OSMAN (Migration)

OSMAN (Migration) [2017] AATA 1859 (5 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms IBTIHAJ OSMAN
VISA APPLICANT:  Mr Abdulrazzak Alothman
CASE NUMBER:  1614213
DIBP REFERENCE(S):  BCC2014/2699051
MEMBER:Robert Wilson
DATE:5 October 2017
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.300.212 of Schedule 2 to the Regulations;
· cl.300.212A of Schedule 2 to the Regulations;
· cl.300.213 of Schedule 2 to the Regulations;
· cl.300.214 of Schedule 2 to the Regulations;
· cl.300.215(a) and (b) of Schedule 2 to the Regulations;
· cl.300.216 of Schedule 2 to the Regulations;
· cl.300.221 of Schedule 2 to the Regulations; and
· cl.300.221A of Schedule 2 to the Regulations.

Statement made on 05 October 2017 at 12:44pm

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Intention to marry – Intent to cohabitate – Consistent and credible evidence – Genuine relationship

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 300.211, 300.212, 300.212A, 300.213, 300.214, 300.215, 300.216, 300.221, 300.221A

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 14 October 2014. 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.
The delegate refused to grant the visa on 29 July 2016 on the basis that the visa applicant did not satisfy cl.300.216 and 300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the parties genuinely intend to live together as spouses.
The review applicant appeared before the Tribunal on 28 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mounzer Osman, who is the review applicant's father and Ms Iman Harmouch, a friend of the review applicant. The visa applicant gave evidence by phone from Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
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 cl.300.216 and 300.221 of Schedule 2 to the Regulations are met.
The Tribunal finds that the primary applicant (the applicant) and the review applicant (sponsor) provided straightforward, consistent and credible evidence, which was corroborative. The two witnesses also provided straightforward and credible evidence.
The applicant, Mr Abdulrazzak Alothman, was born on 10 December 1995. The sponsor, Ms Ibithaj Osman, was born on 23 February 1996 in Australia. She is an Australian citizen.
The applicant and the sponsor met in Lebanon on 26 March 2014 when the sponsor travelled with her family, from Australia to Lebanon. It was love at first sight for both of them. They had family lunch gatherings together. Not long after getting to know each other the applicant proposed to the sponsor and she said, yes, straightaway. On 13 April 2014 they had a small engagement for family and friends to celebrate their love and commitment to each other. They agreed to marry.
Not long after the sponsor returned to Australia to start preparing for their wedding, she started designing and making her wedding dress as this will be the most special day of her life.
The most recent Notice of Intended Marriage was lodged on 18 August 2017 for the marriage of the applicant and the sponsor to be conducted on 10 December 2017 at Masjid As-Sunnah, in Lakemba, NSW. The authorised marriage celebrant is Imam Abdullah Zoud, Registered Number No. 29427, who has provided a copy of the Notice of Intended Marriage and letter accompanying it.
The applicant and sponsor constantly speak on the phone whether on Viper, Skype or Tango. They talk for hours without realising how long they have been on the phone. The sponsor cannot wait for the applicant to come to Australia so they can be reunited with each other.
Does the 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 Tribunal accepts that the applicant intends to marry the sponsor who is an Australian citizen. Accordingly, the requirements of clause 300.211 are met.
Accordingly, the requirements of cl.300.211 are met.
Was the applicant 18 at the time of application?
Clause 300.212A requires that the (visa) applicant is sponsored by the sponsor and has turned 18 at the time of application. The applicant was born on 10 December 1995 and he turned 18 in 2013. The time of application is 14 October 2014. So, the applicant had turned 18 before the time of application. Further, the applicant is sponsored by the sponsor. On the evidence before it the Tribunal finds that cl.300.212A is met.
On the evidence before it the Tribunal finds that cl.300.212A is met.
Is the sponsorship prohibited?
Clause 300.212 requires that at the time of application the sponsor is not prohibited from being a sponsor in certain circumstances where she was granted a woman-at-risk visa in the five years immediately preceding the current visa application.
There is no evidence before the Tribunal that the sponsor was granted a woman-at-risk visa in the five years immediately preceding the current visa application.
On the evidence before it, the Tribunal finds that the review applicant is not prohibited from being a sponsor, and therefore cl.300.212 is met.
Is the applicant sponsored as required?
Clause 300.213 requires that at the time of application the applicant is sponsored by the review applicant, and that the sponsor has turned 18.
The sponsor has provided her NSW Birth Certificate which shows that she was born on 23 February 1996, at the St George Hospital, Kogarah, NSW, and the time of application was 14 October 2014.
On the evidence, at the time of application, the applicant is sponsored by the prospective spouse, and the prospective spouse has turned 18. Therefore, Clause 300.213 is satisfied.
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 applicant and the sponsor were both 18 or over when they met for the first time in Lebanon on 26 March 2014. The reasons about when, where and how the parties met, their ages when they met and whether they are known to each other personally, have been provided above. Therefore, at the time of application, the requirements of cl.300.214 were met.
