1412512 (Migration) [2015] AATA 3215 (22 July 2015)

Last Updated: 12 August 2015

1412512 (Migration) [2015] AATA 3215 (22 July 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Miss Sylvana Krajcar

VISA APPLICANT: Mr Issam Riad

CASE NUMBER: 1412512

DIBP REFERENCE(S): OSF2014/012948

MEMBER: Kira Raif

DATE: 22 July 2015

PLACE OF DECISION: Sydney

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

Statement made on 22 July 2015 at 12:34pm

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 is a national of Morocco, born in August 1990. He made the application for the visa on 27 January 2014. The delegate refused to grant the visa on 9 July 2014 on the basis that the visa applicant did not satisfy cl.300.216 and cl. 300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant and the sponsor genuinely intended to live together as spouses. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.
3. The review applicant appeared before the Tribunal on 22 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the couple’s parents. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The review applicant was represented in relation to the review by her registered migration agent.
4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Relevant law

5. 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 husband and wife 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). Whilst 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.

Do the parties genuinely intend to live together?

6. The visa and review applicants presented a substantial amount of documentary evidence in support of the claim that they genuinely intend to live together. It includes evidence of the couple’s frequent communication with one another, statements from third parties, evidence of the financial transfers made by the review applicant to the visa applicant, photographs and other materials. The Tribunal acknowledges this evidence, as well as the oral evidence before it, and acknowledges that, on its face, it may point to the existence of a committed relationship and a genuine intention to live together. However, there were also a number of inconsistencies and deficiencies in the parties’ oral evidence that cause the Tribunal to question the parties’ intention. For example,
   1. The parties’ oral evidence regarding the visa applicant’s employment was not entirely consistent. They gave a different name of the employer. The review applicant informed the Tribunal he worked there about 3 years. The visa applicant said he worked for the present company 2-3 years. The Tribunal is mindful that either period would have commenced since the parties claim they started communicating with each other.
   2. The review applicant said the visa applicant works Monday to Friday and sometimes on Saturdays. The visa applicant said he works Monday to Friday and also Saturdays and Sundays. The review applicant made no mention of Sundays, although she informed the Tribunal that he does not work frequently on Sundays.
   100. The visa applicant said he works from 9 am to 1 pm. The review applicant said he works from 3 or 4 pm to 1 am.
   4. The review applicant informed the Tribunal she has been living at her current place for about two years following the death of her father. The visa applicant said the father passed away in 2006 and he was not sure when she moved to her current place. The review applicant then informed the Tribunal that she has been living at the current place for about three years and she moved there shortly before she travelled to Morocco for the first time. Again, the Tribunal notes that the parties claim they communicated with each other for several months before the review applicant’s visit to Morocco and would have been in contact at the time the review applicant moved to her current place, so there is no reason the visa applicant should be unaware of when it happened.
   5. The review applicant informed the Tribunal she started new work two days before the hearing. The visa applicant was aware of that new job but had no knowledge of the type of work the sponsor was doing or the company she worked for, stating they did not have a chance to discuss it yet. The Tribunal considers it problematic, given the parties’ claim they communicate very frequently. The review applicant informed the Tribunal she had not explained the nature of the job to the visa applicant as they had limited communication in the last few days.
   6. The review applicant suggested she and the visa applicant first started communicating with each other around April – May 2012, although she was not sure. The visa applicant said it was in late 2011. The review applicant informed the Tribunal she is not good with dates.
   7. The review applicant informed the Tribunal it took about three months for the online conversations to become more personal. The visa applicant suggested it took 6-7 months for personal communication to start.
   8. The review applicant informed the Tribunal she was the one who first spoke about her feelings for the visa applicant. The visa applicant said he was the one who first spoke about their feelings for each other.
   9. The review applicant informed the Tribunal that she tried to stop the relationship and they both agreed to it but it did not happen. The visa applicant said neither of them tried to stop the communication or the relationship. The review applicant pointed out that there is evidence of that conversation on Facebook and it did happen. However, the Tribunal’s concern is not with whether that conversation took place but with whether the parties’ evidence is truthful and reliable. If that conversation did take place, the Tribunal is concerned about the visa applicant’s decision to deny it.
   10. The review applicant informed the Tribunal she and the visa applicant discussed where they would live after the wedding before she left Morocco on the first visit. The visa applicant said that discussion took place after she returned to Australia.
   11. The review applicant said she and the visa applicant paid for the engagement and the family did not help. The visa applicant said his father helped financially. The review applicant said they did talk about it but the visa applicant may have forgotten when it happened. The review applicant suggested that the visa applicant tried to make himself ‘look like a man’ and it was his father who paid. While the Tribunal does not consider it relevant who paid for the engagement, the Tribunal is concerned about the different answers provided by the parties and the credibility of their evidence.
   50. The review applicant informed the Tribunal all arrangements for the engagement were done after she travelled to Morocco and no arrangements were made before she travelled. The visa applicant said the arrangements were done before the review applicant travelled to Morocco because he did not want to be busy with these after her arrival. The review applicant explained there was not a real plan, no date or place were arranged until after she travelled.
