Maina currently works as a research pharmacist in Adelaide.

43. Mrs Maina said she learnt of Mr Maina and Ms Kimondo’s child when her family and Mr Maina were all together in Kenya in or about 2012. She did not see Ms Kimondo on that occasion.

44. When she and her husband recently travelled to Kenya, Mrs Maina saw Ms Kimondo. Ms Kimondo attended her in‑laws for Christmas. She described Ms Kimondo as enjoying a good relationship with the members of the Maina family.

45. Mrs Maina also described the dowry ceremony with her parents that occurred in February 2018. Ms Kimondo was present. It was “very ceremonial” and “it shows the appreciation of me and to assure my parents and family that Amos is going to support me. He came with a gift. We all participated, we interacted and that interaction included our children”. Mrs Maina said that Ms Kimondo is recognised as part of the Maina family.

46. Mrs Maina had lunch with Ms Kimondo in Nairobi and said that all she could talk about was Mr Maina. Ms Kimondo described their plans to live together as a family, about having her professional qualifications recognised in Australia and her intention to work in the education system. Ms Kimondo also expressed to her an interest in working in aged care or as an enrolled nurse.

47. Mrs Maina said that she and her husband had a close relationship with Mr Maina and his son. They discuss Ms Kimondo, and their arrangements for the future including the education of both children and the enrolment of Ms Kimondo’s daughter at school.

48. Mr Maina comes to their home most weekends and that around 9 o’clock on Sunday evenings he rings and talks to Ms Kimondo. She hears them discussing arrangements for the children and she says that in her observations they appear to love each other and are committed to each other.

49. Mrs Maina has observed a lot of improvement in Mr Maina physically as he has sought to overcome his leukaemia and his relationship with Ms Kimondo has given him strength and energy in that battle.

50. Mrs Maina says that she has spoken to Ms Kimondo about Mr Maina’s health issues.  When they met earlier this year in Kenya they spoke in detail about Mr Maina’s current illness and future treatment, but she was satisfied that Ms Kimondo was not put off at all by Mr Maina’s health issues. She wanted to be with Mr Maina to help him in his recovery.

51. Mrs Maina explained that when Ms Kimondo and her daughter move to Australia they will have no social support but she, her husband, her family and friends will welcome them into their lives.

52. Mrs Maina also confirmed that she had spoken with Mr Maina and Ms Kimondo about their future plans for the day to day care of their children. Initially Ms Kimondo proposes to obtain employment and Mr Maina will look after the house and the children until his health improves. Mrs Maina said that she and her husband and family will be there for them and support them.

    SUMMARY OF EVIDENCE

53. Mr Amos Maina and Mrs Maina were both very impressive, intelligent and articulate witnesses whose evidence the Tribunal accepts. The Tribunal notes that during the whole of the evidence their daughter was present in court, as was Mr Maina’s son. It was apparent that they were a very supportive family.

54. Mr Maina gave his evidence well and he too was articulate. The Tribunal accepts his evidence. From time to time it was clear that when speaking his jaw would lock. It appeared to be an inconvenience rather than debilitating, but was consistent with the evidence that the Tribunal heard in relation to his health issues and as described by he and Mr Amos Maina.

55. The Tribunal also considered the statements of Ms Kimondo. They are consistent with the evidence of the witnesses from whom I have heard.

    CONSIDERATION OF EVIDENCE AND CLAIMS

56. The issue for the Tribunal is to determine whether at the time of application, the Applicant satisfies cl.300.216 of Schedule 2 to the Regulations, and continues to meet cl.300.216 at the time of decision, as is required by cl.300.221. The Tribunal has also considered whether the cll.300.211, 300.214 and 300.215 were satisfied at the time of application, and continue to be satisfied at the time of this decision, as is required by cl.300.221.

1. Clause 300.211 requires that the Applicant intends to marry a person who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. The Tribunal accepts Mr Maina is an Australian citizen. Mr Mainia and Ms Kimondo are in regular contact with each other and each have been observed separately and been spoken to separately by their extended families who have confirmed their dedication to each other, their intention to marry and their plans for their future as a family. They have celebrated a dowry ceremony in Kenya which was confirmation of their dedication to each other, their families and their children in a loving relationship as a married couple and the Tribunal accepts that intention is continuing.

2. Accordingly, the Tribunal finds that at the time of application, the applicant met cl.300.211. Further, the Tribunal finds the applicant continues to meet cl.300.211 at the time of this decision.

