Australian Immigration Appeals: Partner Visas 2009

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
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Partner Visas - Temporary

0801978
Partner Visa – Temporary
071961266
15 January 2009, Melbourne
Mr P Fisher, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – CL.309.211 – R.1.15A – SPOUSE RELATIONSHIP – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa on the basis she did not satisfy cl.309.211 or cl.309.221 of Schedule 2 the Migration Regulations 1994 (the Regulations) because was not in a ‘spouse’ relationship in accordance with r.1.15A. The Australian immigration visa applicant had been refused a Partner visa with her sponsor on two previous occasions because of concerns about the bona fides of their relationship. The sponsor claimed before the Tribunal that he had no material contact with his ex-wife after their separation and that he and the Australian immigration visa applicant had presented fraudulent witness statements in past applications out of a mistaken belief that the visa would be refused without them.

Held: Decision under review set aside.

The Tribunal accepted that genuine applicants for a Partner visa sometimes submitted false evidence in the mistaken belief they would be refused visas without it and found that the applicants fell into this category. The Tribunal further accepted that the sponsor’s first marriage was severed both legally and financially, as evidenced by the grant of divorce. The Tribunal noted the applicants’ three attempts at obtaining a Partner visa demonstrated their persistence and, on the evidence before it, including financial transfers, written statements of support and numerous records of communication, was satisfied that they met the requirements in r.1.15A for a spouse relationship. Accordingly, the Tribunal was satisfied that the Australian immigration visa applicant met the criteria in cl.309.211, 309.221 and 309.223 of the Regulations for the grant of a Subclass309 visa.

071844431
26 February 2009, Sydney
Ms P McIntosh, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – CL.309.211 – CL.309.221 – R.1.15A – SPOUSE – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant a Partner (Provisional) (Class UF) visa on the basis that she did not satisfy cl.309.211 and cl.309.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the Australian immigration visa applicant and the review applicant were in a genuine ‘spouse’ relationship as defined in r.1.15A. The delegate drew an adverse inference from information indicating that the review applicant had travelled on the same flight as his ex-wife shortly before his marriage to the Australian immigration visa applicant. The review applicant claimed that the relationship with his first wife had ceased years earlier and he had not travelled on the same flight with his ex-wife as stated in the delegate’s decision. The applicants provided numerous photographs and other documents, including money transfer records, telephone records, air tickets, registration of stay cards and various invoices and receipts.

Held: Decision under review set aside.

The Tribunal found that the review applicant’s commitment to the relationship led him to provide considerable financial support to the Australian immigration visa applicant over a number of years. It also accepted that the couple lived together for a period totalling over 12 months. The Tribunal was satisfied that family and friends regarded them as being in a genuine married relationship. It was satisfied that they could verbally communicate in a manner consistent with a high level of commitment. On the basis of their compelling oral evidence it was satisfied they had drawn companionship and emotional support from each other and saw the relationship as long-term. The Tribunal was satisfied that the review applicant’s relationship with his first wife had irrevocably broken down before he met the Australian immigration visa applicant and that the review applicant did not travel with his ex-wife. The Tribunal drew no adverse inference from the fact that he was previously married to another woman. The Tribunal was satisfied that the applicants 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. As such, it was satisfied they met the requirements in r.1.15A for a married ‘spouse’ relationship. Accordingly, the Tribunal was satisfied that the Australian immigration visa applicant met cl.309.211 and cl.309.221 of the Regulations.

0806774
4 March 2009, Sydney
Ms G Cullen, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 (SPOUSE (PROVISIONAL)) – CL.309.211 – R.1.15A(1A)(b) – GENUINE SPOUSE – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 309 visa on the basis that he did not meet cl.309.211 of the Regulations because the applicants did not have a mutual commitment as a shared life as husband and wife to the exclusion of others. The applicants claimed they cohabited as husband and wife in Cambodia before their marriage when the review applicant became pregnant. They provided ultrasound and DNA reports, a birth registration statement and other evidence in support of their application.

Held: Decision under review set aside

In considering the elements in r.1.15A(3), the Tribunal placed little weight on the absence of evidence of a financial relationship as the applicants had not had an opportunity to build a permanent life together. It considered that the Australian immigration visa applicant was a student and the review applicant only twenty and did not expect them to have significant assets to share. Despite the delegate’s views that they would not cohabit immediately upon the review applicant’s arrival given the traditional nature of Cambodian society and the date of the child’s conception was while they were in different countries, the Tribunal was satisfied the applicants cohabited for 13 weeks. The Tribunal did not accept the delegate’s concerns that the Australian immigration visa applicant fabricated answers to give the perception that he fathered the child, the review applicant had limited knowledge of his character and personal circumstances, or that there was no evidence of communication between them. Rather, it accepted the DNA evidence confirming the Australian immigration visa applicant was the father and the date of conception apparent from the ultrasound, taking into account that the report’s due date was calculated from the first day of the last menstrual period rather than the actual date of conception. It viewed this as strong evidence supporting cohabitation which it found went to the nature of their household and commitment to each other. The Tribunal found that the parties had socialised together and represented themselves to other people as being in a marital relationship despite the delegate’s concern that the review applicant’s family had not attended the wedding. It accepted that her mother was ill, her father dead, and her aunt had attended. It also accepted her mother met the Australian immigration visa applicant’s parents to discuss the marriage. The Tribunal was satisfied the applicants had a mutual commitment to a shared life as husband and wife, to the exclusion of all others, and the relationship was genuine and continuing. Accordingly, the Australian immigration visa applicant was the spouse of the review applicant and they met the requirements of cl.309.211 and cl.390.221 of the Regulations for the grant of the visa.