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 Tribunal is satisfied that when the parties applied for the visa on 14 October 2014, they genuinely intended to marry. They were engaged on 13 April 2015 (see copies of the applicant and sponsor and relatives at the engagement party, with captions). The applicant gave the sponsor and engagement bangle and an engagement ring.
Further, their first Notice of Intention to Marry was dated 1 February 2015; the second NOIM was dated 15 October 2015, and the third dated 5 February 2016. They presented the fourth, last, NOIM at the Tribunal hearing. The applicant and the sponsor both new that they were engaged three years five months and 15 days prior to the Tribunal hearing. They are very keen to be married.
The sponsor and members of her family have travelled to Lebanon on two occasions to meet the applicant and his family members. The first occasion was when the sponsor left Australia on 26 March 2014 and returned back on 7 May 2014, and the second occasion when she departed Australia on 20 July 2016 and arrived back on 12 August 2016. During these periods mounting to roughly 63 days together, they spent the days and nights together, except when they were asleep.
They have plans to rent a house in Sydney after their marriage, however initially when the sponsor comes to Australia, he will live in his sister’s house until he and the sponsor are married. The applicant intends to study English at Bankstown TAFE and then he will study to qualify to be an electrician in Sydney. He has already qualified in Lebanon and he works as an electrician on a casual basis. He has his certificate, but wants to become more specialised. The applicant will work for the sponsor’s father initially, on a farm after the marriage.
The sponsor has sent six Western Union transfers to the applicant in the sum of AUD $10,694.71.
The parties intend to marry within the visa period.
The couple presented themselves at the Tribunal hearing as future husband and wife. This was strongly supported by the witnesses.
Ms Iman Harmouch, has been the sponsor’s friend for 10 years. They are best friends. She knows about the sponsor’s relationship with the applicant. She said that she believes it is a genuine relationship, they have been waiting three years to be married and it has not been easy. They love each other. The witness stated that the sponsor talks to the applicant every day. She sees him online. The witness is happy as something good has happened for the sponsor.
The sponsor’s relationship with the applicant is genuine. The sponsor has never given up. She really loves the applicant. The sponsor just wants to be with the applicant. Hopefully that will be soon.
The Tribunal accepts this evidence.
Mr Mounzer Osman, the sponsor’s father, provided oral evidence to the Tribunal. He has met the applicant, his daughter’s fiance in Lebanon. The father indicated that he had told the applicant’s mother and sister that they can live in his house in Lebanon. They are very happy there. The father said his daughter, the sponsor and love at first sight. The applicant asked the father for his daughter’s hand in marriage. The father said to the applicant that he would have to ask the sponsor to marry him and if she said yes, the applicant should come to see the father. The father gave the applicant his daughter’s hand in marriage. The families in Lebanon had a meal at Castle 32 Restaurant in Tripoli. The restaurant is owned by the father’s nephew.
The father said that the applicant has now finished his ‘electricity’ certificate in Lebanon. He will work as an electrician. The father owns a chicken farm in Sydney.
Mr Mounzer Osman also provided a statutory declaration sworn on 21 September 2015 in which he wrote that he is a director of Almarwa Pty Ltd. He wrote that when the applicant arrives in Australia safely he will be working at Almarwa Pty Ltd. as a full-time employee and his wages will be set upon his arrival.
The Tribunal accepts this evidence.
Further statutory declarations by witnesses were also provided, as follows.
Mr Mustafa Osman, Director, store manager, declared in his statutory declaration dated 18 October 2014, that he is the sponsor’s brother and he is married to the applicant’s sister. He sees the sponsor almost every day and he saw the applicant when he went to Lebanon on.
He wrote that the applicant and the sponsor are both honest persons. He is sure their relationship is genuine and honest. Are both in love in the relationship is continuing.
The Tribunal accepts this evidence.
Mr Aboubakis Slieman, farm owner/manager, wrote in his statutory declaration declared on 20 October 2014, he is the brother-in-law of the sponsor. He sees her every day. He has known the applicant for almost 3 years now, and he met him in person when he went to Lebanon.
The witness believes that the sponsor and the applicant are great couple in the relationship is genuine. They fell in love and they got engaged. The relationship is continuing.
The Tribunal accepts this evidence.
Ms Diala Kahil declared her statutory declaration on 8 March 2017. She has known the sponsor since birth. The witness’ and the sponsor’s parents were friends a few years before they were born. The witness is in contact with the sponsor almost every day, besides the face-to-face contact twice a week in class. The witness is in contact over the phone with her constantly. The witness has known the sponsor’s partner (the applicant) for three years, that is, since they were engaged. She has met the witness when she travelled to Lebanon.
The witness believes a relationship is genuine because of the dedication and care between the applicant and sponsor. The witness has known of the engagement since the beginning and saw the sponsor’s excitement. Three years later and she still looks and feels the same way. The sponsor is always speaking of her fiance, they exchanged feelings and share fruitful events throughout their days. I also share negative experiences and gain advice from one another. Their relationship is healthy as there is always room for understanding and compromise. She believes a relationship to be continuing as the sponsor and her partner shown no interest in other potential partners when suggested by friends.
