Australian Immigration Appeals: Partner Visas 2010

Migration Review Tribunal Decision Summaries

Australian Immigration - Partner Visas

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Australian Immigration: Partner Visas - Temporary
Australian Immigration: Partner Visas - Permanent
Australian Immigration: Prospective Spouse Visa
Related Australian Immigration Appeals Articles

Australian Partner Visa - Temporary

0900521
7 July 2010, Sydney
Ms L Symons, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – SPOUSE – CL.309.211 AND CL.309.221 – GENUINE AND CONTINUING RELATIONSHIP – A delegate of the Minister refused to grant Australian immigration visa applicant a Partner visa on the basis that the visa applicant did not satisfy cl.309.211 and cl.309.221 of the Regulations because the delegate was not satisfied that Australian immigration visa applicants were in a genuine and continuing spouse relationship. The review applicant claimed that when he and his late wife were holidaying in Hong Kong, they met the visa applicant’s niece. He claimed that when his wife died, he sent a letter to her niece informing her of what had happened. He claimed she informed him that her aunt had recently lost her husband in similar circumstances. When he indicated he was interested in seeing her aunt, she put him in touch with her. He claimed he contacted the visa applicant by email soon after and he went to China to meet her. They stayed together in a hotel and then in her hometown, where he met her family. They married the following month because he claimed he wanted to finalise everything as he had no one in Australia. He lived alone and he wanted a partner. He claimed Australian immigration visa applicant was a person with good qualities who cared and had a good family who were respectable people with the same family values as him. He claimed he gave the visa applicant jewellery and they visited tourist attractions and spent time with her family. Since his return to Australia, he claimed they communicated by email and telephone. He had since returned to China for a month for their honeymoon when they visited various places and traveled to other cities. He claimed he financially supported the visa applicant and, although they did not have joint assets, she is in his will and he has bought an apartment in both names. The visa applicant claimed she was retired and supported herself with her savings and money from her sons. She claimed she and the review applicant communicate by emails, letters and telephone and that she could speak basic English. She claimed that when they first met, she had a good impression of him. It was like falling in love at first sight and he was very nice and her family liked him. She claimed they did not have a large ceremony when they married, all her family members were present and there was no marriage banquet after the registration. She claimed they did not do much on their trip, just stayed together with her son, and they did not visit places of interest. She claimed that on his second visit to China, they stayed at her son’s home for a month and did not visit anyone. She claimed they were not young but wished to spend the rest of their lives together. She claimed they would buy a property together and she wanted to come to Australia to look after the review applicant who was old and lonely.

Held: Decision under review set aside.

The Tribunal found the review applicant to be credible, open and straightforward, and that he did not attempt to obscure anything potentially detrimental to his case such as problems communicating with the visa applicant by telephone. The Tribunal found he appeared genuinely committed to the visa applicant and demonstrated good knowledge of her life. The Tribunal generally found the visa applicant to be a credible witness apart from three inconsistencies in her evidence about when the review applicant first began to financially support her, what they did together when the review applicant came to China, and who was present at their wedding. The Tribunal accepted that the visa applicant may have been confused or nervous when giving evidence at the hearing and that the inconsistencies were a result of confusion and not an attempt to mislead the Tribunal. The Tribunal found the visa applicant demonstrated a good knowledge of the review applicant’s life and his circumstances. The Tribunal accepted the evidence in relation to the circumstances in which the couple met and decided to marry. The Tribunal found that the financial aspects, nature of the household, social aspects and the long term commitment to each other was evidence that Australian immigration visa applicants had a mutual commitment to each other. The Tribunal found that the review applicant and the visa applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others at the time of application and at the time of decision. Accordingly, the Tribunal found that Australian immigration visa applicants met the requirements of cl.309.211 and cl.309.221 of the Regulations.

071867393
8 June 2010, Sydney
Mr G Short, Senior Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – SPOUSE – CL.309.211 AND CL.309.221 – GENUINE AND CONTINUING RELATIONSHIP – CREDIBILITY – A delegate of the Minister refused to grant Australian immigration visa applicant a spouse visa as the delegate was not satisfied that the visa applicant was the spouse of the sponsor (the review applicant), within the meaning of r.1.15A of the Regulations. In a statement accompanying the original application the visa applicant stated that he had been introduced to the review applicant by her sister at a dinner party in Guangzhou in October 2005. He said that he had been in Guangzhou on business and that he had known the review applicant’s sister since 2004. The visa applicant said that after the review applicant had returned to Australia they had telephoned and written to each other and then in October 2006 they got married. In a separate statement the review applicant said that the visa applicant had known her sister because they worked in the same industry. She confirmed that she and the review applicant had remained in touch after she had returned to Australia and that they were married in October 2006. Both the visa and review applicants provided statements from their respective sisters and other parties in support of the application and they each gave evidence at a Departmental interview. Australian immigration visa applicants also gave evidence at the Tribunal hearing and later provided submissions, including statutory declarations from friends of the visa applicant who claimed to have delivered money to Australia for the review applicant on the visa applicant’s behalf.

Held: Decision under review affirmed.

The Tribunal accepted that the visa applicant had been introduced to the review applicant by her sister when she visited China in October 2005 and that Australian immigration visa applicants were married in Fujian in October 2006. The Tribunal did not accept, however, that the visa applicant and the review applicant had a mutual commitment to a shared life as husband and wife or that they saw their relationship as a long-term one. The Tribunal found that inconsistencies in Australian immigration visa applicants’ evidence and the differing explanations given by each applicant for these inconsistencies, cast doubts on the veracity of their evidence about the development of the relationship. For instance, the Tribunal noted that Australian immigration visa applicants had given inconsistent evidence in relation to the date, nature and location of their wedding banquet and it did not accept that, despite the explanations offered by Australian immigration visa applicants, the review applicant would forget matters such as whether there was one table or two at the wedding banquet, or whether it finished around 7.00 pm or around 10.00 pm. The Tribunal also noted that although the visa applicant had denied he had ever previously been in Australia, a record existed of someone from Fujian with his name and date of birth having applied for refugee status in Australia in 1998. The Tribunal did not accept the visa applicant’s explanation that his cousin may have used his ID to lodge a protection visa application, as a comparison of the photographs accompanying each application indicated that it was the visa applicant who had applied for refugee status in Australia in 1998. The Tribunal considered that this suggested the visa applicant had wanted to come to Australia for some time and that he saw his marriage to the review applicant as a means to that end rather than having a commitment to a long-term relationship with her. After careful consideration of all of the evidence, including the statements which indicated that Australian immigration visa applicants’ friends and relatives believed their relationship to be genuine and continuing, the Tribunal gave greater weight to the view it had formed of the credibility of Australian immigration visa applicants and their commitment to the relationship, than to such supporting evidence. Accordingly, the Tribunal found that the relationship was not genuine and continuing and that Australian immigration visa applicant did not satisfy cl.309.211 or cl.309.221 of the Regulations.