071965892
24 April 2009, Sydney
Ms D Barneston, Member

PARTNER (TEMPORARY) (CLASS UK) – SUBCLASS 826 (INTERDEPENDENCY) – CL.826.212 – R.109A(2)(c) – COMMITMENT TO A SHARED LIFE – GENUINE AND CONTINUING – A delegate of the Minister refused to grant the applicant a Subclass 826 visa on the basis that the applicant and her sponsor did not satisfy the requirements of r.1.09A(2)(c) of the Regulations. The delegate was not satisfied that the applicant and her sponsor were in an interdependent relationship within the meaning of r.1.09A of the Regulations. The applicant and her sponsor (her aunt) began their relationship when the applicant arrived in Australia to care for the sponsor after a knee operation. The applicant claimed that the sponsor’s recovery took longer than anticipated, and the applicant extended her visitor visa to continue caring for the sponsor. At the end of the extension, the pair discussed the applicant staying and living together and decided to try as they had been living together for 6 months by then. In a written statement, the applicant claimed that she wished to be with her sponsor to support her physically and mentally in a more permanent way as she had come to care deeply about her and loved her very much. The sponsor claimed to have come to love the applicant and depend heavily on her help, and described their relationship as one which she imagined a mother and daughter who lived together would share. A number of statements from third parties regarding the relationship between the applicant and the sponsor were submitted in support of the application, along with financial records, postcards to show that people see them as living together and photos showing the pair undertaking social activities together.

Held: Decision under review affirmed

The Tribunal was not satisfied on the basis of the material before it that the applicant was, at the time of application and decision, in an interdependent relationship with her sponsor. The Tribunal acknowledged the statements submitted from a number of witnesses concerning the relationship between the parties, but noted that these statements indicated that the witnesses characterised the parties’ relationship as that of a carer and caree, albeit a loving one. The emphasis was on the sponsor’s dependence on the applicant for physical and household assistance. The Tribunal noted that the parties had lived together for over six months at the time of application, and that there was a statutory presumption that where this was the case, the fact was taken as strong evidence that the relationship was genuine and continuing. However, the Tribunal was not satisfied that this presumption outweighed the actual evidence before it as to the nature of the parties’ relationship. The Tribunal noted that the definition of ‘interdependent relationship’ contemplates a range of relationships beyond same sex relationships, so long as the parties can establish the requirements of exclusive mutual commitment to a shared life, a genuine and continuing relationship and are not living separately and apart on a permanent basis. The Tribunal found that while the parties cared deeply for each other, and the applicant provided care for the sponsor, there was little evidence that they were accepted socially as a couple or presented themselves as such; indeed, the parties described themselves as being like a mother and a daughter. Consequently, the Tribunal was not satisfied that, at the time of application and decision, the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others, or that the relationship was genuine and continuing. The Tribunal, therefore, found that they did not satisfy the requirements of r.1.09A(2)(c) and was not satisfied that the applicant and sponsor were in an interdependent relationship within the meaning of r.1.09A. Accordingly, the applicant did not satisfy cl.826.212 of the Regulations.

071690114
28 April 2009, Melbourne
Ms Kay Kirmos, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 (SPOUSE (PROVISIONAL)) – R.1.15A(2)(b) – AGE AT TIME OF MARRIAGE– A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 309 visa on the basis that she was under 18 years of age at the time of the wedding and lodgement of the application. The review applicant claimed that they had met through their families, who had been friends for a long time and that their relationship commenced over the telephone. The review applicant claimed that they met when he visited Dubai and with the support of their families they decided to marry. They both travelled to Somalia with their families where a wedding took place in a hotel over five days before 100 guests. The applicants remained in Somalia for 20 days and then returned to Dubai, where they honeymooned. The review applicant claimed he subsequently returned to visit the Australian immigration visa applicant in Dubai on three occasions, and they now have a baby daughter together.

Held: Decision under review set aside

The Tribunal indicated that it regarded the review applicant to have been domiciled in Australia, which meant that both parties were required to be at least 18 years of age for a valid marriage or a de facto relationship to have existed at the time of application. As the Australian immigration visa applicant was 17 years old at the time of the marriage and application, the Tribunal found that she did not meet the definition of spouse and that the marriage could not be recognised in Australia as a valid marriage. The Tribunal then considered whether the Australian immigration visa applicant intended to marry an Australian citizen at the time of application. The Tribunal found that it was clear from the Australian immigration visa applicant’s statement that they had agreed to marry when they went through a ceremony in front of family and friends. Although that marriage was not valid under Australian law, the Tribunal accepted that the Australian immigration visa applicant did not intentionally enter into an invalid marriage with the review applicant and that they had wrongly believed that their marriage in 2007 would be valid. The Tribunal found that the applicants had provided evidence that they had, more recently, undergone a valid marriage. The Tribunal found that the relationship was genuine, particularly having regard to the birth of their child. The Tribunal was satisfied that the Australian immigration visa applicant had intended to marry at the time of application, that the marriage had taken place and that the applicant continued to meet the definition of spouse at the time of decision. Therefore, the Australian immigration visa applicant met cl.309.221 and cl.309.224 of the Regulations for the grant of the visa.