The Tribunal accepts this evidence.
Laila Dib, mother, has known the sponsor for over 10 years as family friends. She came to know the applicant through the sponsor and when she went to Lebanon she met him in person a couple of times. She knows that the applicant and sponsor have a good and genuine relationship because she has seen love and trust between them. She has spoken to both of them and she sure that they were born to be together. They both described each other in a very beautiful and passionate way. The witness believes they are deeply in love want to get married to each other. They have a complete understanding of each other’s personality and have both planned the future together, especially regarding their marriage day. They have been engaged for a long time and only true love made them patient because only true love is what lasts.
The Tribunal accepts this evidence.
Ms Iman Harmouch, teacher, who gave oral evidence also provided written evidence by way of statutory declaration declared on 27 September 2017 as follows. The witness has known the sponsor for a period of 10 years through school. She is in contact with her on a daily basis through text messages and calls and she sees the sponsor about three times a week.
The witness has seen the applicant since they were engaged in April 2014. In December 2015 the witness went on a holiday to Lebanon and the sponsor sent presents with her to give to the applicant. She met the applicant in person and gave him the gifts. Upon returning to Australia, the applicant also sent presents to the sponsor with the witness. In December 2016, the witness went on another trip to Lebanon. The sponsor again sent gifts to the applicant. Once again the witness met the applicant and his family, and her family had lunch together when she gave him the gifts. The applicant also attended the witnesses engagement on the same trip.
The witness certainly believes that the applicant’s and sponsor’s relationship is genuine and continuing. The reasons are because ever since they were engaged in April 2014 the witness has never seen a couple happier than they are, and in love, as they are. The sponsor, who is her best friend tells her everything that goes on between her and the applicant and all she perceives is an ecstatic and blessed relationship between them. She senses this from her tone of voice when she utters his name. Her face close like a beam of sunlight whenever she receives a text message or phone call from him. Many occasions when the witness was with the sponsor she was speaking to the applicant and she recognise that she was smiling and blushing uncontrollably. The witness realise that the applicant was telling the sponsor something romantic in order for her to blush and smile so much. The applicant has also performed the witness about her plans for the big day, how she wants to turn out how she can’t wait for him to come to Australia so that their big day can materialise. The sponsor has also told the witness about her dream future with the applicant, the type of house she wants to live in and how many children she would like to have. Whenever the sponsor talks about her and the applicant’s future together, she gets overexcited and begins to space out when the witnesses with the sponsor and she is not talking to the applicant, the witness senses the sadness in her eyes and the tear behind her smile. In saying all of this, the witness believes their relationship is genuine and continuing as the applicant and the sponsor very much in love and over the years have become more and more attached each other.
The witness has known the sponsor for many, many, years. Never did she think that their friendship would grow so close.
The sponsor cares very much about her family and friends, they mean the world to her. Over the years the witness has known the sponsor, the sponsor has never intentionally hurt anyone and she has many people who care for her, especially the applicant who would do anything for her to make her happy and see her smile. Over the past few months the witnesses been seeing sponsor with a sad smile on her face and is not acting like herself. Since the witness knows the sponsor inside out, she immediately knew something was wrong. She confronted her about it and she said that everything was okay. Clearly it was not. Whenever the witness would ask the sponsor to go out, she did not want to in her smile had faded away in those months. The witness once again begged the sponsor to tell her. This is where the sponsor cried out to her that she was depressed and anxious because all she wants is to be with the person who she is madly in love with, who is the applicant. This was heartbreaking to hear as she has been patiently waiting for him to come to Australia for three years and has only grown more attached to him. The sponsor and the applicant love each other very much but the only barrier keeping them apart is distance. Their hearts were made for each other and the applicant adores the sponsor and speaks to her like she is the only girl in the world she is the only person that matters. It is very sad to see the sponsor in that state as she has always put people before her and it is only fair for her to have the same amount of happiness and to see that smile of hers which brightens up a room and the only way she will be cheerful again is for the person with whom she is crazily in love with, whom she cherishes, to come to Australia and for her to get married to him in front of her family. She insanely cares about the applicant.
When the witness went on holidays to Lebanon, the applicant also informed the witness that he is yearning for the day to see the love of his life, and his wife to be, as his heartaches to see her. These two love birds would do anything to see each other but distance has divided them into longing for each other for so long which is a heartbreaking thing to see them go through.

