Turan (Migration)

[2022] AATA 4688

Turan (Migration) [2022] AATA 4688 (15 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Savas Turan

VISA APPLICANTS:  Mrs Iman Alrefai
Ms Zainab Albatoul Alayoubi
Ms Mariam Alayoubi
Mr Karam Alayoubi
Mr Jawad Alayoubi

REPRESENTATIVE:  Mr Richard Amhaz (MARN: 1796249)

CASE NUMBER:  1916257

HOME AFFAIRS REFERENCE(S):          BCC2018/3251766

MEMBER:Russell Matheson

DATE:15 November 2022

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 15 November 2022 at 5:26pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – intending to marry and live together as spouses – no current wedding arrangements – money transfer receipts – no suitable accommodation plans – limited evidence of social interaction – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 300.215. 300.216, 300.221; r 1.15

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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

2. The visa applicants applied for the visas on 28 August 2018. 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. Relevantly to this matter, the primary criteria include cl 300.215 and cl 300.216.

3. The delegate refused to grant the visas on 18 June 2019 on the basis that the first named visa applicant (the applicant) did not satisfy cl 300. 215 and cl 300.216 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant and review applicant intended to live together as spouse’s and that the marriage would take place within the visa period. The review applicant seeks review of the delegates decision.

4. The review applicant (hereafter referred to as the sponsor) appeared before the Tribunal on 6 September 2022 by video platform to give evidence and present arguments. The Tribunal is satisfied it was reasonable to hold a hearing through video in the context of the coronavirus pandemic, having regard to the nature of this matter and the individual circumstances of the applicant and sponsor. The Tribunal was mindful of the need to minimise health risks to the parties and Tribunal staff that could arise at the present time in an in-person hearing. The Tribunal received an indication from the sponsor that he was comfortable with the hearing proceeding utilising this technology platform.  The Tribunal did not receive oral evidence from the applicant due to technical difficulties with the telephone network in Syria.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The review applicant was not represented in relation to the review.

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

   Background

8. The applicant is a 42-year-old female from Damascus, Syria. She is currently unemployed. She was previously married to Mhd Zaher Alayoubi from 1 November 1995 until 12 June 2013, there are four children born from this relationship, who are all included in the application as dependents. The applicant’s parents and siblings all live in Lebanon.

9. The sponsor is a 52-year-old Australian citizen born in Sydney. He has declared one previous marriage to Fatma Turan from 11 July 1997 until 3 January 2009. He sponsored his previous wife to Australia. There are two children born from this relationship. The sponsor is working as a taxi driver and living in Mascot, Sydney.

10. It is claimed in the application that the applicant and her children stayed in the same building as the sponsor’s aunt in Turkey for approximately three months in 2016. The sponsor’s aunt introduced the sponsor to the applicant over the phone. The sponsor and applicant started talking to each other and their relationship developed.

11. The parties claim to have first met in person on 15 June 2018 at the Syrian Border and on 23 June 2018 they were engaged to marry. The sponsor returned to Australia on 30 June 2018 and has not seen the applicant since that date.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the parties genuinely intend to marry, and whether the marriage is intended by them to take place within the visa period and whether the parties genuinely intended to live together as spouses at the time of application.

13. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing.

    Relevant law

14. Clause 300.215 requires that at the time of the application the parties have a genuine intention to marry, and the marriage is intended to take place within the visa period.

15. 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 a married couple 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) of the Regulations 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 the legislation may assist in determining the parties’ aspirations.

    Do the parties genuinely intend to marry?

16. The Tribunal notes that the applicant provided with her application to the Department the Notice of Intended Marriage to be solemnised by a marriage celebrant in Australia on18 May 2019, which has now lapsed. The parties have not provided a further Notice of Intended Marriage at the time of decision.

17. 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 has found that at the time of application the parties had a genuine intention to marry. Hence, the requirement of cl 300.215(a) is satisfied. Given the proposed date for the marriage in the visa application, the Tribunal is satisfied that at the time of application the parties intended to marry 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 as spouses?

18. Having regard to the considerations for a spousal relationship and cl 300.216 requirements, as set out in paragraph 15 above, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings.

    Financial aspects

19. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses.

