Tindo (Migration)

[2017] AATA 760

Tindo (Migration) [2017] AATA 760 (3 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Flora Tindo

VISA APPLICANT:  Mr Mamour Francis Bako Gardgo

CASE NUMBER:  1604036

DIBP REFERENCE(S):  OSF2015/075245

MEMBER:Sue Raymond

DATE:3 May 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 03 May 2017 at 10:17am

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – Bogus document/misleading information – Previous marriage not disclosed – Impediment to proposed marriage – No evidence of divorce provided – Tribal customary marriage – Australian born child of the marriage

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 4, cl 300.221A, cl 300.223

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 June 2015. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage).

3. The delegate refused to grant the visa on 3 February 2016 on the basis that the visa applicant did not satisfy cl.300.221A and 300.223.The essence of the delegate’s decision was that the delegate found that the review applicant and the visa applicant provided misleading statements to the Department of Immigration and Border Protection, in the following way:

   The visa applicant declared that Ms Tindo has never been married before. The sponsor, Ms Tindo, declared that she has never been married and never sponsored a partner before. The departmental delegate asserted that this was misleading on the basis that Ms Tindo was married to Mr Di Francesco on 16 November 2014. This led to the finding that the delegate was not satisfied that the visa applicant satisfied Public Interest Criterion (PIC) 4020(1) of Schedule 4 to the Regulations. PIC 4020 was one of the subcriteria which must be satisfied in cl.300.223.

4. The delegate also found that the sponsor is not divorced and therefore not free to marry the sponsor. The delegate consequently determined that the visa applicant cannot satisfy cl.300.221A as there was an impediment to the marriage.

5. The review applicant appeared before the Tribunal via video-link from Western Australia on 10 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Barko via conference telephone from Sudan. The review applicant’s father, Mr Daniel Tindo, also attended the hearing and gave evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative was not present at the hearing and no request was made  to have the migration agent attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether PIC 4020(1) should be waived and whether there is an impediment to the marriage.

9. The issue about the misleading statements was not disputed by the review applicant but rather the focus of the review applicant has been as to why the visa should nevertheless be granted.

10. Public Interest Criterion 4020 is required by cl.300.223 to be satisfied for the grant of the visa. Broadly speaking, PIC 4020, in so far as it relates to this application, requires that:

    there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa …: cl.4020(1).

11. On the basis of the information before me, and noting that it was not disputed, I find that Flora Tindo was married to Mr Di Francesco in November 2014 and that she had sponsored that person for a partner visa in 2014. She ultimately withdrew the sponsorship for that person.

12. I find that on a form 40SP “Sponsorship for a partner to migrate to Australia” submitted on 30 June 2015, the sponsor answered in the negative to question 27 “Have you been married to  a person other than the current visa applicant (Including if you are still legally married to that person)?” and also answered in the negative to question 29 “Have you previously sponsored/nominated a spouse….”. On form 47SP “Application for migration to Australia by a partner” the visa applicant answered in the negative to question 63 “Has your fiancee or partner been married to a person other than you (including if they are still legally married to that person)”. I find that each of these answers constitutes information that is false or misleading in a material particular. I find that PIC 4020(1) is not satisfied by the visa applicant. Whilst two of the answers are in the sponsorship form, one is in the visa application itself, and I rely primarily on that answer in relation to the consideration of PIC 4020.

13. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). The text of PIC 4020(4) provides as follows: 

    (4)      The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)      compelling circumstances that affect the interests of Australia; or

    (b)      compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

14. The evidence before me did not suggest that there are compelling circumstances that affect the interests of Australia.

15. I accept that Ms Tindo has had a child to Mr Gardgo with that child being born in Australia in October 2015. Mr Gardgo has been named as the father on the child’s birth certificate. The circumstances of having a child, where the parents are separated geographically, are such that they may amount to compelling or compassionate circumstances that affect the interests of an Australian citizen. Since the birth of the child Ms Tindo has returned to Sudan with her child and I accept that travel there is not ideal for her or for their child. I accept that Ms Tindo is an Australian citizen.

16. Based on the wording of PIC4020(4), it is clear  that the circumstances must be such as to “justify the granting of the visa”. The whole tenor of this visa is one established for parties who intend to marry to allow them to marry. Even though the circumstances may be compelling or compassionate, ultimately I have difficulty reaching the conclusion that they “justify the granting” of a subclass 300 visa.

17. My difficulty arises from two aspects of this matter. Firstly, I do not have a copy of a divorce certificate which would suggest that a marriage carried out in Australia to Mr Di Francesco has been lawfully ended. Material provided to the Tribunal in the form of an email from a Commonwealth courts portal, suggests that an order has been made on about 10 February 2017 and the divorce order would take effect within one month and one day from when it was made. The notification also advised that a copy of the order would be mailed to Ms Tindo. The Tribunal allowed until 24 March 2017 for the production of the divorce order. It has not been forthcoming.

18. Whilst not relying on this aspect, I observe that even if such a divorce order was provided the fact that the marriage to Mr Di Francesco in Australia was on foot at the time the visa application was lodged means that it may be difficult for the applicant to satisfy the requirement of an intention to marry at that time.

19. Secondly, in relation to the intention to marry, it would appear from documentation provided by Ms Tindo, that Ms Tindo is married to Mr Gardgo according to tribal customs in Sudan. The documentation indicates that such a marriage took place on 18 December 2013 or potentially 10 June 2014.  Such a marriage carried out overseas may be accepted as a valid marriage for the purpose of Australian law. It depends on whether the marriage is regarded as a valid marriage in Sudan.

20. By letter dated 16 March 2017 the Tribunal arranged for documents supplied by the review applicant or on her behalf to the Department, to be sent to her and the review applicant was invited to make any further submissions as to whether her marriage [to Mr Gardgo] in Sudan is regarded as a valid marriage in Sudan. The Tribunal allowed until 31 March 2017 for any response. No response has been forthcoming to the present time.

21. The information available to the Tribunal[1] suggests that customary or tribal marriage in Sudan is valid. At hearing the evidence given by the review applicant was to the effect that she was not married in Sudan. She said that it was not a church wedding. Evidence was also given to the effect that it is not valid unless you attend court. In the absence of any further evidence or submissions on this issue I am inclined to the view that the parties are validly married in Sudan. [I appreciate that this finding may not sit well with a subsequent marriage to Mr Di Francesco in Australia in November 2014. This may potentially raise other complications]. I would have been prepared to be persuaded to the contrary had further information or evidence been provided to the Tribunal about this issue.

    [1] Including “Khartoum, Sudan-Embassy of the United States- Getting Married”->

    In the final analysis, and having regard to the matters raised in paragraphs 17 and 19 herein I am not satisfied that the circumstances, even if compelling or compassionate, justify the granting of the subclass 300 visa. Consequently, I find that PIC 4020 is not satisfied and I do not waive the requirements of PIC 4020. As cl.300.223 requires that PIC 4020, amongst other Public Interest Criteria are satisfied, this means that cl.300.223 is not met.

22. Cl.300.223 is a criterion which must be satisfied at the time of the decision. For the above reasons, I find that the applicant does not satisfy PIC 4020 for the purposes of cl.300.223.

23. The Tribunal has not proceeded to consider the question of whether cl.300.221A is satisfied as it has determined to affirm the decision to refuse the visa on the above-mentioned ground.

    DECISION

    The Tribunal affirms the decision not to grant the applicant a Prospective Marriage (Temporary) (Class TO) visa.

    Sue Raymond
    Senior Member