0804599
3 June 2009, Sydney
Ms M Foster, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 (SPOUSE (PROVISIONAL)) – CL. 309.311 – MEMBER OF THE FAMILY UNIT – A delegate of the Minister refused to grant the applicants Subclass 309 visas because they did not satisfy cl.309.311 of the Regulations as they were not found to be dependents of the primary Australian immigration visa applicant and the review applicant. The delegate believed that the Australian immigration visa applicants had provided false and misleading evidence to the Department that their parents were deceased. The primary Australian immigration visa applicant claimed that she, her son and the 3 secondary Australian immigration visa applicants were born in Afghanistan but were residing in Pakistan. The primary Australian immigration visa applicant claimed that she and the review applicant are cousins and that they married when the primary Australian immigration visa applicant was about 16 years old in 1997. They lived together in the review applicant’s family home and had a son in 2000. The review applicant fled Afghanistan in 2001 for his safety due to the Taliban and other political parties making their local area unsafe. He left without the primary Australian immigration visa applicant and their son as he did not have enough money to bring them with him. They subsequently lost contact. They claimed that the review applicant’s parents, 2 sisters and a brother were killed after the review applicant left Afghanistan. The primary Australian immigration visa applicant claimed that she took over responsibility and care of the review applicant’s 3 surviving brothers, the Australian immigration visa applicants. The review applicant claimed that he located and re-established contact with his wife, son and brothers after being held in immigration detention for 3 years and that the primary Australian immigration visa applicant informed him of the deaths of his parents and siblings. He claimed that he then commenced sending money to them to meet their basic needs and that he told the primary Australian immigration visa applicant to stop working and ensured that the Australian immigration visa applicants attended school. The applicants submitted Afghan documentation confirming the death of the Australian immigration visa applicants’ parents.

Held: Decision under review set aside

The Tribunal found that the review applicant and primary Australian immigration visa applicant met the requirements of r.1.15A for a de facto relationship and that the primary Australian immigration visa applicant was the review applicant’s spouse at the time of decision. The Tribunal was unable to obtain information about the procedures by which Afghan documents were authenticated in Pakistan and information before it indicated that assessments made by Afghan embassy and consulate officials in Pakistan as to the authenticity of Afghan documents were not reliable. In light of this, the Tribunal concluded that the statements attesting that the Australian immigration visa applicants’ parents had been killed were genuine and that they had died as claimed. It also found that the primary Australian immigration visa applicant and the review applicant were credible witnesses. The Tribunal accepted that when the review applicant re-established contact with his family, he viewed himself as having ultimate responsibility for the Australian immigration visa applicants in place of their deceased parents. The Tribunal found that he supported them financially, spoke to them every week and ensured they attended school. The Tribunal found, on the basis of independent advice, the review applicant assumed a parental role in relation to each of the Australian immigration visa applicants under arrangements made in accordance with recognised customs in the Afghan Hazara culture. The Tribunal found that each Australian immigration visa applicant was the dependent child of the review applicant at the time of application and that, as the dependent child of the review applicant, each Australian immigration visa applicant was the dependent child of the spouse of the family head (the primary Australian immigration visa applicant) and thus, that each was a member of the primary Australian immigration visa applicant’s family unit at the time of application. The Tribunal found that each of the Australian immigration visa applicants was a member of the family unit of, and made a combined application with, a person who satisfied the primary criteria in subdivision 309.21 and that they therefore met the criteria in cl.309.311 of the Regulations.

0801934
9 June 2009, Melbourne
Mr P Murphy, Senior Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 (SPOUSE (PROVISIONAL)) VISA – CL.309.211 – CL.309.221 – A delegate of the Minister refused to grant a Subclass 309 visa on the basis that the Australian immigration visa applicant did not satisfy cl.309.211 and cl.309.221 of the Regulations. The delegate was not satisfied the Australian immigration visa applicant and his sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship between them was genuine and continuing. The review applicant claimed she attended a family funeral in Vietnam, met the Australian immigration visa applicant in a restaurant and when she returned to Australia she and the Australian immigration visa applicant kept in contact. She claimed that she returned to Vietnam, the Australian immigration visa applicant proposed to her and they married two months later, but there was no honeymoon as the review applicant was pregnant and unwell. The delegate was concerned that ultra sound records indicated the possibility that the review applicant had conceived whilst still in Australia, rather than after her return from Vietnam, which suggested a relationship with her former partner, the father of her older child. Departmental movement records indicated that on a previous trip to Vietnam, the review applicant travelled with her mother, son, and former partner on the same flight. She claimed this was because her mother had attempted to reconcile the review applicant with her former partner. However, she denied any relationship with him and, once in Vietnam, they went their own ways. The review applicant claimed she received financial support from her ex-partner for their son and a Child Support Agency assessment confirmed the father’s financial obligations. She was adamant her son was the Australian immigration visa applicant’s child and both applicants were prepared to have DNA testing to establish this.

Held: Decision under review set aside

The Tribunal applied caution against strict reliance on data about the stages of pregnancy, since such data was not mathematically precise and individual factors created variations. Accordingly, the Tribunal was satisfied that the Australian immigration visa applicant was the father of the review applicant’s child. The Tribunal found that the date of birth of the review applicant’s child suggested conception could have occurred before she left Australia, but it could also have occurred equally soon after her return to Vietnam as the pregnancy was within the variable range. This was consistent with the review applicant’s evidence and there was nothing which could safely refute that. The Tribunal found the birth certificate added some weight since it identified the Australian immigration visa applicant as the father and the child was a child of the marriage. Despite the delegate’s concerns that the review applicant might be in another relationship in Australia, there was no objective evidence which satisfied the Tribunal this was the case. The Tribunal found that the previous relationship ended some years ago and there was nothing more recent to conclude that the review applicant was still in a relationship with her first child’s father nor anyone else. It found the Child Support Assessment was consistent with the review applicant’s evidence she was not in an ongoing relationship with her ex-partner and that it ended prior to her relationship with the Australian immigration visa applicant. The Tribunal found that the evidence that the applicants held themselves out as a married couple was reinforced by the review applicant’s visits to Vietnam since their marriage and that there was a child of the marriage. The applicants expressed the intention that their relationship will be a long term exclusive one, included their mutual intent to raise their current child and this was an indicator of a spousal relationship. Despite the review applicant travelling to Vietnam with her ex-partner, the Tribunal was satisfied the existence of a spousal relationship between the parties outweighed the factors that suggested the absence of a relationship. The Tribunal was satisfied the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others. Accordingly, the Tribunal found the Australian immigration visa applicant satisfied the requirements of cl.309.211 and cl.309.221 of the Regulations.

