Tursunovic (Migration)

[2018] AATA 3866

Tursunovic (Migration) [2018] AATA 3866 (10 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Husein Tursunovic

VISA APPLICANT:  Miss La Pha

CASE NUMBER:  1610634

DIBP REFERENCE:  osf2015/071477

MEMBER:Rosa Gagliardi

DATE:10 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 August 2018 at 3:18pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine spouse – limited period of finance pooling – no evidence of sharing of household tasks – time since engagement – relationship’s development and future plans – no common language – limited communication – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 362

Migration Regulation 1994 (Cth), r 1.15A, Schedule 2 cls 300.216, 300.221

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 25 June 2015. 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. Relevantly to this matter the primary criteria include cl.300.216.

3. The delegate refused to grant the visa on 23 June 2016 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because it was not accepted that the applicant and sponsor had a genuine intention to live together as spouses as defined by the Regulations.

4. On 9 July 2018 the Tribunal wrote to the review applicant through his authorised recipient at an address provided to the Tribunal for the purposes of the review.  The Tribunal wrote to invite the review applicant to a hearing to have been held on 9 August 2018, at 10.00am (Vic time) because it was unable to make a favourable decision based on the information before it alone.  The letter of 9 July 2018, advised the applicant that he ought to provide all the documents he intended to rely on to establish that the visa applicant met the relevant criteria. 

5. The invitation letter also advised that if the applicant did not attend the hearing, he should advise as soon as possible and that the date would only be changed if the Tribunal were satisfied that the review applicant had a very good reason for being granted an adjournment.  The Tribunal’s invitation also highlighted that if the applicant did not attend the scheduled hearing, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before it.  Several SMS reminders were also sent to the applicant at a mobile number provided by him for the purposes of the review prior to the hearing, reminding him of the scheduled hearing.

6. The applicant did not respond to the hearing invitation and nor did he provide any updated material on the matters he might have wished to rely on in respect of why the Tribunal should be satisfied that the applicant met the cl.300.216.

7. The Tribunal acknowledges that the ability to proceed to decision without further seeking information from the applicant is a discretionary one and that such discretion should be used fairly.  The Tribunal considers, however, that every reasonable opportunity was granted to the applicant to attend the hearing.  Given the paucity of information on file at the time of application and the review applicant’s limited effort to provide the Tribunal with updated information that would point to the parties having a genuine intention to live together as spouses, the Tribunal does not consider it is required to make the applicants’ claims for them. 

8. In these circumstances and pursuant to s.362 of the Act, the Tribunal has decided to make a decision on the review on the papers.  A copy of the Departmental decision has been submitted for the purposes of the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Do the parties genuinely intend to live together?

10. 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) 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.

11. 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.

    Background

12. From the material on file it appears that the marriage was solemnized in accordance with Islamic law on 8 May 2015 in An Giang Province, Vietnam and was considered an engagement.  This marriage is not recognised for the purposes of the Marriage Act 1961 in Australia.  The applicant is of Vietnamese nationality and was born on 14 June 1992.  Various documents were submitted confirming the applicant’s identity.  According to their written statements and the information provided to the Department at the time of interview, the parties were introduced to each other by their relatives in Australia.  It is claimed that they first communicated with each other in January 2015.  On 6 May 2015 the sponsor travelled to Vietnam and it is claimed that the engagement was held on 8 May 2015. 

    Financial aspects of the relationship

13. The applicant has provided three money transfer receipts showing funds had been sent from the sponsor to the applicant for between 11 June 2015 to 2 July 2015 and came to a total amount of AUD$4978 and EUR400.  The Tribunal acknowledges that this investment in the relationship by the sponsor indicates that he has provided some financial support to the applicant, however, the period is limited and provides little insight into any further financial exchanges or pooling of resources by the parties.  Nonetheless, given that the applicant and the sponsor live in different countries it cannot be expected that they would have invested in major assets together. 