20. The applicant and sponsor have provided numerous money transfer receipts to the Department and additional money transfer receipts to the Tribunal dated between 5 April 2017 to 6 June 2022. The Tribunal noted that numerous receipts were in Arabic that were not translated, this was problematic for the Tribunal when determining who was sending and receiving the money sent. There were also money receipts sent from the sponsor to the applicant and her daughter Zainab and other money receipts sent from the sponsor to other people in Syria. There are also money receipts sent from a third party in Australia to the applicant. The Tribunal questioned the sponsor as to theses anomalies. The sponsor explained that he had been blocked by Western Union from sending money in his name due to the fear that he was sending money to terrorists in Syria. He further stated that he sent money to the applicant’s neighbour and family members in Syria to give to the sponsor and sent money through a friend in Australia to the sponsor.  The sponsor stated that it is very expensive to live in Syria and the applicant uses the money for her day-to-day living expenses, rent, food and her children’s education. The parties provided a copy of a receipt in the sponsors name for jewellery purchased as a gift for the applicant in June 2018 in Damascus, Syria. The Tribunal accepts that the sponsor has purchased jewellery for the applicant and has sent her some financial support. The Tribunal places little weight on the money transfers in Arabic and money sent to other people in Syria by the sponsor as there is no corroborating evidence that the applicant received the money.

21. The sponsor stated that he currently works as a taxi driver earning between $1,500 and $2,000 a week and lives with a friend and her boyfriend in a two-bedroom flat in Mascot paying $350 per week rent. The sponsor said that the applicant is currently unemployed, has no savings and that she would work as a chef when she comes to Australia. The parties will open a joint account, pool their financial resources and support each other financially.  The Tribunal accepts that the applicant has intentions to work in Australia and that there is a preparedness for future pooling or sharing of financial resources and the sharing of household expenses by the parties.  

22. No evidence has been provided to the Tribunal to suggest that the applicant and the sponsor share ownership of any assets, major or otherwise, or operate joint bank accounts. No detailed evidence has been provided of legally binding financial obligations between the applicant and the sponsor or future intentions regarding these matters. The Tribunal accepts that since lodging the visa application the sponsor has made some money transfers to the applicant. The Tribunal questioned the sponsor if he had explored any options regarding arranging his wedding and wedding reception in Australia. The sponsor stated that he had not made any further arrangements regarding his wedding to the applicant and that he will make plans when he gets a decision regarding the visa application. There is limited evidence to support any historical sharing of finances and little information regarding any future intentions.

23. As the parties have lived in different countries throughout their relationship, the Tribunal sees nothing untoward in the parties not having merged their financial affairs in the manner that many couples do. This is because they have had limited opportunities to do so. The Tribunal accepts that there is a degree of difficulty in establishing and sharing financial resources when the sponsor and applicant live in separate countries.

24. Based on the evidence provided the Tribunal finds that the parties do not have any joint ownership of real estate or other major assets, or any joint liabilities. There is limited evidence of pooling or sharing their financial resources and little information regarding future intentions. They do not have any major financial commitments.  The parties do not owe any legal obligation in respect of the other and do not share household expenses.

25. The Tribunal places little weight on this aspect of reg 1.15A (3) (a).

    Nature of the household

26. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, if any, the living arrangements and daily routine of the parties and the sharing of the responsibility for housework, to form an opinion as to whether the parties are living together and not living separately and apart on a permanent basis.

27. The sponsor gave evidence that he stayed at the applicant’s residence with her children when he visited her from 15 June 2018 to 30 June 2018. He further stated that he has not returned to visit the applicant since then. The sponsor claimed that when he stayed with the applicant and her children, and he helped with the cooking and cleaning, and they jointly cared for and supported the applicant’s children. The parties provided several photographs of the sponsor and applicant in a household environment with the applicant’s children and relatives. The Tribunal accepts that the parties have cohabitated in the same household for a very short time. The sponsor gave evidence that both their families support the parties’ relationship.

28. The parties have not provided any documentary evidence that supports they have lived together as couple or shared a household or the responsibilities of a household. The applicant and sponsor do not claim to have already established a household together and have been in each other’s company for a limited period (two weeks in 2018). The Tribunal places little weight on the short time the parties have cohabited together as convincing evidence as to whether the parties have any intention to establish a household together after they are married. 

29. The Tribunal notes that the sponsor’s only trip took place in June 2018. The Tribunal acknowledges the constraint on travel between Australia and Syria since the onset of the COVID-19 pandemic in early 2020 and has placed no adverse weight on a lack of cohabitation in that period.