0801381
14 August 2009, Sydney
Ms J Ciantar, Member

PARTNER (TEMPORARY) (CLASS UK) – SUBCLASS 820 – VISA REFUSAL – CL.820.211 – CL.820.221(1) – R.1.15A – GENUINE AND CONTINUING RELATIONSHIP – A delegate of the Minister refused to grant the applicant a Subclass 820 visa on the basis that he did not satisfy r.1.15A(1A)(b) and 1.15A(2)(c), requiring that the applicant and sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together, or do not live separately and apart on a permanent basis. The applicant entered Australia as the holder of a Subclass 300 (Prospective Spouse) visa for which he had a different sponsor to his current spouse. About two and a half months after arriving in Australia, the applicant married his current sponsor. He claimed that his original sponsor had ended their relationship shortly after he arrived in Australia. The applicant claimed that he met the sponsor at a nightclub and they started going out the next day. He claimed that he was honest with her and told her how he had arrived in Australia and the circumstances regarding his visa. He told the Tribunal that after they were married he moved in with his current sponsor. The applicant claimed that he paid an equal share of the rent and utilities, and he provided to the Tribunal statutory declarations from friends, receipts for furniture, a copy of his licence giving his address, bank statements and telephone accounts in joint names, copies of photographs, and various other documents. The applicant claimed that the sponsor’s family live in Melbourne and they did not come to the wedding, nor has he met them, although he claimed the sponsor has a good relationship with them.

Held: Decision under review affirmed.

The Tribunal was not satisfied on the basis of the material before it that the applicant was the spouse of the sponsor within the meaning of r.1.15A of the Regulations. The Tribunal found that the applicant and the sponsor were not witnesses of credit. Despite holding a joint bank account at the time of application, the sponsor’s wages were now paid into an account in her name only. The applicant claimed that this money was being saved in order to purchase a house, whilst the sponsor claimed that it was for her personal use. The Tribunal found that conflicting evidence had also been provided in relation to how they had sourced the rental property where they claimed to live. The applicant claimed that it was a granny flat at the back of a house, whilst the sponsor claimed that it was a two bedroom unit. The Tribunal noted that mail sent to the sponsor had been posted care of a separate address. Further, the applicant claimed that a proposed holiday to Queensland was postponed due to work commitments, whilst the sponsor claimed that it was due to social engagements. Documents provided to the Tribunal indicated that the applicant had travelled to Queensland on two separate occasions, both times with people other than the sponsor. Financial records indicated that the applicant had also visited Victoria. He told the Tribunal that this had been for work and that he had not had time to visit the sponsor’s family. The Tribunal found that if the marriage was indeed genuine, the sponsor would have introduced the applicant to her family given that they were married for more than three and a half years. The Tribunal was not satisfied that, at the time of application and time of decision, the applicants 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. The Tribunal also found that the applicants were not living together at the time of the visa application and were not living together at the time of decision. Accordingly, it held that the applicants were not in a spousal relationship within the meaning of r.1.15A of the Regulations and, as such, the Australian immigration visa applicant did not meet cl.820.211 and 820.221(1) of the Regulations for the grant of the visa.

0903203
14 September 2009, Sydney
Ms S Leal, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – (SPOUSE (PROVISIONAL)) VISA – CL.309.211 – CL.309.221(1) – R.1.15A – GENUINE AND CONTINUING RELATIONSHIP – A delegate of the Minister refused to grant the Australian immigration visa applicant and his two children Subclass 309 visas on the basis that the Australian immigration visa applicant did not satisfy cl.309.211 and cl.309.221 of Schedule 2 as the delegate was not satisfied that the couple had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that the relationship between them was genuine and continuing. The Australian immigration visa applicant and his two children are currently living in Ghana and the review applicant is an Australian citizen who migrated in her teens. The applicants claimed that they met in Ghana in 2004 and were married in Ghana in June 2008. The review applicant provided a marriage certificate to this effect. She also provided documentation stating that she had given birth to the Australian immigration visa applicant’s child in 2009. The review applicant claimed that she was suffering from an ongoing medical condition which made caring for her child without the Australian immigration visa applicant’s assistance difficult, and she provided supporting medical documentation to verify her claims. She claimed she had spoken with her husband about having the children migrate to Australia with him so that they could help her with the baby. The review applicant provided further documentation to the Tribunal, including various birth certificates, telephone statements, statutory declarations, funds transfers and emails, in support of the application.

Held: Decision under review set aside.

The Tribunal was satisfied that the applicants were in a marriage that was recognised as valid for the purposes of the Act. The Tribunal accepted that the applicants met in Accra in 2004 and the review applicant made two subsequent trips to Ghana, and that they married on the most recent trip in 2008. The Tribunal accepted that during this trip the review applicant fell pregnant and that, although the pregnancy was unexpected, it was welcomed by the couple. Despite the concerns of the delegate, the Tribunal was not satisfied that a DNA test was required. The Tribunal accepted the oral and written evidence of the applicants that they remained in a genuine and committed relationship, were in daily telephone contact, and were anxious to be reunited in order to live as a family. The Tribunal therefore found that at the time of the visa application, the Australian immigration visa applicant was the spouse of the review applicant within the meaning of r.1.15A, who is an Australian citizen and therefore met the requirements of cl.309.211(2) of the Regulations. Further, the Tribunal found that, at the time of the Tribunal’s decision, the Australian immigration visa applicant continued to be the review applicant’s spouse, and satisfied cl.309.221 of the Regulations.