0900190
8 April 2010, Sydney
Ms P Leehy, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – SPOUSE – CL.309.211 – GENUINE RELATIONSHIP – A delegate of the Minister refused to grant the visa applicant a Partner visa on the basis that he did not satisfy cl.309.211 or cl.309.221 of the Regulations. The delegate was not satisfied that the review applicant and the first named visa applicant were in a spouse relationship within the meaning of the legislation, finding that there was a lack of supporting evidence for the existence of a spouse relationship. Australian immigration visa applicants provided statutory declarations in which they claimed to have met at the airport in Accra when the visa applicant had offered the use of his mobile phone to the review applicant whose pre-arranged car had not arrived to collect her. The review applicant later invited the visa applicant to lunch and they got to know each other and fell in love. They claimed that during the review applicant’s stay in Ghana they supported and helped each other physically and emotionally and grew very close. Before the review applicant returned to Australia they had a traditional and a formal wedding in Ghana and they claimed they had communicated at least once a week ever since. The review applicant appeared at the Tribunal hearing and the visa applicant gave evidence by phone from Ghana. Australian immigration visa applicants also provided the Tribunal with documentary material in support of the application including money transfer receipts, evidence of their correspondence by post and email, photos, bills and statutory declarations by the review applicant and three other persons.

Held: Decision under review set aside

The Tribunal was impressed at the hearing with the review applicant’s evident affection for the visa applicant, her devastation at the refusal of the visa application and her determination to ensure that the parties were reunited. The Tribunal noted that the parties gave consistent evidence in relation to their ongoing communication with each other, their plans for the future and their time together in Ghana during the review applicant’s recent visit. The Tribunal found that the parties had demonstrated, by their evidence and in particular by the evidence of regular and intimate communication between them, that they were committed to each other and well aware of each other’s emotional and other needs. The Tribunal also found that the review applicant and visa applicant were married to each other under a marriage that was recognised as valid for the purposes of the Act. On the evidence before it, the Tribunal was satisfied that the parties saw their relationship as a long-term and exclusive one, to which they were both committed. Accordingly, the Tribunal found that the visa applicant satisfied the requirements of cl.309.211 and cl.309.221 of the Regulations.

0907985
8 April 2010, Adelaide
Ms C Wilson, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – SPOUSE – CL.309.211 – R.1.15A – DEFINITION OF SPOUSE – A delegate of the Minister refused to grant Australian immigration visa applicant a spouse visa on the basis that the visa applicant did not satisfy cl.309.211 and cl.309.221 of the Regulations because the delegate was not satisfied the parties were in a spousal relationship. The delegate was concerned by the lack of evidence of contact between the parties from the time the parties met in 2006 to the time of visa applicant’s proposal in 2007. The delegate was also concerned about inconsistent accounts of how the parties had first met and the lack of knowledge on the visa applicant’s part of the review applicant’s family and life in Australia. The review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Vietnam. The review applicant spoke about her life in Australia, her children, the development of her relationship with the visa applicant and how they spent their time together in Vietnam during her visits. The visa applicant gave consistent evidence. He demonstrated knowledge of Australian immigration visa applicant’s children and their lives, gave a consistent account of how they met, how they spend their time together in Vietnam and how often they talk on the phone. He stated that he wished to come to Australia to reunite with his wife and make a happy family. Australian immigration visa applicants also submitted a number of documents in support of their application including photographs of their wedding in Vietnam in 2007, money transfer receipts and letters.

Held: Decision under review set aside

The Tribunal found the review applicant and visa applicant to be genuine witnesses and accepted their oral evidence. The Tribunal gave little weight to the inconsistencies in the information provided to the Department. The Tribunal gave more weight to the consistent oral evidence provided at the hearing of how the relationship developed and how they spent their time together in Vietnam on the six visits the review applicant had made there since 2006. The Tribunal was satisfied on the basis of the oral evidence, telephone records, letters between the parties and the considerable time the couple spent together in 2008 and 2009 that they had demonstrated a commitment to each other. The Tribunal was also satisfied that they had demonstrated a mutual commitment to their relationship, that they relied on each other for emotional support and that the relationship was exclusive. The Tribunal found that, at the time of application, Australian immigration visa applicants were in a married relationship within the meaning of r.1.15A(1) and that at the time of decision, they continued to be in a married relationship. The Tribunal therefore found that at the time of the visa application the visa applicant was the spouse, within the meaning of r.1.15A, of the review applicant who is an Australian citizen and met the requirements of cl.309.211(2) of the Regulations. Further, the Tribunal found that at the time of its decision, Australian immigration visa applicant continued to be the review applicant’s spouse, and satisfied cl.309.221 of the Regulations. Accordingly, the Tribunal set aside the decision and found that Australian immigration visa applicant met the requirements for the grant of a spouse visa.

0902567
26 February 2010, Adelaide
Ms D Morgan, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – CL.309.211 – GENUINE DEFACTO RELATIONSHIP – A delegate of the Minister refused to grant the primary applicant and her infant son Partner visas on the basis that the review applicant did not declare his relationship with the visa applicant when he applied to migrate in 2005. The delegate found that the review applicant knew the visa applicant was pregnant in March 2005 but he proceeded with his plans to migrate and he did not return to Zimbabwe for the birth of his claimed son or for his traditional marriage ceremony to the visa applicant in December 2005. The delegate also found that when the review applicant visited the visa applicants in January 2007, he stayed for only one month. The review applicant claimed that they committed to a long term spouse relationship in December 2003, and began a de facto relationship in January 2004. He claimed he came to Australia to study and to be with his father in June 2005. His son was born in 2005 but his birth was not registered until 2007 when Australian immigration visa applicant returned to Zimbabwe to confirm paternity. He claimed not to have the finances to travel for his customary marriage and his father opposed the relationship and refused to help him. He claimed he only stayed in Zimbabwe for a month because he had to return to Australia to work. He claimed he traveled to China in 2008 to find work but his mother died suddenly in 2008 so he made an unplanned visit to Zimbabwe. He provided evidence that his sister supported him financially. The review applicant provided evidence of money transfers and phone calls to his partner in 2008 and a summary of emails to her between 2005 and 2009. He claimed he and his partner married customarily before their son was born and they did not register the marriage. He claimed he did not declare his relationship because he thought it would end when he came to Australia. He claimed they cohabited in December 2007 when he was in Zimbabwe and the next time was in 2008 when his mother died. He did not deny they had not yet conducted a household together. He claimed he was committed to a long term relationship when he was in Australia and he learned of his partner’s pregnancy. He claimed he had no money to visit the visa applicants prior to January 2007 and he had not considered borrowing money. Australian immigration visa applicant claimed they would marry in Australia but they had not made specific plans. He claimed he would undergo a DNA test to prove his paternity if required. He claimed his son was a compassionate and compelling circumstance for the grant of the visa and it would be better for Australian immigration visa applicants to be together with him as a family.

