May (Migration)

May (Migration) [2018] AATA 5770 (7 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Geoffrey Lawrence May
VISA APPLICANT:  Miss Nataliia Mikhailova
CASE NUMBER:  1713902
DIBP REFERENCE(S):  BCC2015/3415887
MEMBER:Hugh Sanderson
DATE:7 December 2018
PLACE OF DECISION:  Sydney
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:
·cl.300.211 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; and
·cl.300.221 of Schedule 2 to the Regulations.

Statement made on 07 December 2018 at 7:48am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – parties genuinely intend to live together as spouses – genuinely intend to marry – internet dating – online communication – consistent information – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 300.211, 300.214, 300.215, 300.216 300.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicant applied for the visa on 19 November 2015. 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.
The delegate refused to grant the visa on 13 June 2017 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the parties genuinely intended to live together as spouses.
Background
The review applicant was born in Australia and is an Australian citizen. He is currently 67 years old. He was in a previous relationship and separated from his partner 2006. There were no children of that relationship.
The movement records of the review applicant show that since 2014 he has travelled overseas as follows:
·From 21 April 2016 to 29 April 2016;
·From 7 August 2017 to 25 August 2017; and
·From 15 October 2018 to 22 October 2018.
The visa applicant was born in Russia and is currently 51 years old. She was previously married and divorced her husband in 2006. There are two children of that relationship, Petr who is currently 31 years old and Ivan who is currently 27 years old. Petr was granted a Skilled Independent visa as a dependent of his wife and has resided primarily in Australia since 2013.
The movement records of the visa applicant show that she has been in Australia over the following periods:
·From 8 September 2013 to 21 November 2013;
·From 25 February 2014 to 20 May 2014;
·From 22 May 2014 to 20 August 2014;
·From 22 August 2014 to 21 November 2014;
·From 21 January 2015 to 21 April 2015; and
·From 28 May 2018 to 23 June 2018.
The visa applicant’s first visit to Australia was to spend time with her son and daughter-in-law who had just had a child. While in Australia, the visa applicant used an internet dating site and was introduced to the review applicant. They met in person for the first time on 8 April 2014. A relationship developed after that time and continued after the visa applicant returned to Russia.
The review applicant proposed marriage to the visa applicant on 8 April 2015. The visa applicant did not answer immediately and waited until she returned to Russia before she accepted the proposal on 5 August 2015.
The visa applicant had applied for a further Visitor visa to enter Australia in July 2015, however, this was refused by the Department. It was noted that the visa applicant had not disclosed any relationship with the review applicant in that Visitor visa application. It was explained that she had not done so because she felt that she might be considered a potential over stayer if she said she was engaged to be married.
Various documents were provided in support of the application including telephone records, photos of the parties together, and evidence of travel together including the review applicant travelling to Bangkok to spend time with the visa applicant in April 2016. The parties were interviewed by an officer from the Department.
The delegate who considered the application noted the following issues:
·There was little information that the financial aspects of the relationship indicated a genuine relationship;
·Although it was claimed that the visa applicant was living with the review applicant while she was in Australia for a 12 month period, there was no independent information to corroborate this claim;
·Only statements by the visa applicant’s son and daughter-in-law had been provided to indicate that the relationship were known by any other people;
·There is little information which would indicate the review applicant has introduced the visa applicant to his family or any friends in Australia;
·The review applicant claimed that he had not introduced the visa applicant to his family and friends in Australia as he did not want to waste his time representing the relationship to others;
·The parties have not made any attempt to spend time with each other since April 2016;
·In explaining why they had not spent time together, the visa applicant said that it was because her mother was ill and eventually passed away, while the review applicant said he believed the visa would be granted sooner and did not mention anything about the visa applicant’s mother or her death;
·There was little information which would indicate that the parties have a common language and communicate only through email with an automatic translating service; and
·Although the parties provided evidence of online communication with each other, they did not display a level of understanding of each other’s lives which would be expected of people in a genuine relationship.
Taking these matters into account, the delegate was not satisfied that the parties did genuinely intend to live together as spouses and therefore did not meet the criteria in cl.300.216. Accordingly, the application was refused.
Information to the Tribunal
The review applicant appeared before the Tribunal on 2 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.
The parties provided consistent information as to various aspects of their relationship. This included the activities they participated in together in Australia and in Thailand, the living arrangements the visa applicant had while she was in Australia, financial aspects of their relationship, and information as to different aspects of their relationships with other family members. They provided information of each other’s financial situation and personal issues such as various medical conditions they have had addressed. The visa applicant spoke directly to the review applicant showing that she had sufficient knowledge of English which allowed the parties to communicate appropriately.
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 parties genuinely intend to live together as spouses.
Does the visa applicant intend to marry an eligible person?
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.
The visa applicant has stated that it is her intention to marry the review applicant who is an Australian citizen.
Accordingly, the requirements of cl.300.211 are met at the time of the application and continue to be met at the time of this decision.
Have the applicants met in person and are they known to each other personally?
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.
The parties are both over the age of 18 and have met each other in Australia when the visa applicant held a Visitor visa. Photos have been provided of the parties together in Australia. The parties have also met each other Thailand and photos have been provided of themselves together on these occasions.
Therefore, at the time of application, the requirements of cl.300.214 were met and continue to be met at the time of this decision.
