Taha (Migration)

[2024] AATA 2433

Taha (Migration) [2024] AATA 2433 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Assaad Mohamad Taha

VISA APPLICANTS:  Mrs Huda Jameel Rahi Al-Zamili

Mr Yousif Hussein Atta Atta

REPRESENTATIVE:  Mrs Judy Hamawi (MARN: 1793617)

CASE NUMBER:  1907022

HOME AFFAIRS REFERENCE:               BCC2018/2060584

MEMBER:Glynis Bartley

DATE:29 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 29 May 2024 at 2:52pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – subclass 300– review applicant failed to attend the hearing – relationship between the parties had broken down – review applicant does not wish to proceed with the review – not satisfied that the parties genuinely intend to live together as spouses – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 300.216, 300.221

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this review is whether the first named visa applicant (the visa applicant) Mrs Huda Jameel Rahi Al-Zamili, and the sponsor, Mr Assaad Mohamad Taha, genuinely intend to live together as spouses at the time of this decision.

   APPLICATION FOR REVIEW

2. 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 applicants Prospective Marriage (Temporary) (Class TO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The visa applicants applied for the visas on 11 May 2018. At the time the visa applications were 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 who are applicants for the visa need satisfy only the secondary criteria.

4. The delegate refused to grant the visas on 25 February 2019 on the basis that the visa applicant did not meet cl.300.216 and cl.300.221 of Schedule 2 to the Regulations. The delegate was not satisfied that the visa applicant and her sponsor, the review applicant, genuinely intended to marry and live together as spouses, as defined in s 5F of the Act.

5. On 25 March 2019, the review applicant applied to the Tribunal for review of the delegate’s decision.  

6. The Tribunal scheduled a hearing for 25 March 2024 at 2 pm and advised the review applicant’s representative accordingly. The invitation to the hearing included the following information:

   “…If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us…”

7. The review applicant failed to attend the hearing.

8. A Tribunal registry officer contacted the review applicant’s representative on 26 March 2024, and she advised that the relationship between the review applicant and the visa applicant (the parties) had broken down and the review applicant did not wish to proceed with the review. The Tribunal registry officer sent a withdrawal form to the review applicant’s representative.

9. The review applicant contacted the Tribunal registry after receiving a missed call. He confirmed that his relationship with the visa applicant had broken down and he did not wish to continue with the application.

10. A Tribunal registry officer contacted the review applicant’s representative again on 9 April 2024 to establish whether the review applicant was seeking to withdraw the application. The review applicant’s representative requested that another withdrawal form be sent to her, which the Tribunal registry officer did the same day. To date, the form has not been returned.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Clause 300.221 requires that, at the time of decision, the visa applicant continues to satisfy the criteria in clause 300.216. This criteria requires that, at the time the visa application was made, the visa applicant and the review applicant (the parties) genuinely intend to live together as spouses.

13. The visa applicant applied for the visa on the basis of her relationship with the review applicant. The review applicant’s representative subsequently advised the Tribunal registry that the relationship between the parties had broken down and the review applicant does not wish to proceed with the review. The review applicant later confirmed that the parties’ relationship had ended.

14. I accepted the information provided that the relationship between the parties has broken down. Given that they are no longer in a relationship, I am not satisfied that the parties genuinely intend to live together as spouses.

15. Consequently, I find that the visa applicant does not meet the time of decision criteria set out in cl.300.221.

16. For these reasons, I also find that the visa applicant does not satisfy the criteria for the grant of the visa.

    Secondary applicant

17. For the secondary applicant to be entitled to a visa under cl.300.321, he must continue to be a member of the family unit of a person who satisfies the primary criteria for the visa. As the Tribunal has found that the visa applicant does not satisfy cl.300.221, the secondary applicant does not meet the requirements of cl.300.321.

    DECISION

18. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    Glynis Bartley
    Member