Held: Decision under review affirmed.

The Tribunal found that the Zimbabwean Marriage Act required the presence of the parties at the solemnization of their marriage and prohibited contracting a valid marriage through another person. Accordingly, the Tribunal was not satisfied the visa applicant was the spouse of the review applicant or that Australian immigration visa applicants were validly married under Zimbabwean law. However, the Tribunal found that Australian immigration visa applicants did satisfy the requirements of a de facto relationship at the time of application and they were assessed accordingly. The Tribunal considered the financial aspects of the relationship and found Australian immigration visa applicants had mostly been financially independent of each other. The Tribunal further found that, as the review applicant had spent at most 8 weeks physically with his son, he had negligible responsibility for the care of his son. The Tribunal was not satisfied by the meager evidence before it regarding the social aspects of the relationship or that Australian immigration visa applicants were recognized by their respective communities as being in a defacto spouse relationship. The Tribunal accepted the parties were customarily married by proxy in Zimbabwe while the review applicant was in Australia. The Tribunal further accepted that when the review applicant learned his partner was pregnant to him he decided he would commit to a long term relationship with her. The Tribunal was gravely concerned about the very brief time the parties had spent physically together or that the parties had ever formed a household. The Tribunal accepted the review applicant traveled to Zimbabwe in 2007 and spent one month with the visa applicants and this was his first meeting with his claimed son who was aged 1 year 3 months. The Tribunal found that in 2007 and 2008 the review applicant resided in China and his visit to Zimbabwe in late 2008 was not planned but was a consequence of his mother’s death. The Tribunal found that since 2005 he had spent only 8 weeks physically with his partner and his son. The Tribunal considered Australian immigration visa applicant’s claimed financial inability to travel was not indicative of a person in a genuine spouse relationship and that he could have borrowed money to be present for his son’s birth and to give support at that very significant time in their lives. The Tribunal was satisfied the review applicant was able to afford three trips to China since late 2007 and this supported the finding that he was not committed to a defacto spouse relationship. The Tribunal acknowledged the contact made between the parties but this did not persuade the Tribunal that the review applicant was committed to a genuine and continuing defacto relationship. If the Tribunal accepted that the child is a child of the relationship, it would usually follow that a child was a compelling and compassionate circumstance. However, the Tribunal found that, as there was no mutual commitment to the relationship, there was no need to consider whether there was a defacto relationship or whether compelling and compassionate circumstances affected this case. Therefore, the Tribunal found that Australian immigration visa applicant did not satisfy cl.309.211(2) of the Regulations.

0805075
8 February 2010, Melbourne
Mr P Murphy, Senior Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 (SPOUSE (PROVISIONAL)) – CL.309.211 – CL.309.221 – R.1.15A – GENUINE AND CONTINUING RELATIONSHIP – A delegate of the Minister refused to grant Australian immigration visa applicant a Subclass 309 visa on the basis that the parties had “misrepresented themselves, (their) motives, (the) relationship and various aspects of their lives” and that the social aspects of their relationship were not that of a couple genuinely intending to live together in a spousal relationship. The review applicant was a 60 year old Vietnamese born male who had three children from a previous relationship. The visa applicant was a 44 year female who was living in Vietnam and had two children, the younger of whom was the second visa applicant. The visa applicant claimed that she met the review applicant in Australia at a BBQ organised by her sister and that following this, the review applicant often visited her and they went shopping, sight seeing and she cooked meals for him. She claimed that about one month after they met the review applicant proposed. He moved in with the visa applicant at her sister’s house about two weeks later and they were married the following month. The review applicant claimed that he no longer had contact with his elder two children. He did have some contact with his youngest son but he had not told him about the marriage as he was concerned he would react badly given the circumstances under which Australian immigration visa applicant had separated from his mother. Australian immigration visa applicants claimed that they were Buddhists, however, they had a civil celebrant perform their wedding as they claimed they wanted a simple ceremony. The review applicant claimed that he financially supported the visa applicant by sending her $100 a month. The parties provided supporting documents including marriage, citizenship and birth certificates, identity cards, passport extracts, and supporting statutory declarations. The review applicant provided photos of when he visited the visa applicant in Vietnam for four weeks and he provided evidence of money transfers to her. The Tribunal received oral evidence at the hearing from the visa applicant’s sister and a long term family friend, both attesting to the genuineness of the relationship. The Tribunal also received an anonymous submission claiming that the relationship was not genuine.

Held: Decision under review set aside.

The Tribunal had some reservations as to the genuineness of the relationship, relating to inconsistencies between the evidence of the visa applicant and other evidence about the circumstances leading up to the marriage proposal, their activities following the wedding, and in particular whether the parties attended a Buddhist temple on their wedding day. It found that, to some extent, these concerns were explained by the adviser’s submission relating to the health and mental state of the visa applicant and the evidence of the review applicant and the visa applicant’s sister. Whilst the Tribunal had some reservations as to the reliability of the visa applicant’s evidence on these aspects, its reservations were not sufficient to draw an adverse conclusion about the visa applicant’s credibility. Similarly, whilst the Tribunal had some concerns about the manner in which documentary evidence relied on by the parties was created and it was prepared to accept the visa applicant’s sister’s explanation that, to some extent, the confusion over the documents may have been due to her attempts to assist her sister rather than any attempt to falsify or provide inaccurate information. The Tribunal noted that there was some divergence in the parties evidence as to whether they first cohabitated before or after they were married, however it was prepared to accept that the visa applicant may have been embarrassed to acknowledge co-habitation prior to marriage, which may explain her inconsistent evidence. The Tribunal accepted that it was plausible that the review applicant had not told his younger son of the marriage because he was fearful it would further damage their relationship. The Tribunal also had some concerns about the speed at which they decided to marry and whether this suggested that the marriage was entered into before they had any real depth of understanding about each other. However, it noted that they were each able to independently provide consistent evidence as to their knowledge of each other, their past and their stated future plans, which indicated a degree of understanding. The Tribunal noted that it was unable to test the merits of the anonymous assertions contained in the ‘dob in’ letter, and for this reason it disregarded its contents and placed no weight on it in reaching its decision. The Tribunal was therefore satisfied that the weight of material available to it supported the conclusion that Australian immigration visa applicants had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that their relationship was genuine and continuing.