3. Clause 300.214 requires that the applicant and the prospective spouse have met in person since each of them turned 18 years, and that the applicant and the prospective spouse are known to each other personally.

4. Mr Maina is aged 46 years and came to Australia in 2003. He was in a relationship with Ms Kimondo now aged 41 years prior to travelling to Australia. They have a child of their relationship now aged 14 years and they have been in regular communication since 2012. Call records confirm that communication and in particular from 1 June 2017 to 4 September 2017 they have been in daily contact often more than once per day. Having heard evidence from Mr Maina, his brother and sister‑in‑law the Tribunal accepts the daily contact continues to date.

5. Accordingly, the Tribunal finds that at the time of application, the applicant met cl.300.214. Further, the Tribunal finds the applicant continues to meet cl.300.214 at the time of this decision.

6. Clause 300.215 requires that the applicant establishes that the parties genuinely intend to marry and that the marriage is intended by the parties to take place within the visa period.

7. Mr Maina’s evidence, which I accept, was that he and Ms Kimondo are to be married at the Registry when she arrives in Australia. Mr Maina gave evidence that he has by a Notice of Intended Marriage lodged with the South Australian Office of Births Deaths and Marriages informed the Registry of that intention to marry. They had planned to marry in June 2018 had the visa application been approved. In her statement dated 16 February 2017 Ms Kimondo confirmed their engagement their joint commitment to each other and their intention to marry.

8. Mr Amon Maina’s evidence, which I accept, is that he is to be part of the celebration and is financing the wedding, and corroborated Mr Maina’s evidence that the wedding will occur when Ms Kimondo arrives in Adelaide.

9. Mr Maina, his brother and sister all gave evidence about the dowry ceremony which is an important tradition in Kenya, which is demonstrative of the proposed husband’s commitment to the marriage and the family. Mr Maina has engaged in a dowry ceremony confirming his dedication and commitment to his marriage with Ms Kimondo and his continuing support of their children. The Tribunal notes the substantial photographic evidence that has been supplied showing Ms Kimondo in the company of Mr Maina’s family including working on their farm.  These photographs support the evidence of Ms Kimondo’s commitment to Mr Mainia and his family consistent with the dowry ceremony.

10. Mr Maina detailed the plans that he and Ms Kimondo have in relation to their future religious followings, living arrangements and schooling arrangements for both children. The Tribunal notes that Mr Amos Maina and his wife had conversations with Ms Kimondo when in Kenya in February 2018, and those conversations as communicated to the Tribunal accord with the evidence Mr Maina.

11. The Tribunal is also satisfied from the evidence of Mr Maina and his brother about the arrangements that have been put in place for the wedding upon Ms Kimondo’s arrival in Australia.

12. Accordingly, the Tribunal finds that at the time of application, the applicant met cl.300.215. Further, the Tribunal finds the applicant continues to meet cl.300.215 at the time of this decision.

13. Clause 300.216 requires that at the time of the 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 marriage relationship. Persons in a marriage 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 shared life as husband and wife 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).

14. In considering an application for prospective marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in Regulation 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 the application, or time of decision, an investigation of the parties’ intentions with regards to the definition of ‘spouse’ in legislation may assist in determining the parties’ aspirations.

15. The Tribunal has had the benefit of taking oral evidence from Mr Maina, his elder brother and sister‑in‑law. The Tribunal has also had the benefit of statements from Ms Kimondo, Ms Agnes Muringo Kimondo, the younger sister of the visa applicant dated 13 September 2017, Bernard Ndegwa long‑term friend of Ms Kimondo being sworn statement dated 19.9.17, statutory declaration of Moses Maina Giatonga father of Mr Maina, all of which corroborate the evidence that has been given to the Tribunal.

16. Having regard to the oral evidence together with those statements and statutory declarations, the Tribunal makes the following findings.

    (a)Having considered the financial relationships as currently exist between the parties, albeit there is no pooling of finances, Mr Maina has been making financial contributions to Ms Kimondo from 2012. Initially that contribution related solely to support their son but after Ms Kimondo separated from and was abandoned by her former defacto partner, he made contributions to Ms Kimondo, her daughter and their son whenever possible. After their son moved to Australia his contribution to Ms Kimondo and her daughter was limited by the fact that he is in receipt of Centrelink payments because of his ill health.

    (b)The money transfer document dated 4 May 2018 from Mr Maina to Ms Kimondo in the sum of $136.45 AUD is further evidence which corroborates Mr Maina’s evidence of those regular contributions.