Do the parties genuinely intend to marry?
Clause 300.215 requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period.
The parties did not make any formal arrangements for a wedding ceremony to take place at the time the application was filed. As the review applicant was aware there would be period of time in which to have the wedding ceremony, and as neither the visa applicant nor the review applicant wanted any elaborate ceremony, they had the intention of organising the marriage ceremony only after the visa is granted.
The Tribunal accepts that at the time of the application and at the time of the decision the parties genuinely intend to marry. That marriage ceremony will only be organised after the visa is granted as it is likely to be only a simple ceremony with only immediate family and a few friends attending. The parties are aware of the time limit within which the marriage must take place and the marriage ceremony is planned by the parties to take place within the time period specified under the legislation after the visa is granted.
The Tribunal finds that at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a). The proposed date for the marriage is within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met and continued to be met at the time of this decision.
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 parties have not yet married and live in different countries. It is not surprising, therefore, that they have not pooled their financial resources or have any joint assets or liabilities. The parties provided consistent information as to each other’s financial situation indicating they have discussed their financial affairs with each other. The review applicant has provided financial assistance to the visa applicant to allow her to have dental treatment in Russia. He met most of the expenses when the parties travelled to Thailand.
Although limited, due to the fact that the parties live in separate countries, the financial aspects of the relationship do indicate the parties are in a genuine relationship and do genuinely intend to live together as spouses. They have shared their financial expenses while they were living together in Australia and the review applicant continues to provide financial support to the visa applicant.
Again, because they live in separate countries there is limited information to indicate that the parties have established a household together. After their relationship started in Australia, the visa applicant spent increasing amounts of time staying with the review applicant in his home. The number of days and nights each week the visa applicant stayed with the review applicant increased as their relationship continued. By the time she returned to Russia she was spending the majority of her time living with the review applicant in his home. The visa applicant was aware of the living arrangements in the review applicant’s home, including details of the person who rented accommodation in the review applicant’s home.
The arrangements of the parties when the visa applicant was staying in the review applicant’s home supports a finding that the parties genuinely intend to live together as spouses.
The parties have travelled together to Thailand. They have travelled together in Australia as a couple and their relationship is recognised by their family members. Statements have been provided by the visa applicant’s son and daughter-in-law in support of the application. The review applicant claimed that the relationship is recognised by his family members, however, he has not provide any statements from them to confirm this. The review applicant provided a number of photos of himself and the visa applicant together, however, many of these photos just pictured the review applicant visa applicant together with no other people. They do not indicate that the parties participated in any social gatherings together as a couple or that their relationship is recognised as a couple.
The review applicant explained the lack of supporting information as to the social aspects of the relationship by claiming that he did not have a close relationship with his brother and might see him once a year. Although he has a closer relationship with his mother, there had been no appropriate occasion for the visa applicant to meet her. He does not have many friends and spends most of his time on his boat.
The Tribunal places some weight on the statements provided by the visa applicant’s son and daughter-in-law as to the social recognition of the relationship. Overall, although limited, there is some information which would indicate that the social aspects of the relationship support a finding that the parties genuinely intend to live together as spouses.
The parties first met in April 2014 when the visa applicant was in Australia on a Visitor visa. She finally returned to Russia in April 2015. For the last six months while the visa applicant was in Australia, she spent majority of her time living at the review applicant’s home although she continued to spend time with her son in his home assisting her son and his wife in caring for their child. After the visa applicant returned to Russia the parties became engaged in August 2015. Have now been engaged to be married for more than three years.
The parties displayed a degree of knowledge of each other’s personal affairs indicative of having regular communication with each other. The parties were aware of each other’s current and past work and details of their relationship with each other’s family members. The knowledge they had of each other’s affairs indicated they are in regular communication with each other and provided the degree of companionship and emotional support which would be expected in a genuine relationship.
The parties provided information as to their plans for their future together. This included details of not just when they would be married, or why they plan to be married in Australia, but also future plans such as selling a property of the review applicant to be able to fund their life in Australia. They provided details of medical procedures they have both undergone indicating the degree of emotional support they provided to each other over that period.
Overall, the Tribunal finds that the parties provide the degree of companionship and emotional support which would be expected of a couple who are committed to each other and genuinely intend to live together as spouses.
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 finds that at the time of this decision the parties continue to genuinely intend to live together as spouses.
Do the parties continue to meet time of application requirements?
Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses.
As set out above, the Tribunal is satisfied that at the time of the application the visa applicant meets the criteria in cl.300.211, 300.214, 300.215 and 300.216 and continues to meet this criteria the time of the decision. Accordingly, cl.300.221 is met.
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 visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
·cl.300.211 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; and
·cl.300.221 of Schedule 2 to the Regulations.
Hugh Sanderson
Member

[2018] AATA 5770

7 December 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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