0904513
2 February 2010, Melbourne
Ms D Jordan, Member

PARTNER (TEMPORARY) (CLASS UK) – SUBCLASS 820 – CL.820.211(2) – SCHEDULE 3 CRITERION 3004 – COMPELLING REASONS – A delegate of the Mnister refused the visa application as the visa applicant did not satisfy cl.820.211 as he did not satisfy the Schedule 3 criteria and the delegate was not satisfied that there were compelling reasons for waiving this criteria. Australian immigration visa applicant claimed that he and his sponsor met in Mexico in March 2007 and began a relationship and that in September 2007 they decided to commit to a long-term relationship. Australian immigration visa applicant claimed that he sought immigration advice around August 2008 regarding lodging a partner visa application but was advised that his current living circumstances (travelling and living in a mobile home) would count against his application. Australian immigration visa applicant claimed it was suggested that he instead find a business sponsor and lodge a Subclass 457 visa application, which he did in November 2009. When this application was refused, Australian immigration visa applicant then lodged a spouse application, however, this application was lodged more than 28 days after he held his last substantive visa thereby not meeting the Schedule 3 criteria. Australian immigration visa applicant claimed that he had been given incorrect migration advice and that if he had lodged his spouse visa application on the day he lodged the Subclass 457 application, the spouse visa application would have been lodged within 28 days of him holding a substantive visa and he would have satisfied the relevant criteria.

Held: Decision under review set aside.

On the basis of the evidence before it, the Tribunal was satisfied that, for the period of 12 months immediately preceding the date of the visa application, Australian immigration visa applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship was genuine and continuing and that they had been living together or not been living separately and apart on a permanent basis. Accordingly, the Tribunal was satisfied that Australian immigration visa applicant was in a de facto relationship with the sponsor and therefore was the ‘spouse’ of the sponsor within the meaning of r.1.15A. The Tribunal found that it was not in dispute that Australian immigration visa applicant did not have a substantive visa at the time of application. The issue in this case was whether Australian immigration visa applicant satisfied the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. As the Tribunal found that the application for the visa was not made within 28 days of the relevant day, Australian immigration visa applicant did not satisfy criterion 3001. The Tribunal was then required to consider whether there were compelling reasons for not applying the criteria. The Tribunal found that Australian immigration visa applicant and his sponsor had been in a relationship since March 2007 and that they have lived together at various locations since that time, first travelling overseas together and then in Australia since December 2007. The Tribunal considered that this was a long standing relationship and, given the length of time they had lived together as a couple, they would suffer considerable hardship if Australian immigration visa applicant was required to depart Australia in order to submit a new visa application offshore. The Tribunal was satisfied that there were compelling reasons to waive the Schedule 3 criteria. Accordingly, the Tribunal found that Australian immigration visa applicant met cl.820.211 of the Regulations.

0807893
28 January 2010, Adelaide
Ms B Wells, Member

PARTNER – (TEMPORARY) (CLASS UK) – SUBCLASS 820 – (SPOUSE) – CL.820.211 – CL.820.223(1)(a) – PIC 4001 – CHARACTER TEST – A delegate of the Minister refused to grant Australian immigration visa applicant a Subclass 820 visa as Australian immigration visa applicant had provided a police certificate from Ghana which was found to be fraudulent. The delegate was therefore not satisfied that the visa applicant had passed the character test. The visa applicant and sponsor gave evidence at a hearing before the Tribunal that they met in October 2005, they spent a lot of time together, and started living together in mid February 2006. They did not live together between August 2006 and November 2007 however, because the sponsor was given a visa to come to Australia. In November 2007 Australian immigration visa applicant was able to join the sponsor in Australia and they have lived together since that time. At the time of the hearing the sponsor was pregnant with the couple’s second child. Australian immigration visa applicant also gave evidence at hearing and provided a statutory declaration about the process by which he had obtained the police clearance document he had provided to the Department. He claimed that he and the sponsor asked a friend in Accra to obtain the police clearance. The friend spoke to a police officer at the police station about the issue and was told it would cost about US$300. Australian immigration visa applicant had then provided this money, along with fingerprints and passport sized photographs, and the clearance was produced. The review applicant said that he thinks his friend may have given the money required for the clearance to a Ghanaian police officer who may not have had the authority to produce an original document but may have made the police clearance document which was provided and pocketed the money himself. Australian immigration visa applicant provided a second declaration describing the efforts he had since made to obtain a new police clearance.

Held: Decision under review set aside

The Tribunal found that the sponsor became an Australian permanent resident in 2006. The Tribunal found the review applicant and visa applicant convincing and credible witnesses and therefore gave their evidence considerable weight. The Tribunal noted that during the hearing both parties provided consistent accounts in relation to almost all aspects of their relationship, including the development of their relationship, the time that they have lived together, the sharing of their finances and their social activities together. The Tribunal found that the review applicant is, and was at the time of application, the spouse of the sponsor within the meaning of r.1.15A of the Regulations. The Tribunal also found that the review applicant met PIC 4001 as it was satisfied, “after appropriate inquiries”, “that there is nothing to indicate that Australian immigration visa applicant would fail to satisfy the Minister that the person passes the character test”. In making this finding the Tribunal referred to independent information which indicated that the Ghanaian police force may engage in corrupt practices when dealing with an application for a police clearance certificate. The Tribunal found that the review applicant’s failure to obtain a valid Ghanaian clearance was not caused by any fault on his part and the Tribunal accepted his evidence that he had never committed, or been accused of committing, a criminal offence. Accordingly, the Tribunal found that Australian immigration visa applicant met the criteria in cl.820.211 and cl.820.221 of the Regulations, as well as public interest criteria 4001, as specified in cl.820.223(1)(a) of the Regulations.