30. The parties have not established a shared household and the context of their shared time together does not, in the Tribunal’s opinion, make consideration of the degree of shared household arrangements a useful indicator of this aspect of their relationship. The Tribunal accepts there is a degree of difficulty in establishing a household together when the sponsor and applicant live in separate countries. The Tribunal also accepts that it may not be culturally appropriate for the parties to live together prior to their marriage. However, given that the sponsor lives in a two-bedroom unit with two other flatmates there is no evidence before the Tribunal that the parties genuinely intend to live together in Australia. When questioned about what enquiries about living arrangements he has made to accommodate the applicant and her four dependent children given the difficulty finding rental properties at present, the sponsor replied he would worry about that when they arrived. He further stated that he has some friends in the real estate industry who would be able to help him out. There is no evidence before the Tribunal to support these claims. 

31. Based on the limited evidence provided by the parties regarding future intentions and living arrangements of the parties and the sharing of the responsibility for housework, the Tribunal does not consider it appropriate to give positive weight to this aspect of the parties’ relationship. The sponsor claimed in oral evidence that he sent money transfers to the applicant for her day-to-day living expenses, rent, food and her children’s education. There is limited documentary evidence of the applicant’s children attending school and university. There is no evidence such as receipts or evidence of payments made towards the children’s education before the Tribunal that indicates that the parties have jointly provided care and support to the applicant’s children.   

    Social aspects

32. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as intending to marry each other, the opinions of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

33. In addition to the sponsors own statement regarding the history of their relationship the following evidence has been provided to the Department in support of the application:

    ·Photographs.

    ·Form 888 statutory declarations from Mr Ibrahim Tacettin Aktac and Mr Bill Salhab.

34. The Tribunal when considering the declarations from the sponsor’s friends, notes that none of the people who have signed the statements have met both parties in person and witnessed firsthand the development of the relationship. The declarations give no insight into the inception and development of the relationship over time and do not provide convincing reasons as to why they believe the relationship is genuine and continuing. The Tribunal does not consider the statements presented to be sufficient or convincing evidence that the relationship is socially recognised by family, friends, and the broader community or whether the parties intend to socialise as a couple after they are married. The Tribunal places little weight on the statements presented.

35. The Tribunal considers that these two statements provide little evidence of the extent to which the parties present themselves to family and friends as being in a committed relationship, as a couple who are genuinely intending to live together as spouses.

36. The parties provided several photographs in each other’s company, with the applicant’s children and a select group of people on limited occasions. The sponsor gave evidence that when he visited the applicant in June 2018 the parties went shopping and dined out with the applicants’ children, mother and brother.

37. While the photographs submitted with the application show that the parties have met and are personally known to each other, these photographs alone are not convincing evidence to establish that a genuine and continuing relationship exists between the applicant and the sponsor and that they genuinely intend to marry each other in the future.

38. Whilst there is photographic evidence of the parties having contact with each other, the applicants’ children, mother and brother in limited social settings the Tribunal considers such evidence to be of limited probative value, as it can easily be staged to reflect a genuine situation. The limited weight given to the photographic evidence and travel records does not resolve the concerns raised by other factors considered regarding this aspect of the relationship. Accordingly, the Tribunal does not consider it appropriate to give positive weight to this aspect of the parties’ relationship.

39. Overall, the Tribunal has concerns about the limited evidence submitted in support of the application. The Tribunal also has doubts about whether the photographs were taken for the purposes of enhancing the applicant’s visa application and facilitating a migration outcome. Given the time that has elapsed since the engagement, the Tribunal would have expected that the parties could provide further information about how others in their familial and social circles viewed their relationship.

40. As such, the Tribunal places little weight on this aspect of reg 1.15A(3)(c).

    Commitment

41. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

1. The applicant and sponsor have been in a long-distance relationship since June 2016. As previously stated, (paragraph 11) the parties claim to have first met in person on 15 June 2018 at the Syrian Border and on 23 June 2018 they were engaged to marry. The sponsor returned to Australia on 30 June 2018 and has not seen the applicant since that date.

