Zeon (Migration)

[2022] AATA 2190

Zeon (Migration) [2022] AATA 2190 (12 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jennie Dempster Zeon

VISA APPLICANTS:  Mr George Kaifa Quoi
Ms Janneh Massaquoi Quoi
Ms Hawa Kamara Quoi
Mr George Kaifa Quoi
Mr Varney Kamara Quoi
Mr Abraham Tango Massaquoi Quoi
Mr Teddy Kai Quoi
Mr Kaiscure Shalon Quoi

REPRESENTATIVE:  Mr Ben Aylen (MARN: 0639670)

CASE NUMBER:  1917244

HOME AFFAIRS REFERENCE(S):          BCC2018/3964611

MEMBER:Peter Emmerton

DATE:12 May 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

· cl 300.216 of Schedule 2 to the Regulations

· cl 300.221 of Schedule 2 to the Regulations

The Tribunal finds that the secondary applicant’s applications should be considered in the context of the delegate’s decision regarding the primary applicant satisfying the remaining criteria for a subclass 300 visa decision.

Statement made on 12 May 2022 at 12:23pm
CATCHWORDS
MIGRATION –Prospective Marriage (Temporary) (Class TO) visa – subclass 300– they have 2 biological children from their union – at the time of the visa application the parties genuinely intended to live together as spouses – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cls 300.215, 300.216, 300.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions 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 27 June 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 300.216 and cl 300.221.

3. The delegate refused to grant the visas on 30 April 2019 on the basis that the first named visa applicant did not satisfy cl 300.216 and 300.221 of Schedule 2 to the Regulations because they were not satisfied that the applicant and the sponsor have a mutual commitment to a shared life together as a married couple to the exclusion of all others.

4. The review applicant appeared before the Tribunal, via video on 12 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence via video from Mr George Kaifa Quoi, the applicant. In addition, the Tribunal took evidence via video from Ms Angel Zeon, (sponsor’s daughter).

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant and the sponsor have a mutual commitment to a shared life together as a married couple to the exclusion of all others.

8. Clause 300.221 requires that, at the time of decision, the visa applicant continues to satisfy the criteria in cls 300.211, 300.214, 300.215 and 300.216. Those criteria require that, at the time the visa application was made, the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; the parties have met and are known to each other personally; the parties genuinely intend to marry and intend to do so during the visa period; and the parties genuinely intend to live together as spouses. Accordingly, in order to determine whether 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.

   Does the visa applicant intend to marry an eligible person?

9. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal has evidence before it provided by the department’s movement records that the sponsor became an Australian Citizen on 13 February 2007. The Tribunal was presented with written evidence and verbal evidence to indicate that there is a clear intention to marry as soon as it is practically possible. The information provided by both members of the couple was complimentary and was reinforced by the statements made by the witness. Accordingly, the requirements of cl 300.211 are met.

   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. The Tribunal accepts that the couple first met in December 1985 in Liberia. The couple produced 2 children and were at the time unable to live together due to the forced marriage of the sponsor at the time. It also accepts that they lost contact during in Liberia and regained contact when the sponsor visited Guinea in 2010. The parties re-established their relationship when the sponsor travelled to Liberia during this time. It is accepted that the applicant proposed marriage vis Facebook messenger in 2014.

11. The department has declared the DOB of the sponsor and the DOB of the applicant. The Tribunal accepts this as fact and therefore both parties have met personally since turning 18.

    The visa applicant has declared 2 previous relationships which were not disputed by the delegate and the Tribunal has no evidence before it to indicate that the claims are inaccurate.

    The first relationship was with Ms Marie Maima KROMAH from 1990 to 2009.
    There are two children declared from this relationship. These are:

    • Teddy Kai Quoi (2003)
    •   Kaiscure Shalon Qui (2004)

    The second relationship was with Ms Ruth Kemah Saymavla from
    2005 to 2014. There are three children declared from this relationship. These are:

    • Darius Smith Quoi (2006)
    •   Catherine Amie Quoi (2008)
    •   Patrick Mahomed QUOI (2015)

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

    Do the parties genuinely intend to marry?

12. 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. When the Tribunal questioned both parties during the hearing it was satisfied that the answers were genuine and were not contradictory in nature. Both parties expressed a desire to marry as soon as possible within the visa period once a visa approval has been granted. They clearly expressed views that indicated such planning discussions had taken place. The delegate has not provided any verifiable evidence to the contrary. The exact date will rely upon the visa approval date. This information was verified by the witness.

13. At the time of application, the parties had a genuine intention to marry and satisfy the requirements of cl 300.215(a). The proposed date for the marriage is 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?

14. 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 reg 1.15A(3) for spousal relationships: reg 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.

15. 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.

    Financial aspects

16. The Tribunal notes the ongoing transfer of monies to the visa applicant from the sponsor over an 8-year period as detailed below.

