YUSUF ISSE (Migration)

[2022] AATA 4825

YUSUF ISSE (Migration) [2022] AATA 4825 (2 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Suleyman Ali YUSUF ISSE

VISA APPLICANT:  Ms Fadumo Sharif MOHAMUD

REPRESENTATIVE:  Ms Jasmin Angel

CASE NUMBER:  2010251

HOME AFFAIRS REFERENCE(S):          BCC2018/3611568

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         2 November 2022 at 11:42 am (WA time)

DATE OF WRITTEN RECORD:                11 November 2022

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 300.216 of Schedule 2 to the Regulations

Statement made on 11 November 2022 at 12:45pm

CATCHWORDS  
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to live together as spouses – financial aspects – nature of the household – social aspects – nature of the commitment – telephone records – call duration – previous marriage – culture and religion – decision under review remitted

LEGISLATION 
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.211, 300.212A, 300.212, 300.213, 300.214, 300.215, 300.216, 300.221A

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [11.42 am]

1. MEMBER: This is an application for review of a decision that was made by a delegate for the Minister for Home Affairs to refuse to grant your fiancée a Prospective Marriage (Temporary) (Class TO) visa under section 65 of the Migration Act.

1. Now, she applied for the visa on 22 September 2018 and at the time the visa application was lodged class TO contained only one subclass, subclass 300 prospective marriage. The criteria for the subclass 300 visa are set out in part 300 of schedule 2 to the Migration Regulations. The primary criteria must be satisfied by at least one applicant. Well, she is the only applicant. And there are no family unit issues that apply here.

1. As I said to you earlier, I had read the decision before coming into the hearing today. The delegate refused to grant the visa on 16 April 2020. I think it is useful to look at the reasons why this application was refused. Now, I’m reading directly from the decision record now. It was a valid application. The delegate was of the position that the legal requirement in clause 300.216 in schedule 2 to the Regulations had not been met on the day that the decision was made. Now, clause 300.216 states that:

i.    The Minister is satisfied that the parties genuinely intend to live together as spouses.

1. Now, in accordance with the law there were provisions that needed to be considered.  The applicant must continue to satisfy the criteria in clause 300.211 to clauses 300.214 to 300.216.  In accordance with policy officers of the department must assess the parties’ intentions to live together as spouses by having regard to as far as possible the definition in section 5F of the Act regulation 1.15A factors in assessing married relationships and also policy related to both.

1. Regulation 1.15A makes provisions for determining whether the conditions of section 5F exist and these include the financial aspects, the nature of the household, the social aspects of the relationship, the nature of the persons’ commitment to each other.  I note from the decision record that the delegate was aware that officers should keep in mind for cultural and religious purposes or reasons a couple who are intending to marry will not always be able to provide evidence in support of these factors. 

1. It seems to me reading from the decision record that the delegate considered the financial aspects at time of decision.  You claim to be solely responsible for the applicant financially because you are the only one working in that relationship.  Some evidence of fund transfers have been provided to support the claims for the period December 2018 to June 2019.  The delegate accepted that you were in an engaged relationship living separately and you may not have pooled your finances to any great degree.  The delegate accepted on balance that some financial support had been provided by you to the applicant and some weight, positive weight, was placed on that. 

1. Now, in relation to the household the sponsor meaning you did not then live with the applicant, you were living in two different countries Australia and Malaysia.  The delegate accepted that you were not able to provide any evidence in terms of a household and placed limited weight on this aspect.

1. The delegate considered a couple of statutory declarations from friends of yours.  I have read those two statutory declarations; I am not going to read them out for the purposes of my decision.

1. The delegate considered photographs of the two of you and for reasons known to the delegate placed limited weight on those as evidence of social recognition noting that there were no other people in the photographs. 

1. Now, in relation to commitment to each other the delegate noted as follows, that you had claimed to have been introduced to each other by family in June of 2017 by telephone as you were living in Australia at the time and your fiancée was in Mogadishu.  You started talking via phone and Internet.   The relationship developed and there was a decision to get engaged on 15 October 2017.  You had claimed to have travelled to Malaysia three times from the point that your fiancée moved to Malaysia in July of 2018.  You first met in person in Kuala Lumpur on 3 July 2018.

1. Now, the delegate made some negative assessments or findings in relation to the phone contact between the two of you.  The delegate noted that the vast majority of calls were for one minute duration, some lasted for two minutes, and one lasted for three minutes and a four minute one.  A screenshot from a Smartphone had been provided showing incoming and outgoing video calls to Fadumo between 6 and 22 June (indistinct).  The delegate accepted that some communication had taken place between the two of you but was not satisfied on the evidence that it provided or demonstrated rather a level of commitment that would readily associate with an engaged couple who intend to spend the rest of their lives together.

