Mondi (Migration)

[2018] AATA 4758

Mondi (Migration) [2018] AATA 4758 (12 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Guiseppe Mondi

VISA APPLICANT:  Ms Elvie Marcos

CASE NUMBER:  1711741

DIBP REFERENCE(S):  BCC2016/2873495

MEMBER:P. Maishman

DATE:12 October 2018

PLACE OF DECISION:  Perth

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.300.214 of Schedule 2 to the Regulations

·cl.300.216 of Schedule 2 to the Regulations

Statement made on 12 October 2018 at 3:08pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – genuine relationship – long distance relationship – sponsor visited applicant – photographs with applicant’s family –social recognition of the relationship – credible witnesses

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15A Schedule 2 cls 300.214, 300.216

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 30 August 2016. 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.300.214 and cl.300.216.

3. The delegate refused to grant the visa on 15 May 2017 because the delegate was not satisfied that the review applicant and visa applicant were known to each other personally or that they genuinely intended to live together as spouses and so did not satisfy cl.300.214(2) and cl.300.216 of Schedule 2 to the Regulations. The delegate did not assess the application against the other Subclass 300 criteria.

4. The review applicant appeared before the Tribunal on 18 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence with the assistance of an interpreter of the Tagalog and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the parties are known to each other and whether they genuinely intend to live together.

8. The review applicant gave the Tribunal a copy of the delegate’s decision record with his application. The Tribunal had before it a copy of the Department’s file. The following summary is taken from the Department’s file and the delegate’s decision record:

   a.The review applicant is a 48-year-old male Australian citizen residing in Australia. The visa applicant is a 41-year-old female citizen of the Philippines working in Dubai;

   b.The parties claim to have met in person for the first time on 5 January 2016 in the Philippines. They became engaged and committed to a shared life together to the exclusion of all others on 5 March 2016. They planned to marry on 4 April 2017.

   c.On 14 May 2017 the Department interviewed the visa applicant and sponsor.

   d.The parties claim to have been introduced by a mutual friend and commenced their relationship with SMS messages in early 2015. They claim to have started video contact via Skype on 1 March 2015. They first met in person on 5 January 2016 when the review applicant travelled to the Philippines.

   e.They became engaged and intended to marry on 4 April 2017. The visa applicant applied for a Subclass 300 (Prospective Marriage) visa on 30 August 2016.

9. The review applicant provided the Tribunal a number of travel itineraries showing his travel from Perth to Manila on 9 March 2018 and return on 27 March 2018; an accommodation booking at the Garden Orchid Hotel and an invoice showing an arrival date of 10 March 18 and departing 17 March 18; a number of photographs showing the parties in the Philippines and a photo of what they submit is their engagement ring.

10. The Tribunal acknowledges the Department’s concerns about inconsistencies in the parties’ responses in relation to their personal knowledge of each other, their plans for the wedding, and their future plans as husband and wife. The Tribunal had the opportunity to interview the review applicant in person and found his responses to questions appeared to be frequently embellished or exaggerated. For example the review applicant claims he visited the Philippines for a month in 2016. The Tribunal challenged his recollection of the time he was away from Australia and pointed out to him that the entries in the passport he presented suggest he was away for little more than two weeks. The Tribunal found the visa applicant was reserved in her responses during her telephone oral evidence, with the sponsor eager to assist to clarify minor issues. The Tribunal noted that both the review applicant and the visa applicant appeared to be very nervous and conscious of presenting a united consistent story to the Tribunal. The Tribunal is satisfied that neither the review applicant nor the Visa applicant was deliberately untruthful and accepted their evidence as credible. 

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

11. 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.

12. Evidence contained on the Department’s file confirms the visa applicant and review applicant were over 18 years old when they claim to have first met in January 2016. The review applicant provided the Department a copy of his passport showing he went to the Philippines for a little over 2 weeks in January 2016. The visa applicant states she first met the sponsor in person in January 2016 in the Philippines. The parties provided a number of photos with the visa application showing them both together. The Tribunal finds on the documentary evidence that the parties were over 18 and met each other in person on 5 January 2016. The Tribunal finds the parties have met in person since each of them turned 18 and they are known to each other personally.

13. Therefore, at the time of application, the requirements of cl.300.214 were met.

    Do the parties genuinely intend to live together as spouses?

14. 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.

15. The review applicant said he had sent some money to the visa applicant in order to contribute to Internet costs. He said however that she works and has her own wage and they don’t discuss their finances. When they have been in the Philippines together he has paid for some things and she has paid for others. For example he paid for the accommodation and the birthday cake for the Visa applicant’s mother’s birthday. The visa applicant had some money on a preloaded cash card and used that to pay for flights for him from Manila to her home city. The visa applicant said that when she is with the review applicant he paces some things and she pays fathers. She feels they share evenly when they have been together. She has her own money from her work so she and the review applicant do not discuss how much they are earning. When she comes to live with the review applicant she expects him to look after her. She hopes to find some work through the review applicant’s friends who work in nursing homes. The Tribunal gives some weight to the review applicant’s and visa applicant’s financial arrangements in determining if they genuinely intend to live together as spouses.

16. The review applicant provided Form 888 statutory declarations from his brother Maurizio Mondi and mother Virginia Mondi. Both confirm they are aware of the relationship between the review applicant and the visa applicant and they have both spoken to the visa applicant on Skype. The Department’s file contains a number of photos of the review applicant visa applicant together with the visa applicant’s family. At hearing the review applicant showed the Tribunal his Facebook account on his telephone. The Tribunal did not take copies of the Facebook account but noted regular interaction between the review applicant and the visa applicant and the review applicant’s Facebook acquaintances. The Tribunal noted numerous acknowledgements of the review applicant’s declaration of his engagement to the visa applicant. The visa applicant’s employer provided a statement confirming his support for the visa applicant’s relationship with the review applicant. The Tribunal accepts that the review applicant and the visa applicant represent themselves to other people as being in a relationship and that other people see them as being in a relationship. The Tribunal gives some weight to the review applicant’s and visa applicant’s social recognition has being in a relationship.

17. The review applicant purchased an engagement ring from cash received through weddings at the casino. He was unable to provide the Tribunal a copy of the receipt but did provide a copy of a ring being put on a finger. The parties gave evidence that they talk as often as I can fire electronic means. The review applicant and visa applicant are somewhat restricted in how often they can meet up because of the visa applicant’s work and her limited vacation opportunities. When the visa applicant is allowed to come to Australia lived together in the review applicant’s house, get married and hopefully start a family soon.

18. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine future intention, the Tribunal is satisfied that at the time of application, and at the time of this decision, the parties genuinely intend to live together as spouses and therefore cl.300.216 is met.

19. 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

20. 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.300.214 of Schedule 2 to the Regulations

    ·cl.300.216 of Schedule 2 to the Regulations

    P. Maishman
    Member