0809032
10 January 2010, Melbourne
Mr B Hely, Member

PARTNER (TEMPORARY) (CLASS UK) – SUBCLASS 826 (INTERDEPENDENCY) – R.1.09A – 12 MONTH REQUIREMENT – A delegate of the Minister refused Australian immigration visa applicant’s Subclass 826 visa application as Australian immigration visa applicant did not satisfy cl.826.212 of the Regulations. The delegate was not satisfied that Australian immigration visa applicant and her sponsor had been in an interdependent relationship for 12 months at the date of application and found that there were no compelling and compassionate grounds to warrant the waiver of the 12 month requirement. Australian immigration visa applicant claimed that she met the sponsor’s previous partner when she went to the USA to do volunteer work. She claimed that she then travelled to Australia and stayed for approximately one month with both the sponsor and the sponsor’s previous partner, who were then living together. Australian immigration visa applicant claimed that during the following year she returned to Australia and again stayed with the couple. She claimed that there was a strong attraction between her and the sponsor from those initial meetings and they kept in frequent contact whilst she was studying in the USA Australian immigration visa applicant claimed that after her second visit the sponsor separated from her partner and the following year the sponsor travelled to the USA to spend time with Australian immigration visa applicant, although at this time Australian immigration visa applicant was still in a relationship. The sponsor stayed with Australian immigration visa applicant and her partner during this trip. Australian immigration visa applicant claimed that the relationship with her partner ended soon after due to her partner’s infidelity, and the relationship with the sponsor developed from this time, with Australian immigration visa applicant moving to Australia in 2008 when she began living with the sponsor. Australian immigration visa applicant claimed that she and the sponsor commenced an interdependency relationship in May 2007, four months after her previous relationship ended, during the period when she was completing her degree in the USA She stated that she and the sponsor communicated frequently and became serious in their resolve to find a way to make their relationship work, which included exploring the different options for migration to either Australia or the USA. Australian immigration visa applicant claimed that the relationship had taken on a physical element the previous December during the sponsor’s stay with Australian immigration visa applicant and her partner, and that they had lent money to each other from May 2007, although they had only formally combined their finances on her arrival in Australia. Australian immigration visa applicant claimed that they did not wait to satisfy the 12 month relationship requirement as her visa did not entitle her to work and they did not have the finances to wait, nor were they aware that her tourist visa could be extended.

Held: Decision under review set aside

The Tribunal found Australian immigration visa applicant and her sponsor to be highly credible and compelling witnesses. The Tribunal was left in no doubt as to the genuineness of their relationship, rather, it found that the critical issue for its consideration related to the requirement that an interdependent relationship existed for 12 months prior to the date of application. The Tribunal noted the documentary evidence which demonstrated that Australian immigration visa applicant and sponsor combined their finances after Australian immigration visa applicant’s arrival in Australia in April 2008, which included joint bank account statements, as well as evidence that the sponsor nominated Australian immigration visa applicant as the beneficiary under her superannuation policy. The Tribunal also accepted that Australian immigration visa applicant and the sponsor began informally sharing their finances from approximately May 2007 onwards. The Tribunal found that Australian immigration visa applicant and sponsor began to co-habit immediately after Australian immigration visa applicant arrived in Australia and that they had co-habited since that time. The Tribunal accepted the chronology of the relationship given by Australian immigration visa applicant in her evidence, that from approximately 2004 onwards they began openly discussing their mutual feelings, with them resolving by May 2007 to begin a life together notwithstanding that they lived in separate countries. The Tribunal accepted that Australian immigration visa applicant would have wished to migrate to Australia immediately after completing her university degree in 2007, however she was precluded from doing so primarily for financial reasons. Therefore, the Tribunal found that Australian immigration visa applicant and sponsor were in an interdependency relationship from May 2007, which was more than 12 months prior to the date of application in July 2008. The Tribunal noted that this characterisation of their relationship was unusual in that they were living in separate countries, however, it found that the relationship should be viewed in its historical context which involved mutual expressions of feelings from 2004 onwards, and that when Australian immigration visa applicant’s previous relationship came to an end that things moved rapidly between Australian immigration visa applicant and sponsor. For these reasons the Tribunal found that Australian immigration visa applicant and sponsor were in an interdependent relationship within the meaning of r.1.09A(2) and that at the time of decision they continued to be in an interdependent relationship.

Australian Partner Visa - Permanent

0903593
5 August 2010, Melbourne
Mr B Hely, Member
PARTNER (MIGRANT) (CLASS BC) – SUBCLASS 100 – SPOUSE – CL.100.221 – DEATH OF SPONSOR – A delegate of the Minister refused to grant Australian immigration visa applicant a Subclass 100 visa on the basis that Australian immigration visa applicant’s sponsoring spouse had died in June 2008, which was prior to her entry into Australia as the holder of a Subclass 309 visa in July 2008. Australian immigration visa applicant claimed that she was a simple Chinese woman with one daughter (the secondary applicant) who had been studying in Australia to become a nurse for almost 6 years. Her daughter’s ambition was to work and marry an Australian man and raise her family in Australia. Australian immigration visa applicant claimed that when they received approval to come to Australia, she and her daughter went to Shanghai Immigration to pick up their visas. However, they encountered numerous delays and requests for more documents which required them to return to their home town, obtain the documents and return to Shanghai. This took 7 days while the documents and visas were processed. During this time, Australian immigration visa applicant became very anxious as her daughter needed to get home to Australia to return to University and her study commitments. Their visas were granted on 10 July 2008 and they departed China on 14 July 2008. Australian immigration visa applicant advised the Tribunal that since arriving in Australia, she had married and had a new sponsor. Australian immigration visa applicant and her daughter explained that they were anxious to remain together and it would cause them great hardship to be separated. Australian immigration visa applicant advised that she and her current husband had lodged a spouse visa application which was currently under review by the Department.

Following the Tribunal hearing, a statement was received from Australian immigration visa applicant’s husband stating that Australian immigration visa applicant had had a difficult life in China and that she is a decent, honest woman who had made many sacrifices for her daughter. He submitted that he and Australian immigration visa applicant were hopeful that the Tribunal would make a favourable decision on compassionate grounds.

Held: Decision under review affirmed.

The Tribunal explained at the hearing, that it was its understanding that Australian immigration visa applicant’s second marriage did not alter matters for the purposes of the application which was currently under review as the requirements relating to her relationship with her sponsor, related to her sponsor at the time of application. The Tribunal explained that a new spouse could not “stand in the shoes” of her previous sponsor who had now died. The Tribunal therefore found that Australian immigration visa applicant was unable to comply with the requirements of Subclause 100.221(2) or 100.221(2A) because her relationship with her sponsoring spouse was not continuing given that he was deceased. She was therefore unable to meet the requirements of r.1.15A(1A)(b)(ii) for a married relationship. The Tribunal also found that Australian immigration visa applicant was unable to comply with the requirements of Subclause 100.221(3) or 100.221(4) because she had not entered Australia as the holder of a Subclass 309 visa until after her sponsoring spouse had died. Therefore, Australian immigration visa applicant did not satisfy cl.100.221 of the Regulations for the grant of a Partner (Class BC) visa.