The Tribunal accepts this evidence.
Mrs Houda Issa, Wife (household), wrote in her statutory declaration declared on 27 September 2017 that she has known the sponsor since he was born until the present. She has known the applicant over the last three years when the applicant and sponsor got engaged in 2014. The witness has Skyped and she always stays in contact with both of them.
The witness believes that the applicant and sponsor should be together due to the passion and love they have for each other. The witness has seen the sponsor on many occasions speaking to the applicant and her face is always glowing like a star. The witness strongly believes that the sponsor and applicant should be together because the love was built on honesty and trust. She has seen the sadness in both their eyes. The sponsor sends presents with the witness when she goes to Lebanon on and the applicant sends back presence with the witness. The witness has spoken to both of them about their future and all she saw were two eyes sparkling when they spoke about each other.
The Tribunal accepts this evidence.
Ms Sumaya Issa, student, provided a statutory declaration declared on 27 September 2017.
The witness has known the sponsor for over 15 years. Both their families have known each other for a long period of time and a close family friends. They always keep in touch and meet up from time to time. Witness knows the applicant through the sponsor. The witness always sees the sponsor talking to the applicant and she met him in Lebanon on when she travelled and exchange gifts from the sponsor and the applicant.
The witness knows the sponsor is being a good educated and self-reliant person. She believes that the sponsor’s relationship with the applicant is genuine and continuing because she sees that it is a strong relationship built on trust, support, good communication and of course true love. She saw the love in the applicant’s eyes when she was talking to him about the sponsor his cheeks were also blushing. However she also saw the sorrow in both their eyes when she asked them when was their big day? She believes it is time for them to unite in Australia and get married and that them begin their life as a couple under one roof, have one deserves happiness and so do these lovebirds.
The Tribunal accepts this evidence.
Mrs Moutta Mounajjed, mother and housewife, provided a statutory declaration declared on 27 September 2017. She wrote that she has known the sponsor for more than 15 years. They have been living in the same block for several years. She has known the applicant since his sister, Hadia, got married to the applicant’s brother, Mustafa. The witness sees the sponsor every week and she sees the applicant frequently when she goes to Lebanon.
The witness believes that the relationship between these lovebirds is genuine and continuing. This is because she knows what love is and has seen it in their eyes. Both adore each other, so much, to the extent if one was to fall sick with the flu, the other would remain depressed till they felt well again. The witness has been to Lebanon a couple of times since their engagement every time she travels she is holding presents back and forth from each side. The witness and her daughters attended the sponsors and applicant’s engagement party in Lebanon on in 2014, at Castle 32. It was like a fairytale engagement. Love had filled their hearts and eyes not only myself saw that, but also all of the attendees. Every single person that was at the reception dreams they will be one day like the applicant and the sponsor. Their beauty and understanding of one another brought everyone into all. The witness is waiting for the day that the applicant will finally come to Australia to see them once again together happily and joyful. The witness has seen them together couple of times and she always sees the passion between them. When she sees them in different countries they are like a broken heart and only their sight of one another will heal their health. The applicant and the sponsor have a complete understanding of each other and have great future plans as husband and wife under one shelter. I waiting for their big day and I think that three years of engagement should be enough and the witness can’t wait to see them tie the knot and she sure that they are waiting for that day too. The whole family and lots of friends are waiting for the special day. The applicant and sponsor are just a perfect match. The ideal couple should start their life together.
The Tribunal accepts this evidence.
