Mutter (Migration)

[2023] AATA 930

Mutter (Migration) [2023] AATA 930 (26 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmed Mutter

VISA APPLICANT:  Ms Maryam Awadh

CASE NUMBER:  2210227

HOME AFFAIRS REFERENCE(S):          BCC2021/153995

MEMBER:Sean Baker

DATE:26 March 2023

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 300.214 of Schedule 2 to the Regulations

Statement made on 26 March 2023 at 8:58pm

CATCHWORDS
MIGRATION –Prospective Marriage (Temporary) (Class TO) visa – subclass 300– applicants have met in person – the parties are known to each other personally – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 300.214

CASES
Berenguel v MIAC [2010] HCA 8

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 Home Affairs to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 24 January 2021. 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 (Cth) (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.

3. The delegate refused to grant the visa on 25 May 2022 on the basis that the visa applicant did not satisfy cl 300.214 of Schedule 2 to the Regulations because the review applicant and the visa applicant had not met in person.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the criteria in dispute is satisfied.

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

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. The delegate found that the applicants had met only on the internet and had not physically met and concluded that the applicant therefore did not satisfy this provision.

8. In July 2022 the review applicant provided an updated notice of intention to marry (NOIM) as well as photographs. He included with this information a short statement which I reproduce here in full:

   I would like the decision to be reconsidered due to the recent changes that have occurred.

   Maryam and I have a NOTICE OF INTENDED MARRIAGE by the Commonwealth of Australia from my mosque leader, I took it with me for Maryam to sign.

   From Australia I bought a gold necklace and a engagement ring.

   I travelled to Turkey and have met with Maryam.

   I stayed at a hotel, and went out with Maryam.

   We celebrated our engagement by heading to the photography to take memorable photos.

   We went out to the mosque, and made our prayers as a ritual to start our life together.

   I have included here photos of my travel to Turkey where Maryam is residing until her Visa is granted to come to Australia so we can celebrate our wedding.

   We went shopping, Decided together Maryam’s dress for our engagement and my clothes too for the engagement.

   We went on lake walks and enjoyed our conversation and drinks too.

   We also went out at night for walks.

   We went to restaurants and cafes. We enjoyed the food, drinks and we exchanged conversation about our likes, dislikes and future adventures and goals, we are both hopeful for our future together

9. The review applicant became understandably distressed at the delay in processing the review application. The time of the second date for the marriage on the NOIM passed. The review applicant experienced further distress.

10. The case has now been constituted. I have moved as quickly as possible to remit this case to the Department.

11. Given the above, I decided a hearing was not necessary in this case. If the review applicant had attended a hearing, I would have apologised to him for the delay in having his case decided.

12. I have considered the information the applicant has provided. He travelled to Turkey in 2022 and met the visa applicant in person. I have compared the photographs provided with the review applicant’s Australian passport and the visa applicant’s Iraqi passport, personal card and her Turkish ID card to confirm that these are the parties in the photographs. I accept the above submission from the review applicant as a true account of his travel to Turkey. I find therefore that the applicants have met in person last year. At the time they met both parties were over 18. Having regard to the information before me, the parties are known to each other personally.

13. This criterion is amenable to being satisfied after the time of application: Berenguel v MIAC [2010] HCA 8.

14. The requirements of cl 300.214 are met.

15. 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

16. 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

    Sean Baker
    Member