0802361
1 October 2009, Sydney
Ms R Mathlin, Member

PARTNER (TEMPORARY) – (CLASS UK) – SUBCLASS 820 (SPOUSE) – CL.820.211 – CL.820.221(1) – DE FACTO RELATIONSHIP – A delegate of the Minister refused to grant a Subclass 820 (Spouse) visa because she was not satisfied the parties were in a genuine and continuing spouse relationship. The delegate noted that the sponsor was still married to his first wife at the time of his marriage to the applicant and therefore, the applicants were assessed as being in a de facto relationship. The applicant claimed she came to Australia in 2002 to visit her daughter but on her arrival she learned her daughter had died so she remained in Australia to care for her daughter’s three children. The Australian immigration visa applicant married her sponsor in 2003. Based on a site visit report, the delegate was not satisfied that the parties shared a household. The delegate found that there was an apparent lack of knowledge by the applicant of the sponsor’s daily circumstances, they did not share a common language and inconsistent accounts were provided by both parties of how they met. The applicant claimed the sponsor helps her with cooking, washing and light housework. She claimed he receives a pension, and that they only go out to do shopping or to the temple and he pays for everything. She claimed he gives her weekly pocket money, they look after each other and he comforts her greatly since she lost her daughter. He told her that if she cared for him, he would take care of her. Evidence provided by the sponsor’s carer indicated that he visits weekly to take the sponsor shopping or to the doctors and that the Australian immigration visa applicant always accompanies them. He claimed the applicant spends a lot of time caring for the sponsor, who has serious health problems. He claimed that they can communicate with each other and that he had observed them communicating frequently. He stated that the sponsor knows a bit of Khmer and he has observed the sponsor asking questions and the applicant replying. Also, he claimed that they have friends who speak both languages who assist them to communicate. The carer claimed the relationship appeared like a “normal” marriage with mutual affection.

Held: Decision under review set aside.

The Tribunal found there was no valid marriage and the application was considered under r.1.15A(1A)(b) as a de facto relationship. The Tribunal found the sponsor was in very poor health and it was extremely difficult to obtain information from him. However, the Tribunal found that the applicant was a frank and truthful witness. Based on the evidence provided, the Tribunal was satisfied the couple’s financial arrangements were consistent with a husband and wife and that the applicant had lived with the sponsor at their current address for the past two years. The Tribunal accepted that the applicant does most of the housework due to the sponsor’s ill health, and that they always shop together. The Tribunal accepted they are recognised as a married couple and that the applicant cares for the sponsor while he provides support and companionship to her. The Tribunal gave weight to the sponsor’s carer’s evidence and found that, in the Tribunal’s view, the benefits obtained by each of the parties, and their reasons for entering into and committing to the relationship, are compatible with those that exist in a genuine married relationship, and where the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal was satisfied there were compelling and compassionate circumstances and accepted that, because of the sponsor’s extremely poor health and if not for the applicant’s care, the sponsor would not be able to live independently. The Tribunal considered that the potential adverse consequences to the sponsor’s health if the applicant left Australia and the implications to his health if his care were taken over by the public health system were compelling reasons for the visa to be granted. The Tribunal was of the view that, although the sponsor and the applicant entered into a bigamous marriage in unclear circumstances, this was most likely an innocent mistake made by the sponsor and not the applicant. The Tribunal considered it was likely the sponsor thought he was divorced from his first wife when he first sought divorce proceedings. The Tribunal accepted the relationship between the applicant and sponsor had been in existence for six years at the time of its decision and found that the longstanding nature of the relationship was also a compelling and compassionate reason for granting the visa. Accordingly, the Tribunal found the applicant satisfied the requirements of cl.820.211(2)(a) and (c) of the Regulations.

0804034
12 October 2009, Sydney
Ms M Moustafine, Member

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – VISA REFUSAL – CL.309.211 – CL.309.221(1) – R.1.15A – GENUINE AND CONTINUING RELATIONSHIP – A delegate refused to grant the applicant a Subclass 309 visa on the basis that the Australian immigration visa applicant did not satisfy cl.309.211 and cl.309.221 of the Regulations. The delegate had concerns about the brief time the couple had spent together in person before deciding to marry. There were also inconsistencies between the parties’ accounts of claimed shared experiences during the review applicant’s visits to China and minimal evidence was provided showing that the parties represented themselves as being in a committed spousal relationship outside a very limited circle of people. The delegate also noted the absence of statements of support from direct family members. It was claimed that the visa and review applicant met at a party organised by a mutual friend in Fujian in 2006 while the review applicant was visiting on holidays. The applicant claimed that in the following three weeks, the relationship developed as the parties travelled together to various tourist attractions in Fujian. Following the review applicant’s returned to Australia, the parties continued to communicate regularly chatting online and through web cam. The review applicant claimed that he then proposed and the Australian immigration visa applicant accepted. The review applicant returned to China and took the Australian immigration visa applicant to meet his family and register their marriage. The review applicant returned to Australia three days later. He subsequently travelled to China on two occasions for a combined period of 18 months until May 2009. The parties submitted to the Tribunal copies of passports, birth certificates, marriage certificates, divorce certificates, income tax statements and payslips. Also included were statements from the applicants and their friends attesting to the genuine nature of the spousal relationship. The Tribunal was advised of the birth of the parties’ son in May 2009 and a copy of the child’s birth certificate and photos of the couple with their son were provided.

Held: Decision under review set aside.

The Tribunal noted that it had more evidence before it than had been available to the delegate and that two statements of support for the marriage from friends had been provided with a large number of photographs showing the couple together in China and with both their families and friends in social situations. The Tribunal placed less weight on the financial aspects of the relationship as the visa and review applicants were living in different countries, however, the Tribunal found that the parties gave consistent and credible descriptions about the sharing of finances and assets while the review applicant was living in China for two extended periods since their marriage. It accepted that during these visits the couple cohabited at the Australian immigration visa applicant’s parents’ house and that they spent time looking after the review applicant’s aged parents. The Tribunal was satisfied that although the parties had not had the opportunity to establish a separate household together, they had lived as husband and wife for extensive periods in China. The Tribunal found that the recent birth of the couple’s son was also a strong indication of a committed spousal relationship. The Tribunal therefore found that, at the time of the visa application, the Australian immigration visa applicant was the spouse of the review applicant within the meaning of r.1.15A, who was an Australian citizen, and met the requirements of cl.309.211(2) of the Regulations. Further, the Tribunal found that, at the time of the Tribunal’s decision, the applicant continued to be the review applicant’s spouse and satisfied cl.309.221 of the Regulations. Accordingly, the Tribunal was satisfied that the applicant met the requirements of cl.309.211 and cl.309.221 of the Regulations for the grant of the visa.