Mrs Motyah Issa, Mother, (housewife), provided a statutory declaration declared on 27 September 2017. She wrote that she has known the sponsor from the witnesses family as they are very close to each other and best friends from a very long period, and so they keep meeting and visiting each other.
The witness believes that the applicant and sponsor are in a good relationship built with trust and honesty and love, and she believes that the sponsor has the right to be happy and reunite with her fiance and get married and have a happy/sweet life.
Ms Marian Kamal Taleb, Admin, provided a statutory declaration declared on 27 September 2017 that she has known the sponsor since her birth. They are very close family friends. In 2015 when she came back to Australia she met the applicant on Skype. Here’s a very nice and kind person and remained in contact.
She believes that the applicant and sponsor are in a real relationship. The witness has never seen a guy treating his fiance away he was treating her in Lebanon on. The whole village was talking about the romantic couple.
The witness thinks that the applicant should be granted the visa and reunited with the sponsor so the witness can see the smile on her face again. The applicant and the sponsor have been waiting for each other for years have been through a lot and were very patient but she thinks that it’s time for them to get married.
The Tribunal accepts this evidence.
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 within the visa period as required by cl.300.215(b).Therefore, the requirements of cl.300.215 are met.
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 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). 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.
Regulation 1.15A include the following provisions:
·the financial aspects of the relationship;
·the nature of the household;
·the social aspects of the relationship; and
·the nature of the persons’ commitment to each other.
The financial aspects of the relationship
As discussed, the applicant the works as an electrician on a casual basis in Lebanon. The sponsor is a student.
The applicant and sponsor are living in different countries and as a result they do not have any joint ownership of real estate or other major assets.
They do not have any joint liabilities or debts.
The applicant and sponsor are pooling of financial resources to purchase a Samsung Note 8. The sponsor will contribute 80% and the applicant 20%. As discussed above, the sponsor sends money to the applicant and buys gifts for him. Further, the applicant buys gifts for the sponsor.
There is a Commonwealth Bank account in the sponsor’s name and she has given him a card so that he can withdraw money from the account.
The other party have a superannuation policy or a life assurance fund.
Regarding the basis of any sharing of day-to-day household expenses, if they were going to go out for dinner, they may share the cost or one of them might pay or the other might pay. The Tribunal gives this weight.
The nature of the household
The applicant and the sponsor do not have joint responsibility for the care and support of children.
When the applicant comes to live in Australia, he will live with his sisters. When the applicant and sponsor are married in Australia, they will rent a house in Bankstown or Punchbowl.
When they have been together in Lebanon, the sponsor did the cleaning. The applicant put the garbage out, and he will help with anything. He is also good at fixing things around the house.
The Tribunal gives this weight.
The social aspects of the relationship
After their engagement, the applicant introduced the sponsor as his fiance, to his friends and relatives. The applicant has not been to Australia, but some of the sponsor’s friends and family have gone to Lebanon, taking gifts to him, and they were introduced to him. Many photos have been provided, especially in Lebanon, showing the couple together, and with their relatives and friends. Many of the photos have captions provided by the sponsor.
There are a number of statutory declarations and also some oral evidence above regarding the opinion of the sponsors friends and acquaintances about the nature of the applicant’s and sponsor’s relationship.
Regarding the basis on which the applicant and sponsor plan and undertake joint social activities, when they were in Lebanon together, they invited members of each of their families to the restaurant. Before doing so, however, they discussed if it was a good idea or not, and they decided it was in that it would strengthen their relationship.
The Tribunal gives this weight.
The nature of the persons’ commitment to each other