   13. The review applicant informed the Tribunal that the visa applicant spoke to her sister 3-4 months after she returned from Morocco after the engagement and he spoke to her mother also after she returned from Morocco following the engagement. The visa applicant said he spoke to the mother and the sister before the engagement. The review applicant suggested that the visa applicant misunderstood the term ‘engagement’ and would not remember the dates anyway.
   14. The review applicant said the visa applicant’s sister has finished the Economics course and is looking for a job. The visa applicant said she has one more year to study before she finishes school. The review applicant suggested that the sister finished school and needs to complete work experience. The Tribunal is mindful that this is not the evidence of the visa applicant.
   15. The review applicant informed the Tribunal she sent the visa applicant money on 2-3 occasions. The visa applicant said she sent money 5-6 times. The review applicant said she sent $400 – 500 in the past. The visa applicant said she sent $200 - $300. The review applicant explained the amounts differ because of the conversion rates but the Tribunal is mindful that both parties spoke about the amounts in dollars rather local currency. The review applicant then said she sent money on four occasions (the Tribunal acknowledges that the receipts had been provided).
   16. The Tribunal asked the parties about the visa applicant’s future employment in Australia. The review applicant said she has friends working in a warehouse to do work similar to what the visa applicant does in Morocco and he has friends doing concreting who might offer him a job. The visa applicant said they did discuss his future employment with the review applicant and her mother has a friend who may offer him a job but it would be different work to what he does in Morocco. The review applicant informed the Tribunal she did discuss the matter with the visa applicant but he might not remember the details because he is prepared to do anything. The Tribunal considers it odd that the visa applicant would not be able to state what kind of work he might be doing, if they did have that discussion.
7. The Tribunal acknowledges that many of these matters are of little significance, although the others are of more concern. The Tribunal also acknowledges, and accepts, the submission from the review applicant and her representative that the mere fact that some inconsistencies exist in the parties’ oral evidence does not mean the relationship is not a genuine one or that they will not live together as spouses. However, these matters are of concern to the Tribunal, given the parties’ claim that the relationship had existed for a number of years and given the significant level of communication between them.
8. The review applicant’s representative submits that the inconsistencies need to be put in perspective. The visa applicant is a younger person and comes from a country that is not as civilised or industrialised as Australia and his level of knowledge or education is not comparable. The representative provided an example that the visa applicant may not be able to explain the type of work he might be doing in Australia. The Tribunal does not accept that claim. The Tribunal does not accept that coming from Morocco, the applicant would be incapable of understanding the concept of a car warehouse or concreting work that the review applicant had proposed for him.
9. The representative noted that three years had passed since the parties formed a commitment, which is a long time to remember dates and details. The Tribunal notes, however, that the issue is not about specific dates but broader issues. The representative notes that both families, and parties in particular, accept and support the relationship. The Tribunal acknowledges that parents gave evidence in support of the relationship and accept that they are aware of the relationship and support the relationship.
10. The representative suggests that the Prospective Marriage visa is designed to allow the sponsor to bring someone to Australia to get to know the person for nine months and if the relationship does not work out, the sponsorship may be cancelled. The representative submits that the sponsor should be given the opportunity to fall in love and to see if the relationship will endure. The Tribunal notes, however, that it must be satisfied that the parties do intend to live together as spouses. It is not enough to state that the visa is to allow for a trial period to see whether the relationship works in the future.
11. The Tribunal acknowledges that the parties claim they had been in communication since 2011 or 2012. The Tribunal accepts that the review applicant made two trips to Morocco and stayed at the home of the visa applicant’s family. The Tribunal accepts that the parties communicate with each other and that the review applicant sent money to the visa applicant on a number of occasions. The Tribunal accepts that the relationship is recognised and supported by the parties’ immediate families and is socially recognised more widely.
12. However, despite all these factors, the Tribunal is not satisfied that the parties genuinely intend to live together as spouses. The Tribunal has formed the view that the visa applicant had not been entirely truthful in his evidence, having regard to the inconsistencies noted above, and the Tribunal is of the view that he had exaggerated aspects of his evidence because he believed it would improve his chances of obtaining the visa. The Tribunal is not entirely convinced that the visa applicant is committed to this relationship or a life together with the sponsor as spouses.
13. The Tribunal also remains unconvinced by the parties’ evidence in relation to the inception of the relationship. They claim to have been communicating online for several months. They gave different evidence about when such communication became personal. The parties did not see each other in person until the review applicant travelled to Morocco and the visa applicant proposed to her about two weeks later. The review applicant repeatedly informed the Tribunal that she needed time to get to know the visa applicant more, for example when asked why the parties had not registered marriage. If that was the review applicant’s view of the relationship, it is unclear to the Tribunal how the parties were able to form a mutual commitment to the relationship within a fortnight of meeting each other in person.
14. Overall, the Tribunal acknowledges that there is a substantial amount of evidence, including the parties’ oral evidence, that suggests they have a mutual commitment to the relationship and will live together as spouses. However, having regard to all the concerns outlined above, the Tribunal is not satisfied that there is a mutual commitment to the relationship. That is, the Tribunal is not satisfied that the visa applicant views the relationship as a long term one. Having considered the totality of the evidence before it, the Tribunal is not satisfied that both parties have a genuine intention to live together as spouses. The Tribunal is not satisfied that the visa applicant meets cl. 300.216.

Conclusion

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

DECISION

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

Kira Raif
Senior Member