1. The short duration of the calls may be due to the high cost associated with international phone calls.  But there was no evidence of your fiancée’s attempts to contact you via phone, email, text message or regular mail.  Whilst that may be so I don’t necessarily agree that there should be a negative spin placed upon that aspect.  Your fiancée was not working in the period of time that she was living in Malaysia.  And the evidence indicates that you were wearing the costs because you were in a position to pay the costs. 

1. There was no evidence provided to show that you and your fiancée recognise important events in each other’s lives such as birthdays, religious and cultural events of significance and so forth.

1. You had previously been married.  You claim to be divorced from 15 February 2015 with one child.  That marriage was a religious marriage and you divorced without any court involvements and you were you not able to provide a divorce certificate.  I am well aware of the cultural aspects of divorce in your culture, Islamic culture as well, and I do accept that you are free to marry.

1. A notice of intention to marry was submitted with a planned marriage date of 15 September 2019 pending the arrival of the fiancée, your fiancée, to Australia.  It is noted, and I am reading from the decision record, it was noted that the visa application was not finalised permitting travel to Australia in time for the proposed wedding ceremony.  The fact that the intended date of marriage had passed has not been taken into consideration as evidence of a lack of commitment.  The delegate accepted that you both live in different countries and that you may not be able to provide evidence in support of some of the factors listed in regulation 1.15A(3).

1. The delegate, however, placed significant weight on your limited contact, the evidence of support to each other, and the lack of recognition of your relationship from family and friends.  The delegate expected to see a greater level of contact with each other’s families.  Overall, the delegate was not satisfied that you are genuinely intending to live together as spouses.

1. So, they were the reasons.  As I said to you at the very beginning today, I am not bound by any view of the facts or circumstances of the delegate.  I am required to make my own findings and I have done so in this particular matter.

1. You appeared today before me to give evidence and present arguments.  Arguments were provided through your representative Ms Agum.  I understood that I had the ability, if I needed, to contact the applicant in Malaysia.  There may have been other witnesses.  I have decided I do not need to do so.  The hearing was conducted with the assistance of an interpreter, but that person was not needed.

1. Now, in relation to the claims and the evidence clause 300.221 requires that at the time of decision, my decision, that your fiancée continues to satisfy the criteria in clauses 300.211, 300.214, 300.215 and 300.216.  The criteria require that at the time she made the application that she intends to marry an Australian citizen.  You are an Australian citizen, I accept that.

1. There is also a requirement that you have met and are known to each other personally and that you genuinely intend to marry and intend to do so during the visa period.  And you genuinely intend to live together as spouses.  Now, in order to determine whether your fiancée continues or the visa applicant continues to meet those requirements it is first necessary to consider whether they were met at the time of the visa application.  There are other requirements.

1. I am satisfied that you are an eligible person for the purposes of clause 300.211.  I am satisfied that the visa applicant had turned 18 at the time of application for the purposes of clause 300.212A.  That is met.  Clause 300.212 requires that at the time of application the review applicant being you is not prohibited from being a sponsor in certain circumstances.  I have considered those circumstances and they do not apply to you.  I find that clause 300.212 is met.

1. Clause 300.213 requires that at the time of the application the visa applicant is sponsored by the review applicant and that the review applicant has turned 18.  That is satisfied.  I am satisfied that the sponsorship referred to has been approved and is still in force.

1. In relation to whether you have met in person and you are known to each other personally, there is, considered cumulatively, several sources of information to verify that you have met in person.  You met in Malaysia in about July of 2018.  Your flight records provide support to that also.  And there is evidence from your fiancée as well.  I am satisfied that at the time of application the requirements of clause 300.214 were met.

1. Now, I must also consider whether there was any impediment to this intended marriage.  Clause 300.221A requires that at the time of my decision there is no impediment to the marriage in Australian law.  I am satisfied that there is no impediment.

1. You are not in a prohibited relationship.  You are of marriageable age.  There is consent to the proposed marriage.  And the visa applicant is not a party to another marriage that is recognised as valid in Australia.  So, I have dealt with all other matters other than do the parties genuinely intend to marry and do you genuinely intend to live together.  Clause 300.215 requires that at the time of the application the parties, you and your fiancée, have a genuine intention to marry and that the marriage is intended to take place within the visa period.

1. I have listened to your evidence of about one hour or so today and I will summarise that in a minute.  I want to refer to some of the supporting documents that were provided in relation to those two key issues.  And I should say that I am satisfied that travel from 5 January 2017, 3 July 2018, 3 April 2019, and 20 September 2019.  I will disregard February 2017.  But those three trips I am satisfied they were to Malaysia and that they were for the purpose of you sharing quality time with your fiancée.

