White (Migration)

[2018] AATA 4497

White (Migration) [2018] AATA 4497 (3 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Patrick White

VISA APPLICANT:  Miss Sonia Herbert Massey

CASE NUMBER:  1713404

DIBP REFERENCE(S):  BCC2016/2302108

MEMBER:P. Maishman

DATE:3 October 2018

PLACE OF DECISION:  Perth

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.300.214 of Schedule 2 to the Regulations

Statement made on 03 October 2018 at 6:48pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – met in person – travelled to applicant’s home country – airline tickets – photographic evidence – online communication – statutory declarations – decision under review remitted


LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2 cl 300.214

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 8 July 2016. 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.300.214.

3. The delegate refused to grant the visa on 8 June 2017 on the basis that the visa applicant did not satisfy cl.300.214 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant and the review applicant had met in person.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. The review applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The review applicant gave the Tribunal a copy of the delegate’s decision record when he applied for the review. The Tribunal also had before it the Department’s file containing the evidence considered by the Department. The history of the visa application, taken from the delegate’s decision and the Department’s file is summarised as follows. The visa applicant is a 41-year-old citizen of India. The review applicant is a 34-year-old Australian citizen. They first met in person on 12 May 2015 and became engaged to be married on 14 May 2015. They intended to get married on 29 April 2017.

8. The parties provided a substantial amount of additional documentation to the Tribunal including:

   a.a number of photographs;

   b.telephone bills;

   c.Postal receipts;

   d.Singapore airlines boarding passes for travel from Perth to Delhi via Singapore on 11 May 2015 and return on 23 May 2015;

   e.Flight Centre itinerary showing flights for Mrs Narelle l White and Mr Michael White from Perth to Delhi to Perth between 18 December 2015 and 13 January 2016;

   f.statutory declaration Form 888 from Mrs Narelle White;

   g.records of SMS messages; and

   h.currency transfer receipts.

9. The issue in the present case whether the visa applicant and the review applicant have met in person.

   Have the applicants met in person and are they known to each other personally?

10. Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally.

11. The Department’s file contains a copy of the visa applicant’s passport and a copy of the review applicant’s passport. The Tribunal is satisfied that on the evidence both the parties were over 18 years old at all relevant times.

12. The visa applicant provided a statutory declaration sworn on 23 May 2016. She states she first heard of the review applicant through a family friend Mr Lal. She and the review applicant commenced communication and eventually decided the review applicant should come to Delhi to meet in person. She states the first met face-to-face on 12 May 2015. They talked a lot and the closeness they felt culminated in the review applicant proposing marriage on 20 May 2015. The review applicant returned to Australia but they kept in touch with phone calls and text messages. The review applicant and his mother visited Delhi in December 2015. The review applicant left Delhi in the second week of January 2016 but they both hoped to be together in the near future.

13. The review applicant provided a statutory declaration sworn on 10 June 2016. He states his neighbour Varsha suggested he meet online with the visa applicant. He states he first met the visa applicant at New Delhi airport on 12 May 2015. They became engaged on 20 May 2015 after spending time together. He returned to Australia but towards the end of 2015 decided he had to go back to India to see the visa applicant again. His mum wanted to meet her and travelled with him to Delhi in December 2015.

14. Mrs Narelle White is the review applicant’s mother. She provided a statutory declaration that she went with her son to India in January 2016 to be introduced to her son’s fiancé. She states she had initially gotten to know her son’s fiancé via Skype video conferencing. Mrs White said that the parties’ relationship was getting stronger to the point where her son stays up half the night chatting with his fiancé.

15. The Tribunal accepts that the photographic evidence, which was not available to the Department’s delegate, shows the parties meeting in person in December 2015/January 2016 when the review applicant was in New Delhi with his mother. 

16. The Tribunal finds that at the time of application the parties were both over 18 years old and had met each other in person. The Tribunal is satisfied they were known to each other personally.

17. Therefore, at the time of application, the requirements of cl.300.214 were met.

18. 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

19. 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.300.214 of Schedule 2 to the Regulations

    P. Maishman
    Member