100. The applicant and the sponsor met on 26 March 2014 in Beirut airport around 6 or 7 PM.
101. They were engaged on 13 April 2014.
102. Regarding the degree of companionship and emotional support they draw from each other, the sponsor said they support each other and emotionally through ups and downs. The applicant indicated that the sponsor and himself a strong connection together and throughout the engagement a strong connection was created. When the applicant’s first application was rejected they lived through a very poor time together. When the sponsor came to Lebanon on for six weeks and then for a second time for three weeks they spent all the time together, except when they were asleep.
103. The applicant said to the sponsor to her face that, ‘I love you and I miss you as much as I love you.’
104. The applicant and the sponsor both saw their relationship as a long-term one.
105. The Tribunal gives this weight.
106. 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.
Do the parties continue to meet time of application requirements?
107. 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.
108. The Tribunal finds that the sponsor continues to be an Australian citizen at the time of decision, and is satisfied that the applicant intends to marry an Australian citizen. Therefore, cl.300.211 continues to be met.
109. The Tribunal is satisfied that the visa applicant and review applicant have met and are known to each other personally. The Tribunal is satisfied that cl.300.214 continues to be met.
110. The Tribunal is satisfied that when the parties applied for the visa they genuinely intended to marry; and they continue to make preparations for their marriage. The Tribunal is satisfied that the parties are aware of the requirement that they marry within the visa period.
111. The Tribunal is satisfied therefore that the parties continue to have a genuine intention to marry and that marriage is intended to occur within the visa period, and finds that cl.300.215 continues to be met.
112. The Tribunal finds that the parties continue to have a genuine intention to live together as spouses, and finds therefore that clause 300.216 continues to be met.
113. Given the findings above, the Tribunal finds that the visa applicant continues to satisfy clause 300.211, 300.214, 300.215 and 300.216 at the time of its decision and accordingly, clause 300.221 is met.
114. Given all the findings combined, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.
Is there any impediment to the marriage?
115. Clause 300.221A requires that at the time of decision there is no impediment to the marriage in Australian law. If the applicant or prospective spouse is under 18, the Minister must be satisfied that they will turn 18 before the end of the period within which the intended marriage is to take place, or have an Australian court order issued under s.12 of the Marriage Act authorising the parties to marry. In the latter case, the Minister must be satisfied the marriage will take place: cl.300.221B.
116. The Tribunal finds there is no impediment to the marriage between the parties under Australian law, including the relevant provisions of the Marriage Act.
117. As there is not an impediment to the proposed marriage under Australian law, cl.300.221A is satisfied.
118. 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
119. 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.300.212 of Schedule 2 to the Regulations;

cl.300.212A of Schedule 2 to the Regulations;

cl.300.213 of Schedule 2 to the Regulations;

cl.300.214 of Schedule 2 to the Regulations;

cl.300.215(a) and (b) of Schedule 2 to the Regulations;

cl.300.216 of Schedule 2 to the Regulations;

cl.300.221 of Schedule 2 to the Regulations; and

cl.300.221A of Schedule 2 to the Regulations.

Robert Wilson
Member

[2017] AATA 1859

5 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Intention

Natural Justice

Procedural Fairness

Statutory Construction