0904914
17 June 2010, Perth
Mr T Caravella, Member

PARTNER (MIGRANT) (CLASS BC) – SUBCLASS 100 – SPOUSE – CL.100.221(4) – GENUINE RELATIONSHIP – CHILD OF THE RELATIONSHIP – A delegate of the Minister refused to grant Australian immigration visa applicant a Spouse visa on the basis that a Departmental visit to Australian immigration visa applicant’s home had raised doubts regarding whether the parties shared a bedroom. At the Tribunal hearing, Australian immigration visa applicant claimed that his wife (the sponsor), had left him and she was living with her mother in a rented house. He claimed that this was because she needed a baby-sitter, and that he worked very long hours at her father’s farm which meant she was left alone with the children all day which she found boring. The visa applicant claimed that he married the sponsor in 2002 and they began trying to have a baby straight away. He said they were unhappy when they couldn’t have children and that this led to their separation in 2006. The couple began living together again in 2008 however, during their separation, the sponsor had lived with another man and she had two children to him. The visa applicant advised that he and the sponsor now had a daughter together, and that daughter’s surname was the same as the other two children’s as they wanted her to have the same surname as his wife’s other two children. The visa applicant claimed that his long working hours meant that he did not have a lot of time to spend with his wife. He advised the Tribunal that he would cut down his hours from that day on claiming that he could work fewer hours because the season had changed which would allow him to spend more time at home. Australian immigration visa applicant claimed that the parties live in the sponsor’s parent’s house and that they share a bedroom with their children. He claimed that at the time when Departmental officers visited their home he, his wife and the two children were all sleeping in the one bed. He claimed he used to leave his things in the spare room next door because he would come home late at night after work having used chemicals at the farm and he did not want to expose the children to them. This was why officers had believed that he and the sponsor didn’t share the bedroom. The visa applicant claimed that when Departmental officers visited, he had just finished work and he had not eaten and to make matters worse, there were very low prices for the vegetables they were growing at the time. When asked by the Tribunal to explain why he seemed to be able to recall the situation with prices of produce at that time of the visit by the Department but he could not recall the children’s names or dates of birth, the visa applicant repeated that it was late and he was tired at the time of the Department’s visit.

Held: Decision under review set aside.

The Tribunal found that the parties appeared to benefit financially from the pooling of the review applicant’s financial resources into the family farm as they were provided with accommodation and other household needs in the sponsor’s family home. The Tribunal did not regard the sponsor’s claim that she had been unhappy over the insufficiency of money as fatal to the visa application as such disputes over financial stringency were not uncommon between couples. Although the Tribunal found the financial aspects of the relationship appeared not to support a spousal relationship, it placed less weight on this aspect of the relationship recognising the cultural elements that may have been in operation in this case. The Tribunal considered the Department’s findings over whether the parties shared a bedroom and it considered it more likely than not that the visa applicant did occupy the other room however, the Tribunal found that this was not determinative of this review. The Tribunal was not convinced by the sponsor’s father’s evidence at the hearing that the relationship between the review applicant and the sponsor was a genuine spousal relationship and it concluded that, in all likelihood, he was influenced by the review applicant’s key role as a worker on his farm. The Tribunal therefore gave less weight to the sponsor’s father’s evidence. The Tribunal found that the parties failed to provide evidence to satisfy the Tribunal that they were in a committed relationship or that they drew a degree of companionship or emotional support that would be expected in a genuine spousal relationship. In this case, the Tribunal was not satisfied that the period of cohabitation was strong evidence of a genuine and continuing relationship. For these reasons, the Tribunal found that the review applicant and the sponsor did not have a genuine mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal characterised the nature of their relationship to be more akin to a labour arrangement between the visa applicant and the sponsor’s father. Therefore, the Tribunal was not satisfied that Australian immigration visa applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship was genuine and continuing. However, the Tribunal was satisfied that the visa applicant was the biological father of a child with the sponsor and that he had custody or joint custody, or access to, the child. Therefore, the Tribunal found that Australian immigration visa applicant satisfied cl.100.221(4)(c)(ii) which required that he continued to meet the spouse relationship requirement except that the relationship between Australian immigration visa applicant and the sponsoring partner had ceased, and Australian immigration visa applicant had custody or joint custody of, or access to at least 1 child. The Tribunal therefore found that Australian immigration visa applicant satisfied cl.100.221(4)(c)(ii) of the Regulations and the application for a Partner (Migrant) (Class BC) visa was remitted for reconsideration.

1001411
7 May 2010, Melbourne
Mr D Mitchell, Member

PARTNER (MIGRANT) (CLASS BC) – SUBCLASS 100 – SPOUSE – CL.100.221 – GENUINE AND CONTINUING RELATIONSHIP – DOMESTIC VIOLENCE – A delegate of the Minister refused to grant the visa applicant a spouse visa on the basis that Australian immigration visa applicant did not meet cl.100.221 because the delegate was not satisfied that the relationship between Australian immigration visa applicant and her sponsor was genuine and continuing. As a result of information received, Departmental officers had visited simultaneously the couple’s declared address and the home of relatives of Australian immigration visa applicant, and based on their observations, the delegate had concluded that Australian immigration visa applicant was not living with the sponsor. The Department subsequently received a letter from Australian immigration visa applicant’s migration agent stating that the marriage had recently broken down as a result of domestic violence committed by the sponsor against Australian immigration visa applicant, and advised that Australian immigration visa applicant was applying for permanent residence under the domestic violence provisions of the Act. The agent also provided the Department with a copy of a Complaint for an Intervention Order and a statutory declaration in which Australian immigration visa applicant claimed that she had suffered domestic violence committed by the sponsor since August 2006. On review, Australian immigration visa applicant’s migration agent provided the Tribunal with a police report in which a police officer stated that he had served the Complaint for an Intervention Order on, and executed the Complaint for an Intervention Order and Warrant against the sponsor, and that the sponsor had been bailed by police to appear at the Magistrates’ Court of Victoria.

Held: Decision under review set aside.