    (c)There is no evidence of joint property, which again is not surprising given the parties’ current living arrangements, however the Tribunal accepts that Mr Maina has now obtained suitable rental accommodation in anticipation of Ms Kimondo’s and her daughter’s arrival in Australia. The inability to pool finances under the current circumstances therefore is of little weight in this aspect of their relationship, but the Tribunal finds there is an intention when they are together to pool their finances with the intent to purchase a family home. That pooling will, of course, be frustrated to some extent because Mr Maina cannot work, but should he be able to return to his former employment that will be substantially assisted.

    (d)In considering the nature of the household, the Tribunal has considered the domestic living arrangements and daily routines for the caring of the children. There are no current shared household duties and this is to be expected given the circumstances of their current living arrangement. The Tribunal finds when married the parties intend to share the duties of the household and the Tribunal accepts that Mr Maina will, whilst still on Centrelink payments, be attending to the household duties and the care of the children. I accept Ms Kimondo intention to obtain employment. To that extent, the Tribunal accepts that the parties have very firm plans in relation to the future household arrangements but in its current circumstance places moderate weight on the evidence in support of the intended spousal relationship.

    (e)In assessing the social aspects of the relationship, the Tribunal notes in particular the evidence of Mr Maina, his brother and sister‑in‑law, together with Mr Maina’s father’s statutory declaration, all of which confirm, and the Tribunal accepts that Ms Kimondo has a close and loving relationship with those members of the Maina family currently residing in Kenya. As earlier indicated, this is also confirmed by photographic evidence and the observations in particular of Mr Amos Maina and his wife of Ms Kimondo, and her interactions with their family and her attendance at the dowry celebrations in 2018. The Tribunal also accepts the evidence of Mrs Maina which confirms the intention to integrate Ms Kimondo into their home and their circle of friends upon her arrival in Australia. The Tribunal is satisfied within the limitations of their geographic proximity that considerable weight is to be placed upon the family relationship and the involvement with Ms Kimondo in the household of the Maina family in Kenya and the planned arrangements when coming to Australia.

17. Also in assessing the nature of the commitment to each other, the Tribunal notes that there is regular daily telephone contact between the parties and their discussions include matters relating to the care of the children and the future arrangements for the family when they reside together in Australia.

18. The Tribunal notes the delegate found that the parties had not demonstrated sufficiently that they had maintained a level of contact with each other whilst apart or that they made an effort to meet each other physically in the past four years, and placed significant weight upon this aspect in the delegate’s consideration. The Tribunal respectfully disagrees with that finding. The daily communication between the parties is significant. However, Mr Maina’s health is relevant in considering why the parties have not been in each other physical presence. The Tribunal finds Mr Maina’s illness, has prevented him from travelling to Kenya. This is confirmed by the report of the treating medical practitioners to whom the Tribunal has referred. It is not surprising given his on-going battle with leukaemia and related issues, that Mr Maina has been unable to travel to Kenya to be with Ms Kimondo. The Tribunal accepts that he made inquiry with his treating medical practitioners in hope of travelling to Kenya but he was advised against doing so.

19. The failure of Mr Maina and Ms Kimondo to be in the physical presence of each other is not a factor which the Tribunal finds is adverse to the satisfaction of this criterion.

20. On the basis the above findings the Tribunal is satisfied that at the time of visa application the parties genuinely intended to live together as spouses as defined by s.5F of the Act and therefore cl.300.216 is met. Further, the Tribunal finds that at the time of this decision, cl.300.216 continues to be met.

21. Clause 300.221 requires that at the time of the decision the visa applicant continues to satisfy the criteria in cll.300.211, 300.214, 300.215 and 300.216. The Tribunal has made findings above that cl.300.211, 300.214, 300.215 and 300.216 continue to be met at the time of decision. In these circumstances, the Tribunal is satisfied that cl.300.221 is at the time of this decision satisfied.

22. The Tribunal considers the delegate’s decision in relation to the secondary visa applicant should be reconsidered, in light of the Tribunal’s findings about the primary visa applicant. 

    DECISION

23. 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 Subclass 300 (Prospective Marriage) visa:

    (a)Clause 300.211 of Schedule 2 to the Regulations;

    (b)Clause 300.214 of Schedule 2 to the Regulations;

    (c)Clause 300.215 of Schedule 2 to the Regulations;

    (d)Clause 300.216 of Schedule 2 to the Regulations;

    (e)Clause 300.221 of Schedule 2 to the Regulations.

    Brenton Illingworth
    Senior Member