0807050
16 November 2009, Adelaide
Ms C Wilson, Member

PARTNER (TEMPORARY) (CLASS UK) – SUBCLASS 820.211 – CL.820.211(2) – SCHEDULE 3 CRITERIA 3004 – COMPELLING REASONS – A delegate of the Minister refused to grant the applicant a Subclass 820 visa as he was not the holder of a substantive visa at the time of application. Also, the delegate was not satisfied there were compelling reasons to waive the Schedule 3 criteria. The applicant gave evidence that he came to Australia in July 2007 on a three month tourist visa to attend his brother’s wedding. His brother, mother and stepfather live in Adelaide. He claimed he met the sponsor in 2007 on ‘Ladies Day’ for the Melbourne Cup and they began living together within a few months. When the applicant’s tourist visa was due to expire on 30 June 2008, he applied to the Department on 1 July 2008 for a further extension which was refused. He claimed he was told to apply for a spouse visa, which he did. The applicant stated at the hearing that it was his ‘own stupidity’ for not applying for the spouse visa until after his substantive visa had expired. He advised the Department that the reason he did not leave the country before his visa expired was that he could not afford the cost of a first class air ticket back to the UK. He claimed he discovered some weeks later that he didn’t meet the Schedule 3 criteria after a Departmental officer informed him they should not have allowed him to make this application. He claimed that if he had known this when he applied, he would have used that money to return to the United Kingdom (UK) and apply from there instead. He claimed he and the sponsor had rented a house together and he had contributed to the household and supported the sponsor’s two children. If he had to leave, he claimed he was worried about the bond he had built with the children. Also, he claimed it would be difficult for him to obtain work in the UK due to the dire economic situation there, that he worked and supported his family here and that he had nothing to go back to in the UK.

Held: Decision under review affirmed.

The Tribunal found that, as the applicant’s Tourist visa ceased on 30 June 2008 and he lodged his Partner visa application after the expiration of that visa, he was therefore required to meet each of the six requirements contained in criterion 3004(c) to (h) inclusive. In relation to: (c) The Tribunal found there were no factors beyond the applicant’s control which led him to not hold a substantive visa at the relevant time; (d) The Tribunal did not accept that not being advised by the Department in advance that he may not meet the Schedule 3 criteria amounted to a compelling reason to grant the applicant the visa. The Tribunal considered the applicant’s family ties in Australia were a compelling reason but found this was not a sufficiently compelling reason to grant the visa. Although the applicant’s relationship with the sponsor had deepened and they became engaged in November 2008 and the applicant had been providing financial support to the sponsor and her children, the Tribunal found that these factors were not in existence at the time of application and therefore could not be considered; (e) The Australian immigration visa applicant met cl.3004(e) as there was no evidence before the Tribunal that the Australian immigration visa applicant had not complied substantially with the conditions of his last substantive visa. (f) The Tribunal found that the applicant would not have been entitled to be granted the visa as he had not been in a de facto relationship for a period of 12 months immediately before the date of the application, having only met his de facto partner in November 2007 and applying for the spouse visa in July 2008; (g) The applicant met cl.3004(g) as the Tribunal accepted that the Australian immigration visa applicant intended to comply with any conditions to which his Subclass 820 visa would be subject if such a visa were granted to him; and (h) The Tribunal found that cl.3004(h) was not applicable in this case.

The Tribunal accepted that the applicant and sponsor were in a genuine relationship and acknowledged the distress and inconvenience that would be caused to them if the applicant was required to leave Australia and apply offshore. However, the Tribunal was not satisfied the reasons described were sufficiently compelling to justify not applying the Schedule 3 criteria. Accordingly, the Tribunal found that the applicant did not meet cl.820.211(2)(d)(ii) of the Regulations.

Partner Visas - Permanent

0806335
15 January 2009, Sydney
Mr D Connolly, Member

PARTNER (MIGRANT) (CLASS BC) – SUBCLASS 100 – CL.100.321 – A delegate of the Minister for Immigration and Citizenship refused to grant the applicant, a six year old child, a Partner (Migrant) (Class BC) Subclass 100 visa on the basis that she did not satisfy cl.100.321 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the primary applicant, her father, was no longer the ‘spouse’ of the sponsor as defined by r.1.15A of the Regulations. The sponsor advised the Department of Immigration and Citizenship (DIAC) that, since the granting of the Subclass 309 visa, the father had disappeared leaving the applicant in her care. She also advised DIAC of the withdrawal of her sponsorship. However, she stated that the applicant could stay with her until she was collected by the father.

Held: Decision under review affirmed.

The Tribunal accepted that the applicant entered Australia on a Subclass 309 visa as a member of the family unit of her father who was then missing. Consequently, her visa status remained the same as that of her father who had not been granted a Subclass 100 visa. The Tribunal found that the applicant did not meet the criteria in cl.100.321 as she was not a member of a family unit of a person who had been granted a Subclass 100 visa. The Tribunal took into account representations made by the former sponsor that she was willing to be the applicant’s carer until her father’s return. In view of the child’s age and, due to the lack of evidence before the Tribunal that the applicant would be cared for on her return to China, the Tribunal recommended that the Minister consider intervening in this case.