In reaching its decision the Tribunal did not consider a hearing to be necessary as it was able to find in favour of Australian immigration visa applicant on the basis of the material before it, including material relating to the grant of the Subclass 309 visa to Australian immigration visa applicant. Having had regard to all of the circumstances of the relationship, including the aspects set out in the definition of ‘spouse’ in r.1.15A(3), the Tribunal was satisfied that the parties were in a spousal relationship at some time prior to Australian immigration visa applicant seeking an intervention order against the sponsor. Having had regard to the ‘Police Report to Court on Status of Complaint and Warrant for an Intervention Order’, the Tribunal was satisfied that the sponsor was served with a copy of the Complaint for an Intervention Order and bailed to appear in Court. As the sponsor failed to appear and the Court granted Australian immigration visa applicant an Intervention Order against him, the Tribunal was also satisfied that a court order was made against the alleged perpetrator (the sponsor) for the protection of the alleged victim (Australian immigration visa applicant) from violence, after the sponsor had an opportunity to be heard by the Court in relation to the matter. The Tribunal found that under these circumstances, domestic violence was taken to have occurred under r.1.23(1)(d) of the Regulations. Accordingly, the Tribunal found that as the relationship between Australian immigration visa applicant and sponsor had ceased and Australian immigration visa applicant had suffered domestic violence as committed by the sponsor, Australian immigration visa applicant met the requirements of cl.100.221(4)(b) and (c) of the Regulations.

0901882
7 April 2010, Sydney
Ms M Ford, Member

PARTNER (MIGRANT) (CLASS BC) – SUBCLASS 100 – SPOUSE – CL.100.221(4) – DOMESTIC VIOLENCE – A delegate of the Minister refused Australian immigration visa applicant’s Subclass 100 visa application on the basis that there was insufficient evidence to demonstrate that Australian immigration visa applicant was the spouse of the sponsor. A letter was received by the Department from the sponsor advising that he had withdrawn his sponsorship, and a subsequent letter was received by the Tribunal from the review applicant’s representative advising that the sponsor had a mental illness; that he left home without telling anyone; and that the review applicant had been accepted by a women’s refuge. The submission included documents in support of the visa applicant’s marriage and outlined details of medication that had been prescribed to the sponsor; hospital discharge summaries; a series of statutory declarations related to domestic violence from the co-ordinator of a women’s refugee; a general practitioner; the visa applicant and the visa applicant’s daughters. The Tribunal also received a report from a psychotherapist related to the visa applicant’s experiences of domestic violence and four statutory declarations from acquaintances of the sponsor and the visa applicant in which they discussed their knowledge of the relationship and its deterioration due to domestic violence. The visa applicant claimed that shortly after her arrival in Australia the sponsor commenced demonstrated behaviours associated with a mental illness and that he would disappear for unexplained periods of time. Australian immigration visa applicant claimed that the sponsor forbade her to attend English classes or to go out on her own and he would follow her if her she did go out. She claimed that his behaviour became unpredictable and he would throw things at her and, whilst driving, he would try to push her out of the car. She stated that as time went on he became more violent and abusive and that her daughters became frightened, resulting in one of her daughters moving out to escape his behaviour. The visa applicant claimed that the relationship ended when Australian immigration visa applicant returned home to find the sponsor had changed the door lock and she was unable to enter her home, which led to the police being called and the visa applicant and her daughters being given accommodation at a women’s refuge.

Held: Decision under review set aside

The Tribunal was satisfied that the relationship between Australian immigration visa applicant and the sponsoring spouse had ceased, and that the only issue that arose was whether Australian immigration visa applicant had suffered domestic violence as committed by the sponsor. The Tribunal found that Australian immigration visa applicant had made a statutory declaration pursuant to r.1.25 alleging that she was the victim of relevant domestic violence, and that in support of Australian immigration visa applicant’s declaration two further declarations were provided. The Tribunal found that these statutory declarations complied with r.1.26(a)-(f) as they were made by competent persons, and that in each of their opinions, relevant domestic violence had been suffered by the visa applicant as committed by the sponsor. The Tribunal was satisfied that evidence had been presented that domestic violence had occurred, and considering all of the evidence before it, the Tribunal was satisfied that Australian immigration visa applicant had suffered relevant domestic violence committed by the sponsor. The Tribunal found that under r.1.23(1)(f) Australian immigration visa applicant was taken to have suffered domestic violence and the sponsor was taken to have committed domestic violence in relation to the visa applicant. Therefore, as the relationship between Australian immigration visa applicant and sponsor had ceased, and Australian immigration visa applicant had suffered domestic violence committed by the sponsor, the Tribunal found that Australian immigration visa applicant met the requirements of cl.100.221(4)(b) and (c). Accordingly, the decision under review was set aside.

Australian Prospective Spouse Visa

0808684
7 May 2010, Melbourne
Ms L Kirk, Senior Member

PROSPECTIVE MARRIAGE (TEMPORARY) (CLASS TO) – SUBCLASS 300 – CL.300.216 – CL.300.221 – GENUINE INTENTION TO LIVE TOGETHER AS SPOUSES – The delegate refused the application for a Subclass 300 visa on the basis that the visa applicant did not satisfy cl.300.216 and cl.300.221, because the delegate was not satisfied that the parties genuinely intended to live together as spouses. The review applicant claimed that he was introduced to the visa applicant by the visa applicant’s aunt, and that they began to communicate with each other by email and webcam. The review applicant claimed that he then went to Vietnam with his aunt and met the visa applicant, where they talked and went out together. The review applicant claimed that they kept in touch via webcam, and that about twelve months later he realised that their relationship was serious, and he subsequently proposed marriage to her when he was in Vietnam on a second visit which lasted for five weeks. He claimed that they held an engagement party on his third visit a few months later which was attended by his two step-brothers, his grandparents and an uncle, as well as many members of the visa applicant’s family. The review applicant claimed that when he returned to Australia he continued to stay in contact with the visa applicant by phone, email and letter, and that they were unable to see each other for more than twelve months at this point due to school and work commitments, as well as the fact that they were waiting for a visa for the visa applicant. He claimed that he then travelled to Vietnam for two months for work, but the did not see much of the visa applicant as he was based in Ho Chi Minh City, and the visa applicant’s father would not allow her to come and stay with him as he was very strict. He claimed that he sent her about $200-$300 every two or three months through his grandmother via his aunt. The visa applicant gave evidence to the Tribunal in relation to the chronology of how they met and how their relationship developed, and a Statutory Declaration was received confirming that the review applicant’s aunt was involved in transferring funds to the visa applicant on behalf of her nephew.

Held: Decision under review set aside.