2. The couple also provided transcripts and screenshots taken from their smartphones from February 2018 to present. Some of these include the applicants’ children in the communication. Some of communications were also untranslated and therefore, the Tribunal places no weight on these communications as the subject matter is unknown. The translated communications were short in nature or just emojis’ and many of the screenshots also depicted missed calls. The Tribunal questioned the sponsor regarding the duration and content of the messages. The sponsor stated that there are network issues in Syria and the government cuts off the internet and there are power outages for twenty-three hours a day. The Tribunal accepts on country information available to it that internet freedom in Syria is severely restricted due to government repression of dissent and the ongoing effect of civil war and Syria’s telecommunications infrastructure is one of the least developed in the Middle East, and broadband connections are difficult to acquire. The Tribunal places little weight on the lack of detail in the communication between the parties.

3. With respect to the duration of the relationship, the Tribunal is not satisfied the evidence of the parties entering a committed relationship (engagement) 8 days after the first direct contact at the Syrian border in June 2018 is convincing.  As previously stated, (paragraph 10) it is claimed in the application that the applicant and her children stayed in the same building as the sponsor’s aunt in Turkey for approximately three months in 2016. The sponsor’s aunt introduced the sponsor to the applicant over the phone. The sponsor and applicant started talking to each other and their relationship developed. The parties have not provided any evidence of early communication with each other from their introduction in early 2016 to February 2018 when requested by the Department. The Tribunal has therefore, measured the duration of the relationship from their engagement in June 2018, which would provide a duration of over four years. The Tribunal has given some weight to this factor. They have not, however, spent more than 2 weeks in each other’s actual company during this time and have not at any stage established a household together. Accordingly, the Tribunal gives no weight to this factor as an indicator that they intend to marry and live together as spouses. The Tribunal accepts that the parties have been in each other’s company for a limited amount of time and therefore, accords the brevity of the personal relationship significant weight. Furthermore, no detailed information has been provided of future intent, other than that they intend to get married when the applicant arrives in Australia. The sponsor stated that he will arrange the wedding and reception when the applicant comes to Australia.  The parties provided evidence of a Notice of Intended Marriage (NOIM) dated 7 August 2018 to a civil marriage celebrant for their marriage to take place on 18 May 2019, however this did not occur and has lapsed. The sponsor stated that he has not made any other enquiries regarding organising the parties’ wedding and reception. 

4. Although the applicant and sponsor have provided some evidence of having met in person, there is little other evidence supporting that their relationship is a socially recognised, genuine and ongoing relationship. Considering the progression of this relationship and limited time the applicant and the sponsor have spent together in person, the Tribunal cannot be satisfied that they have a commitment to marry and live together as spouses.

5. The Tribunal is not satisfied that the evidence that is before it supports a finding that the applicant and sponsor genuinely intend to marry and live together as spouses. As discussed in this decision, consideration of the financial and social aspects of the parties’ relationship, and of the nature of their household arrangements and commitment to each other provide no credible indication that they are in a genuine relationship and intend to marry. In the view of the Tribunal, this is so even when due consideration is given to their not residing in the same country and the impact this has on consideration of the factors outlined in reg 1.15A. The lack of credible evidence of familial support for the relationship and the rapid development of the relationship after meeting face to face for the first time and the limited time the parties have spent in each other’s company are of particular concern to the Tribunal. In conjunction with the other factors discussed in the decision, the concerns held by the Tribunal outweigh the positive weight given to the duration of the relationship. 

6. The Tribunal raised the issue of the applicant and her dependents applying for a [permanent] visa to Australia on 12 January 2018, which was refused on 22 January 2018 and that she was sponsored by another person. The sponsor responded that his friend Riab H sponsored the applicant and had told him to try the [the other visa] as it would be [quicker to obtain]. Based on the information provided, it does not support that the applicant and sponsor are in a genuine and continuing relationship as outlined in the sponsor’s statement that their relationship commenced in early 2016. It appears the applicant has entered a relationship with the sponsor for migration purposes for herself and her dependent children.

7. As such, the Tribunal places limited weight on this aspect of reg 1.15A (3) (d).

   Conclusion

8. On the balance of the findings and reasoning above it is determined that the applicant and the sponsor do not genuinely intend to live together as spouses (per regulation 300.216). As a result, at time of decision, the applicant does not satisfy regulation 300.221.

9. As the Tribunal does not accept that the applicant satisfies the primary criteria, the secondary visa applicants are unable to meet cl 300.321 because they are not members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl 300.221.

10. For the reasons above, the Tribunal finds the visa applicants do not satisfy the criteria for the grant of the visas.

    decision

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

    Russell Matheson
    Member