1. On 28 September 2022 the tribunal forwarded a request for further information to your representative, which was duly provided and within acceptable periods.  Now, on 26 October 2022 your representative lodged nine pages of submissions in relation to the hearing today.  I have read those submissions; they were well drafted, and they were to point and they did assist me to identify what the issues were.

1. They also referred to the financial aspects that I should find, the nature of the household, the nature of the commitment to each other, the social aspects of the relationship, and correctly summarised the evidence for me.  Leading into the hearing today I reviewed about 180 pages or so of supportive evidence, which I have taken into consideration.

1. There were new statutory declarations that I had viewed.  One was from your older brother.  In his statutory declaration he states that you had told the family about your intentions to marry Fadumo in 2017, that the family had supported you.  They have spoken to her through phone and they talk online whenever there was a chance.  He believes that the relationship is genuine, so he has witnessed all you have been through from the day that you proposed to her, and that he has seen how your relationship has developed.  I give that some weight.

1. There is another statutory declaration from Abdula Balay Mohammed.  I think he is one of your friends and you have known him since 1998.  I have given that positive consideration.  And I accept there is support in particular from your family for this relationship.  I have also considered the statutory declaration of Ahmed Haji Hossmein who seems to have been a friend of yours as well.  In that statutory declaration he indicates that you had introduced your fiancée when she moved to Malaysia.  He is generally supportive of the relationship also.

1. Now, I have carefully reviewed all of the telephone related evidence and that includes from the time of decision, the delegate’s decision.  In my view there is nothing of any concern about those telephone records.  Certainly, in relation to the duration of the calls some calls are quite short, one minute, two minutes.  But there are others, and they are not spread apart by significant periods of time.  There is six minutes, three minutes, six minutes, seven minutes.  I am not going to go through all of those records, there are too many.  But I have viewed them all and in my view they are not inconsistent with a true relationship.

1. I have looked at the records of international telephone calls, some of those vary, five minutes, three minutes, two minutes and so forth.  I think it is fair to say that in phone calls with my own wife it would be pretty unusual for me to be talking for more than two minutes unless it is a major issue.

1. I have taken into consideration a statement of your fiancée and that was dated 19 April 2022.  A statement of yourself that was dated 21 April 2022 also.  I am not going to simply restate all of the evidence that you gave today.  I think it took us a while to get used to talking to each other but we did get some head of steam up and I found you to be generally credible and believable and honest.  I did not gain an impression that you were trying to distract me in any way or that you gave anything that was false or misleading or you were trying to evade questions.  I found you to be a fairly credible person, so I had no problems about your credibility at all.  And it was for that reason I decided I did not need to speak to your fiancée.

1. I have dealt with all the other considerations.  I am satisfied, I am comfortably satisfied, that at the time this application was made by your fiancée you did then have a genuine intention to marry.  And I took into account customary issues.  I have done some research myself to know that I understood how that process takes place under your particular culture and religion.  I am still satisfied that the marriage is intended to take place within the visa period.

1. I have to say, and I hope I am wrong, but your goal to marry in December may or it may not be possible but that is not up to me.  That is something you need to be talking to your representative about.

1. At the time of application the parties did have a genuine intention to marry.  The proposed date for the marriage is within the visa period as required by clause 300.215B.  The requirements of clause 300.215 are met.

1. And as I have said, clause 300.216 requires that at the time of application the parties genuinely intend to live together as spouses.  Spouse is defined in section 5F of the Act, a person is the spouse of another where the 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 purpose of the Act and there must be a mutual commitment of 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 apart on a permanent basis.

1. In considering an application for a Prospective Marriage (Temporary) (Class TO) visa the tribunal must have regard to the considerations set out in regulation 1.15A(3) for spousal relationships.  I have considered all of those matters and, of course, this is an offshore relationship in the sense that your fiancée is offshore.  Many of those things cannot be satisfied and that is not because of any intentions on the party, it is because that you are living so far away, and I give consideration to that.

1. So having regard to the considerations of a spousal relationship and the degree to which these factors may be applied to determine a future intention, the tribunal makes the following findings.  It finds that there is a genuine intention of the parties to live together as spouses at time of application, including those relating to financial and social aspects of the relationship, the nature of the household, if any, and the parties’ commitment to each other.  On the basis of that, the tribunal is satisfied that at the time of the visa application the parties genuinely intended to live together as spouses and, therefore, clause 300.216 is met.  I find that the parties continue to meet the requirements at the time of application.  Clause 300.221 is met.

1. The decision is that the tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration with the direction that your fiancée, the visa applicant, meets the criteria for a subclass 300 prospective marriage visa.

END OF ORAL DECISION

Michael Judd
Member