0807368
21 January 2009, Sydney
Ms K Raif, Member

PARTNER (MIGRANT) (CLASS BC) – SUBCLASS 100 – CANCELLATION – S.109 – S.107 – NOTICE OF INTENTION TO CONSIDER CANCELLATION – ADEQUATE PARTICULARS – A delegate of the Minister for Immigration and Citizenship cancelled the applicant’s Subclass 100 visa on the basis the applicant had not complied with ss.101, 103 and 105 of the Migration Act 1958 (the Act). The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.107 of the Act. The applicant stated in his application for the visa that he had not previously been married but inquiries by the Department of Immigration and Citizenship (DIAC) showed that he was married at the time of entering the marriage which was the basis of the grant of the Subclass 100 visa. The delegate found that the applicant had provided a ‘bogus document’, which certified there was no record of a marriage in his name. The applicant also failed to notify DIAC that he had provided an incorrect answer on his application. The applicant claimed that he believed the earlier marriage was not valid because it was a ‘shotgun marriage’ entered into under duress; the applicant and his sponsor continued to have a committed relationship; and they intended to marry properly and have children.

Held: Decision under review affirmed.

The Tribunal was satisfied that the applicant was already validly married at the time of entering into the subsequent marriage and that he had stated that he had not previously been married in his visa application. The Tribunal found that the NOICC did not sufficiently particularise the applicant’s non-compliance with ss.103 and 105 in accordance with s.107. However, it found that the NOICC was valid in its dealing with s.101. The Tribunal held there was non-compliance with s.101 of the Act in the way described in the NOICC.

In considering whether the visa should be cancelled, the Tribunal noted the applicant’s contrition, ongoing relationship, community contribution, and that separation resulting from cancellation may cause emotional hardship for the applicant and his sponsor. However, the Tribunal considered that these were outweighed by the circumstances in favour of cancelling the visa, including his failure to correct the information, knowing that it was false, in order to achieve a particular migration outcome, his period of previous unlawful stay in Australia, and his continuous and considerable disregard for Australia’s immigration laws. It found that the visa should remain cancelled.

0803150
30 April 2009, Melbourne
Ms Genevieve Hamilton, Member

PARTNER (MIGRANT) (CLASS BC) – SUBCLASS 100 (SPOUSE) – CL.100.221(2) – R.1.15A – GENUINE AND CONTINUING RELATIONSHIP – A delegate of the Minister refused to grant the applicant a Subclass 100 visa on the basis that he did not meet cl.100.221(2) of the Regulations on the basis that he did not respond to an invitation to provide evidence of his ongoing relationship with the sponsor. The applicant claimed that he and his sponsor met in 2000 and that they had been a couple in Bosnia prior to the sponsor’s departure. He claimed he took the sponsor to the airport when she migrated to Australia. He claimed that when she returned to Bosnia in December 2004 he was very happy and they announced their engagement on the same day. They married in January 2005 and several weeks later the sponsor returned to Australia to work. The applicant was granted a temporary partner visa and he joined the sponsor in Australia. In 2007, the Department wrote to the applicant inviting evidence regarding the ongoing relationship. The mail was returned unclaimed and the Department refused the permanent visa on the basis that they could not be satisfied the relationship was ongoing. The applicant claimed that he became aware of this a short time later and he contacted the Department to inform them of their new address. He also claimed that he advised the Department that he and the sponsor had 3 children and that their relationship was genuine and ongoing.

Held: Decision under review set aside

In considering the elements in r.1.15A, the Tribunal considered whether the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, a genuine and continuing relationship and that they either live together or do not live separately and apart on a permanent basis. The Tribunal accepted the evidence provided concerning the financial aspects of the relationship, the nature of the household and evidence that the applicant and sponsor were named as parents living at a shared address on the birth certificates of their 3 children. The Tribunal also accepted that the marriage was well-recognised socially by the families on both sides and by friends. As for the nature of their commitment to each other, the inception and development of the relationship, its progression to marriage and the birth of 3 children, the Tribunal found that these elements all reflected a normal young family life and indicated that the couple derived a considerable degree of companionship and emotional support from each other and saw the relationship as a long-term one. Based on all the evidence, the Tribunal found that the applicant and the sponsor continued to have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship between them was genuine and continuing and that they lived together or did not live apart on a permanent basis. Therefore, the Tribunal found that the applicant at the time of decision was a spouse within the meaning of r.1.15A. He continued to be married to the sponsoring spouse and consequently satisfied cl.100.221(1) of the Regulations.

0802167
21 July 2009, Sydney
Ms C Carney, Member

PARTNER (RESIDENCE) (CLASS BS) – SUBCLASS 801 (SPOUSE) – CL.801.221(1) – CL.801.221(6) – JOINT CUSTODY – A delegate of the Minister refused to grant the Australian immigration visa applicants Subclass 801 (Spouse) visas on the basis that the primary applicant did not meet the criterion contained in cl.801.221(2) of the Regulations, as the sponsor had withdrawn her sponsorship due to their relationship ending. The applicant claimed that he met the sponsor when she visited Senegal to continue her musical interests and her career. He claimed that they formed a relationship based on a mutual love of music and that she wanted him to return to Australia with her. The applicant traveled to Australia on a prospective marriage visa in 2006 with his son, the secondary applicant, and he married the sponsor in March 2006. He claimed that in May 2006 the sponsor asked him to leave the house in which they resided together. The sponsor wrote to the Department in December 2006 stating that her relationship with the applicant had ended. She stated that she was supportive of the applicant gaining permanent residency and indicated that she had instigated the separation. She stated that the relationship had ended due to cultural differences, especially in relation to her understanding of Islam. In February 2008 the sponsor wrote again to the Department stating that she withdrew her sponsorship of the applicant. She also stated that she was sending the secondary applicant back to his father in Perth. The applicant claimed that soon after he arrived with his son in Australia the sponsor began demanding that he live in accordance with a more strict form of Islam. He claimed that she demanded he give up his music, that she would not allow a female teacher to teach him English and that she punished his son if he showed any musical aptitude. The applicant claimed that his son had a strong bond with the sponsor and he considered her to be his mother. The applicant submitted Family Court Orders dated in February 2007 that were still in force. The orders provide for the applicant and sponsor to have joint responsibility for the long term care, welfare and development of the secondary applicant. The orders further provide that responsibility for decisions concerning day to day care rests with the parent who has the child in their care.

