Sesay (Migration)

[2017] AATA 1260

Sesay (Migration) [2017] AATA 1260 (6 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rugiatu Sesay

VISA APPLICANT:  Mr Saidu Mansay

CASE NUMBER:  1702776

DIBP REFERENCE(S):  OSF2013/014119

MEMBER:Kira Raif

DATE:6 July 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.300.216 of Schedule 2 to the Regulations

Statement made on 06 July 2017 at 1:48pm

CATCHWORDS

Migration - Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Additional evidence provided since Departmental decision – Credible and consistent – Evidence in support of relationship – Have children together – DNA test provided – Genuine intention to live together

LEGISLATION
Migration Act 1958, ss.5F, 65
Migration Regulations 1994, Schedule 2, cl 300.216, r 1.15A

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 is a national of Sierra Leone, born in September 1980. He applied for the visa on 23 September 2013. The delegate refused to grant the visa on 15 December 2016 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 the couple intended to live together as spouses. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 17 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and several witnesses nominated by the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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).

5. 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). Whilst 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.

   Do the parties genuinely intend to live together?

6. 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.

7. The Tribunal acknowledges that very limited evidence of the relationship has been provided with the primary application. The review applicant explained to the Tribunal that she had no representative and did not know what was required. The Tribunal is mindful that more evidence has been provided to the Tribunal.

8. The Tribunal has found the parties to be broadly credible and they gave consistent evidence about the circumstances of their relationship. The Tribunal accepts that the parties met around 2001 and formed a relationship in the following years. The Tribunal accepts that they lost contact at some point and did not have any contact until 2011. The Tribunal accepts that since that time they had regular contact. The Tribunal notes that the review applicant has made two trips to the Netherlands and has spent several weeks with the visa applicant. The Tribunal accepts her evidence that when they were together, the visa applicant introduced her to his friends as a fiancé. The Tribunal accepts that the couple have established a joint household when the review applicant visited the Netherlands. The Tribunal also accepts that they have discussed their plans for the future in Australia and the Tribunal is satisfied that they have had meaningful conversations about their future together.

9. The Tribunal accepts that the review applicant has been providing financial support to the visa applicant and there is evidence of transfers before the Tribunal. While the Tribunal acknowledges that such transfers had not been significant, the Tribunal is mindful that the review applicant has limited income, is a single mother in receipt of Centrelink benefits and she may not have greater capacity to provide financial support to the visa applicant. The Tribunal accepts that the parties have discussed their financial future together.

10. The Tribunal accepts there are interactions between family members. Both the review applicant and the visa applicant spoke about having contact with each other’s siblings and the review applicant spoke about her contact with the visa applicant’s mother and children from the previous marriage. There are also statements from third parties attesting to their belief that the relationship is a genuine one. The Tribunal accepts the relationship is socially recognised. The Tribunal accepts that the parties plan and have undertaken joint social activities together and will continue to do so in the future. The Tribunal accepts that there is family support for the relationship.

11. The Tribunal places significant weight on the fact that the couple have two children together. The Tribunal acknowledges that the visa applicant’s name did not appear on the children’s birth certificate initially and the review applicant has now provided updated birth certificates to the Tribunal. She explained to the Tribunal that she completed various documents to include the visa applicant’s name on the birth records but that in itself is not sufficient evidence of the visa applicant’s paternity. However, the parties have also completed DNA testing that confirms the visa applicant is the father of the two children. The Tribunal accepts the parties’ evidence that the visa applicant maintains close contact with the children and the Tribunal accepts the parties’ plans that he will continue to care and support the children if his visa is granted. In the Tribunal’s view, the parties’ decision to have children constitutes strong evidence that they do plan to live together as spouses.

12. Having regard to all these circumstances, the Tribunal is satisfied that the parties did have a genuine intention to live together as spouses. Therefore cl.300.216 was met at the time the application was made and continues to be met at the time of this decision.

    Conclusion

13. 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

14. 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.300.216 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member