    The nature of the household

14. The parties have submitted a hotel account with the application for a stay of eight nights at a hotel in An Giang, Vietnam from 7 May 2015 to 15 May 2015, however, the receipt only lists the name of the sponsor so it is difficult to gauge from this item whether the parties stayed there together and presented themselves as spouses to be.  The applicant told the Department at interview that she had stayed at the hotel with the sponsor but did not have any evidence to support her claims. 

15. It is unclear to the Tribunal from the evidence before it the extent to which the parties might have resided together or shared household responsibilities.  The Tribunal acknowledges that the parties are geographically separated and cannot be expected to provide a significant amount of information regarding any common household.  Nonetheless, given the passage of time since the engagement, the Tribunal considers that it is not unreasonable to have expected some evidence of the parties having shared some household tasks together in Vietnam, or of the parties having planned a future household together.

    The social aspects of the relationship

16. At interview with the Department the applicant stated that no one from the sponsor’s family attended their engagement.  Nor did anyone from the sponsor’s immediate family provide any information as to their perception of the engagement, and the parties’ future plans in terms of whether they genuinely intended to live together as spouses. 

17. The Tribunal does note that the application did include two statutory declarations from the parties’ cousins who are a married couple from Australia – Aticah Glibanovic and Adnan Glibanovic.  The statutory declarations (Forms 888) were written on 29 April 2015 and

    
    

    25 April 2015 respectively.  Mr Adnan Glibanovic declared that he knew the applicant because she was the cousin of his wife.  He believed the relationship was genuine because they both talked to him about how they were so happy to have met each other.  He wrote that they were due to be engaged in May 2015 and spoke about the happy life they would live together in Australia.  It was stated that the parties held the same religion and that the relationship had the full support of the family.  Aticah Glibanovic stated that the applicant is her cousin and that she and the sponsor visit her with his mother.  She also declared that she considered the relationship to be genuine because “they talk about how happy life will be in Australia, and like myself us chumpa girls marry and stay with husband!” She also wrote in similar terms that the family supports the union.

18. 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.

19. 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.

    The nature of the persons’ commitment to each other

20. When asked at interview with the Department, the applicant stated that the parties learned about each other before meeting, through their text messages, which were translated using an online translation tool as the parties do not share the same language.  The parties at the time of application claimed that they had contact mostly through web based social media but it is difficult to ascertain how this could occur when the applicant had no English language skills and the sponsor had limited English language skills and no Vietnamese.  Even if the parties could overcome their language barrier, the Tribunal notes the limited evidence of communication between the parties either at the time of application or at the time of decision.  It is the limited evidence submitted showing a consistency in communication until the present time that the Tribunal considers is significant.

21. The Tribunal notes that the Department was concerned about the limited time the parties had to get to know one another before committing to the relationship.  The Tribunal considers, however, that it may in some circumstances be possible for parties to form a bond within a relatively short time.  The Tribunal’s main concern is that it has little information by way of the parties’ development of the relationship over time, and whether and how their commitment to one another might have grown.  The Tribunal has little insight into the relationship’s development and the parties’ future plans together.

22. On the basis of the above the Tribunal is not satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl.300.216 is not met. 

23. 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. As the evidence above demonstrates, the concerns that the parties appeared to have had limited communication with one another, among other things, not only continued from the time of application until the time of decision, but in many ways were also compounded at the time of decision in terms of limited evidence.  The Tribunal has limited persuasive evidence before it to indicate that the parties at the time of decision genuinely intend to live together as spouses.  Accordingly, cl.300.221 is not met.

24. It is for the parties to make their case and to provide as much information as possible to enable the Tribunal to make a decision.  Based on the paucity of evidence, and having taken into account the information in relation to the provisions under Regulation 1.15A, the Tribunal is not satisfied that the parties have ever had, or have a genuine intention to live together as spouses per section 5F.

25. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

26. Accordingly, cl.300.221 is not met.

27. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

28. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Rosa Gagliardi
    Member