    • RIA Money Transfers of:

    02/08/2021, 19/01/2021, 16/12/2020, 15/06/2020, 23/05/2020, 06/08/2019, 24/06/2019, 08/04/2019, 04/02/2016, 22/12/2015, 03/12/2022, 16/05/2015, 20/04/2015, 17/10/2014, 03/10/2014, 01/10/2016, 04/07/2017, 21/04/2017, 04/07/2017, 21/04/2017, 31/03/2017, 20/07/2017, 06/06/2017, 20/07/2017, 31/03/2017, 12/01/2018, 08/06/2017, 12/01/2018, 31/10/2017, 23/02/2019, 16/03/2019,

    ·    Moneygram receipts of:

    16/05/2015, 22/07/2016, 03/04/2017, 22/09/2014, 23/12/2014, 01/08/2016, 16/03/201908/04/2019, 17/04/2019,

    ·    Western Union Receipts of:

    16/12/2020, 19/01/2021, 24/12/2021, (includes ECOBANK Liberia Slip 21/04/2021)

    In addition, the Tribunal notes the property Transfer Deed to the Applicants. It is dated 22 November 2015, demonstrating joint ownership of a home in Liberia.

    It also notes that the visa applicant has built a holiday home, (photographic evidence, verbal evidence at the hearing as well as written statements), and maintains it for their joint use in Liberia.

    It also accepts evidence that shows the movement of goods from Australia, by the sponsor to the applicant in Liberia. These multiple actions strongly suggest the intention to live together as spouses at the time of application.

    Social aspects

17. There is a range of evidence provided which demonstrates that the couple are known to be together with the intention of marrying. This includes photographs in Church as well as social outings with friends and family members. The Tribunal notes the Statutory Declaration made by the sponsor’s daughter attesting to the relationship and the meeting in Guinea. This was discussed with the witness during the hearing. Corroborating statements were made by the applicants during the hearing regarding the limited social interactions which have occurred when together. It also accepts the Facebook entries as some level of further proof of social interaction.

    Nature of the Household

18. The Tribunal acknowledges that due to the financial constraints, working commitments, Covid-19 restrictions and visa constraints imposed upon the parties, it is not realistic to expect substantial periods of time living in the same household together since declaring their relationship. The Tribunal does however accept that the demonstrated total of approximately 7 months together over the years from 2014 is quite substantial and indicates an ongoing mutual commitment to each other. The Tribunal accepts the statements both verbal and written, that all of the family activities and responsibilities are shared when cohabiting.

    Commitment to Each Other

19. The multiple decade timespan involving the couple and the associated periods when it was possible for a mutual commitment, does within itself, suggest such an ongoing mutual commitment. As does the reality that they have 2 biological children from their union. The Tribunal accepts that at least from the year 2015 the couple have been mutually exclusive. In other words, there is no evidence before the Tribunal, that for some years prior to the visa application and the subsequent visa application in June 2018, that the couple have had anything other than a mutual commitment to a shared life as a married couple to the exclusion of all others.

20. The Tribunal notes that the delegate appears to have placed substantial weight upon the complex and sometimes overlapping relationship record of the couple and their various partners as evidence that the applicant and the sponsor do not have a mutual commitment to a shared life as a married couple, to the exclusion of all others, at the time of application and the delegate’s decision. Therefore, they determined that the applicant fails to meet criteria in section 5F (2) (b) of the Act.

21. There is no evidence before the Tribunal that supports this conclusion. Supposition based on previous behaviours is not evidence that can reliably be extrapolated to determine future behaviours. For the Tribunal to do so, may indicate the propensity to form an opinion based upon moral codes or potential bias. The fact that the applicants have freely admitted the particulars of their previous relationships could be equally utilised to suggest a commitment to each other, from prior to the visa application to the current time.

22. The Tribunal notes the following statement made by the delegate in their decision.

    ‘I have also taken into account the applicant’s request at interview. The applicant requested
    the processing officer to be compassionate towards the children and help them to get to
    Australia. This gives credibility concerns with regards to any information submitted in support
    of this application. I am concerned that the applicant’s intention is to circumvent migration regulations to migrate his and his brother’s children to Australia.’

    The Tribunal acknowledges that this clearly indicates a strong desire, on the part of the visa applicant, to look after his family.  It does not however indicate any intention of wrong-doing nor evidence to support such an assumption. The Tribunal can not be certain of the motivation emanating from this statement made by the visa applicant, beyond what was stated. It acknowledges that the statement appears to suggest a degree of naivety as to how competent and ethical Immigration authorities function such as those operating in Australia. This might reasonably relate to his lived experiences in the region in which he lives. The Tribunal also acknowledges that the visa applicant is a police officer, this may have influenced his trust in the Australian institutions and authorities.

23. On the basis of the above the Tribunal is satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl 300.216 is met.

    Do the parties continue to meet time of application requirements?

24. 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.

25. For all of the reasons expressed in paragraphs 9-22 in this Decision, the Tribunal concludes that the applicant does continue to satisfy 300.211, 300.214, 300.215, and 300.216 at time of decision. Accordingly, cl 300.221 is met. No evidence has been presented to it to the contrary.

26. 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

27. The Tribunal remits the applications for Prospective Marriage (Temporary) (Class TO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl 300.216 of Schedule 2 to the Regulations

    ·cl 300.221 of Schedule 2 to the Regulations

    The Tribunal finds that the secondary applicant’s applications should be considered in the context of the delegate’s decision regarding the primary applicant satisfying the remaining criteria for a subclass 300 visa decision.

    Peter Emmerton
    Member