MEBRAHTU (Migration)

[2019] AATA 2225

MEBRAHTU (Migration) [2019] AATA 2225 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss SHEWIT GEBREMESKEL MEBRAHTU

VISA APPLICANT:  Mr Kidane Hagos GEBREMEDHIN

CASE NUMBER:  1618505

DIBP REFERENCE:  BCC2015/1650952

MEMBER:Rosa Gagliardi

DATE:26 February 2019

PLACE OF DECISION:  Melbourne

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; and

·cl.300.221 of Schedule 2 of the Regulations.

Statement made on 26 February 2019 at 1:19pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – limited financial resources – joint travel and periods of cohabitation – spontaneous evidence from close friend of sponsor – 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, 300.216, 300.221

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 applied for the visa on 9 June 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. 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.600.216.

3. The delegate refused to grant the visa on 11 October 2016 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because it was considered that the applicant and the sponsor did not genuinely intend to marry and live together as spouses.

4. The review applicant/sponsor appeared before the Tribunal on 26 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s brother, Mr Alem Mebrahtu and a friend of the sponsor, Roushan.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

7. The parties met when the sponsor went to Ethiopia for a holiday with her siblings, near Mekele.  At that time the applicant was only 16 years of age.  The sponsor was 18 years old.  The relationship started when the applicant met the sponsor in a local restaurant and commented that he thought she must be new to the area.  They started discussions and he then called her to ask to have a coffee together.  The sponsor stated at hearing that they had not married because all her family were in Australia.  She stated it would be easier for her if the parties married in Australia.  Her parents are deceased but her siblings and nieces/nephews all live in Australia and she wanted them to be part of the celebrations. 

8. The sponsor returned to Ethiopia in 2013 with her two brothers after maintaining contact for several years.  Their relationship developed and the applicant’s and sponsor’s family members attended the engagement.  The engagement was held in December 2013 and was a small one. 

9. Since the engagement the sponsor has returned to Ethiopia in 2014, 2016 and 2017.

   Do the parties genuinely intend to live together?

10. 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.

    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 financial aspects of the relationship

11. The sponsor is earning a casual salary with supplementation from Centrelink payments.  The applicant lives in a rural area tending farm animals.  Their circumstances are therefore such that it would be unreasonable to expect them to have purchased property or other major assets together.  Given the sponsor’s earnings are modest, the Tribunal places significant weight on the number of times the sponsor has garnered her limited resources to visit the applicant as a sign of her commitment to the applicant.  In addition, the sponsor has provided evidence of remittances to the applicant.

    The nature of the household

12. The Tribunal accepts that the parties live together at the residence of the applicant when the sponsor visits.  Initially, the Tribunal had concerns that they would live together without being married given they belong to the Ethiopian Orthodox Church.  It was explained by the migration agent that both the applicant and the sponsor are orphaned and do not have parental or familial advocate. In the rural setting in which the applicant lives they are therefore considered outcasts and there is no expectation that they would adhere to strict traditional mores. 

13. Copies of hotel receipts have also been submitted as evidence of the parties’ joint travel and periods of cohabitation and the Tribunal places weight on these. 

14. From the evidence, the Tribunal is satisfied that the parties share a household in circumstances where they are not able to share their everyday chores but only because they are geographically apart.

    The social aspects of the relationship

15. The Tribunal places weight on the sponsor’s brother’s evidence at hearing that he attended the engagement and that it was held in the company of some neighbours.  He also spoke about the deleterious effects that being separated from the applicant was having on the sponsor because the applicant was the only person she had ever had a relationship with, given that she was quite young when she met the applicant.

16. The Tribunal has also relied on photographic material submitted by the parties, depicting them as a couple and in outdoor settings. 

17. In remitting this decision the Tribunal has relied heavily on the spontaneous evidence given by the sponsor’s closest friend in Australia, Roushan (sp?) over the phone in an impromptu situation, as before the hearing the sponsor was not aware that the Tribunal would wish to speak to her.

18. Roushan gave credible evidence of the daily impact the separation was having on the sponsor and how the stress of her circumstances meant that she was unable to concentrate on her nursing studies which she had now put on hold.  Roushan also explained that the sponsor had had an accident due to the pressure of being on her own without the applicant.  Significantly, Roushan explained to the Tribunal that the sponsor had siblings in Australia but that on the whole she was on her own and she was the closest friend the sponsor had.  Roushan explained that she had witnessed first-hand how the sponsor’s well-being deteriorated because she did not have the support of the most significant person in her life in Australia with her.  The sponsor’s general practitioner has also provided a letter to state that the sponsor was not dealing with the uncertainty of being separated from the applicant and that her mental health is affected.

19. In addition both Roushan and the sponsor’s brother spoke realistically about the parties’ plans to have a family together and that this was a matter that the sponsor had spoken to them about on a frequent basis.

20. The Tribunal acknowledges that other evidence is limited but the Tribunal relies strongly on the credibility of the sponsor and applicant as well as the persuasive evidence submitted by the sponsor’s brother and her friend Roushan.

    The nature of the commitment to one another

21. The sponsor discussed at hearing that the applicant provided her with significant support over the phone and that he was a great source of solace when she became stressed and despondent about their separation.  The Tribunal has extensive evidence of online communication and telephone communication between the parties and that communication appears to be realistic and frequent. 

22. The Tribunal is satisfied that the relationship is a long-standing one and has been maintained and developed through the parties meeting in Ethiopia on a reasonably frequent basis and with regular contact.  The Tribunal considers that the evidence submitted is persuasive that the parties provide one another with support and companionship and that they see the relationship as a long-term one.  In addition, the Tribunal is satisfied that the parties are not living separately and apart on a permanent basis and that when they have the opportunity to live together they will do as spouses within the meaning of s.5F.

23. The Tribunal is also satisfied that the parties have a shared vision of their future together and that they have a genuine intention to live together as spouses, and that they did so at the time of application, therefore cl.300.216 cl.300.221 are met.

24. 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

25. 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; and

    ·cl.300.221 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member