The Tribunal found that both the review applicant and the visa applicant were able to provide a generally consistent explanation of their future intentions as to financial, living and personal lives which, in the Tribunal’s assessment, was consistent with a genuine commitment to live together as spouses in what they anticipated to be a long term relationship. The Tribunal noted that whilst the parties lived in different countries which made it difficult for them to effectively pool or combine their finances, the review applicant had provided financial assistance over the past year to the visa applicant to assist her with her everyday expenses. The Tribunal accepted that the parties had maintained regular and frequent contact with each other by internet and phone communication, as evidenced by phone bills showing phone calls and the print out of emails between them, and that they presented together socially as a couple as supported by photographic evidence showing them together in Vietnam and in other social activities. The Tribunal found that the attendance of relatives of both the review applicant and the visa applicant at their engagement party was consistent with the assertion that other people recognised and accepted the existence of a relationship between them. The Tribunal accepted that the review applicant had travelled to Vietnam to visit the visa applicant on several occasions, and also noted various Statutory Declarations from friends and family which went to the genuineness of the relationship, which had now endured for almost four years. Having considered the evidence, the Tribunal found on balance that, at the time of application, the parties had a genuine intention to live together as spouses and that they continued to hold this intention. Therefore, Australian immigration visa applicant met the requirements for the grant of a Prospective Marriage visa.

0806415
26 February 2010, Sydney
Ms L Nicholls, Member

PROSPECTIVE MARRIAGE (TEMPORARY) (CLASS TO) – SUBCLASS 300 – CL.300.216 – GENUINE INTENTION TO LIVE TOGETHER AS SPOUSES – A delegate of the Minister refused the visa application on the basis that the visa applicant did not satisfy cl.300.216 of the Regulations. The delegate was not satisfied that the parties had a genuine intention to live together as spouses. At a hearing before the Tribunal Australian immigration visa applicants gave evidence and described the development of their relationship. The review applicant explained that he met the visa applicant in August 2004 when he accidentally bumped into her and knocked her bag out of her hands. He said that he then picked up her bag and started talking to her which led to him asking her out to dinner. At that time she was 57 years of age and although he was over 80, he told her he was 67 because he did not want her to think he was too old. The parties claimed that they went out to dinner two weeks later and continued going out together for six to eight months. The visa applicant gave evidence that they decided to get married in November 2004 but waited, as the review applicant wanted to arrange a house suitable for a married couple. In 2005, however, the visa applicant was found to be working illegally and was detained. The review applicant claimed that he tried to obtain the visa applicant’s release from detention but was unable to do so. He told the Tribunal that he visited her in detention every day for 41 days and that he had been prepared to provide a bond for security. He claimed that after she returned to Thailand in 2005 they kept in daily contact by telephone and also by mail. Australian immigration visa applicants provided statements detailing the history of their relationship, telephone records and other documents in support of the application.

Held: Decision under review set aside.

The Tribunal found the review applicant articulate and considered that he gave detailed and frank evidence at hearing. The Tribunal also found that the visa applicant’s evidence was generally consistent. The Tribunal found that the review applicant demonstrated a strong commitment to the visa applicant and that the couple provided each other with emotional support and comfort. The Tribunal accepted that the parties went out to dinner together in Australia and that the review applicant had visited the visa applicant every day whilst she was in detention. It also accepted that the parties had spoken on the telephone every day for the last four and a half years and the Tribunal found that this showed considerable commitment to the relationship. The Tribunal noted that they are familiar with each other’s personal circumstances and appeared to have a deep affection for each other. It also noted that whilst the circumstances could have raised suspicions about the parties’ genuine intention to marry, Australian immigration visa applicants demonstrated a very realistic and sensible appreciation of the nature of their relationship and an awareness of the respective benefits of the relationship. The Tribunal found that the review applicant sought companionship and care; the visa applicant sought affection and a home in Australia, and that both were prepared to provide each other with that mutual support. Accordingly, the Tribunal found that, at the time of application, the parties did have a genuine intention to live together as spouses, and therefore met cl.300.216 of the Regulations.

0803078
12 January 2010, Melbourne
Ms L Kirk, Senior Member

PROSPECTIVE MARRIAGE (TEMPORARY) (CLASS TO) – SUBCLASS 300 (PROSPECTIVE MARRIAGE) – R.1.15A – GENUINE AND CONTINUING RELATIONSHIP – A delegate of the Minister refused Australian immigration visa applicant’s Subclass 300 visa on the basis that the visa applicant did not satisfy cl.300.216 and cl.300.221 of the Regulations, as the delegate was not satisfied that the visa applicant and the review applicant genuinely intended to live together as spouses. The visa applicant was a 38 year old male Moroccan national who was sponsored by the review applicant, a 62 year old female Australian citizen. The review applicant claimed she met the visa applicant in 2005 in an international chat room. They became engaged and Australian immigration visa applicant sent her a pair of traditional Moroccan shoes to mark their engagement. After chatting on the internet for six months, the review applicant travelled to Morocco where they spent five weeks travelling around whilst also staying with the visa applicant’s family for two weeks. The review applicant claimed that the visa applicant’s English was good enough for him to translate for his family. She also claimed they did not have a formal engagement ceremony in Morocco but that she met all of his family and they gave her many gifts and welcomed her. The review applicant claimed that the visa applicant had to leave his job in order to travel with her, and she paid for everything because the visa applicant had very little money. At the hearing, the visa applicant claimed that he used to be a plumber and that he now works at a market stall selling clothes. The review applicant claimed she is taking courses in Islam and she is in the process of converting. They agreed that they would have to live in Australia because of the review applicant’s children and that she would support the visa applicant to become a plumber in Australia. She said that if the visa applicant was not able to come to Australia she would go to Morocco to marry him and that the connection between them was very strong. Several Statutory Declarations were provided as evidence in support of the application.

Held: Decision under review set aside.

The Tribunal considered the material provided, including numerous documents which were not before the delegate, and also the oral evidence of both parties at the hearing which the Tribunal found to be persuasive. In reaching its conclusion, the Tribunal accepted the evidence that each party was able to provide a generally consistent explanation of their future intentions as to financial, living and personal lives which, in the Tribunal’s assessment, would be consistent with a genuine commitment to live together as spouses in what they anticipated to be a long term relationship. The Tribunal found that the parties provided evidence that they presented together socially as a couple. This was supported by photographic evidence showing them together in Morocco and in other social activities. The Tribunal found that the attendance of the visa applicant’s relatives at the henna party to mark the couples’ engagement was consistent with the assertion that other people recognised and accepted the existence of a relationship between them. The Tribunal also found that the parties provided consistent explanations as to how they believed their household would operate, and the Tribunal had no reason to doubt that explanation. Based on the oral and written evidence, the Tribunal was satisfied the parties have a genuine intention to marry and that the marriage was intended to take place within the visa period. Accordingly, the Tribunal found that the requirements of cl.300.215 of the Regulations were satisfied at the time of the application and continued to be satisfied at the time of decision.

Migration Review Tribunal Decision Summaries

Australian Immigration - Partner Visas

Australian Partner Visa - Temporary

Australian Partner Visa - Permanent

Australian Prospective Spouse Visa

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