Held: Decision under review set aside

The Tribunal was not satisfied that the applicant was the spouse of the sponsor within the meaning of r.1.15A of the Regulations. The evidence of both the applicant and the sponsor was that the relationship had ended and the sponsor had withdrawn her sponsorship. Consequently, the Tribunal found that the applicant did not meet the criterion contained in cl.801.221(2) for the grant of a subclass 801 (Spouse) visa. The Tribunal then considered the Family Court Orders that provided for the sponsor and the applicant to share joint responsibility for the long term care, welfare and development of the secondary applicant. The Tribunal noted that the orders were still in force and that they appeared to have anticipated that day-to-day care of the child may change and that the orders made provisions for such a change. The Tribunal consequently found that the alternative provisions contained in cl.801.221(6) applied and therefore that the applicant met the prescribed criterion contained in cl.801.221(1) of the Regulations.

Prospective Spouse Visas

27 April 2009, Sydney
Mr D O’Brien, Principal Member

PROSPECTIVE MARRIAGE (TEMPORARY) (CLASS TO) – SUBCLASS 300 (PROSPECTIVE MARRIAGE) – CL.300.216 – GENUINE INTENTION TO LIVE TOGETHER AS SPOUSES – A delegate of the Minister refused to grant the applicant a Subclass 300 visa on the basis that the Australian immigration visa applicant did not satisfy cl.300.216 of the Regulations because the delegate was not satisfied that the Australian immigration visa applicant and the review applicant genuinely intended to live together as spouses. The review applicant had two previous spousal relationships before he developed a relationship with the Australian immigration visa applicant. The delegate was concerned that a statutory declaration by the review applicant stated that he had applied for a divorce from his second wife so that his relationship with the Australian immigration visa applicant could proceed. The delegate believed this suggested that the review applicant was preparing for his marriage to the Australian immigration visa applicant before having communicated with her and on this basis the delegate queried the review applicant’s motivation for entering into the relationship. The review applicant claimed that after the failure of his prior relationships, he sought the assistance of his parents in locating a partner from a Vietnamese family. He claimed that his parents knew a family in the village in Vietnam from which they came from who had an eligible daughter (the Australian immigration visa applicant). The review applicant’s mother rang the Australian immigration visa applicant’s mother to raise the prospect of the applicants making contact with each other. Following this initial contact, the parties spoke to one another regularly by phone. The review applicant and his mother and other relatives travelled to Vietnam to meet the Australian immigration visa applicant, where the couple decided to confirm the relationship and became engaged. After an engagement celebration with family and friends, the applicants claim to have lived together for a week in a city hotel. The delegate was concerned that the applicants did not undertake a traditional engagement ceremony. The review applicant claimed that he and the Australian immigration visa applicant had decided on a simple celebration which their friends could attend, and planned to have a traditional wedding ceremony when the Australian immigration visa applicant came to Australia. After returning to Australia, the review applicant kept in touch with his fiancée by telephone on a weekly basis. The applicants submitted phone cards for calls to Vietnam in support of the application and copies of invoices showing monthly money transfers from the review applicant to the Australian immigration visa applicant.

Held: Decision under review set aside

It was the Tribunal’s assessment that the review applicant and Australian immigration visa applicant did genuinely intend to live together as spouses and that they, therefore, met cl.300.216 of the Regulations. The Tribunal’s finding was based on consideration of all the circumstances of the relationship, including the evidence of the engagement celebration attended by friends and representatives of both families, the fact that the applicants lived together for a short time after the celebration, statements by the applicants made to the Tribunal about their long term commitment to one another,; and evidence of the parties constant telephone contact and of financial support provided by the review applicant to the Australian immigration visa applicant. The Tribunal did not share the delegate’s concern about the timing of the review applicant’s divorce from his second wife and noted that many would regard the initiation of divorce proceedings by the review applicant as the correct thing for him to have done before he sought to develop a relationship with the Australian immigration visa applicant. The Tribunal was satisfied that the time of decision criteria in cl.300.211, 300.214 and 300.216 continued to be satisfied. The criteria in cl.300.215 were not in dispute before the Tribunal, the delegate having made no finding in relation to them; therefore, the Tribunal could not make a finding on those criteria. Accordingly, the Tribunal remitted the matter to the delegate for reconsideration, with the direction that the Australian immigration visa applicant met cl.300.216.

071967406
5 May 2009, Sydney
Ms L Mojsin, Member

PROSPECTIVE MARRIAGE (TEMPORARY) (CLASS TO) – SUBCLASS 300 (PROSPECTIVE MARRIAGE) – CL.300.216 – GENUINE INTENTION TO LIVE TOGETHER AS SPOUSES – A delegate of the Minister refused to grant the applicant a Subclass 300 visa on the basis that the primary applicant did not meet cl.300.216 of the Regulations as the parties did not genuinely intend to live together as spouses. The primary applicant claimed he met the review applicant and her daughter in a refugee camp in the Ivory Coast. After a brief courtship, he proposed marriage to her which she accepted. He claimed that, in accordance with their traditions, he introduced her to his family and he paid a dowry indicating their engagement. Furthermore, he informed the traditional court of their engagement and he received a document acknowledging this. The couple claimed that they lived together in the Ivory Coast and Guinea from 1999 to 2004. When they were displaced from the Ivory Coast by war, they travelled together to Guinea where they lived in a refugee camp and they were registered as a family by the United Nations High Commissioner for Refugees (UNHCR). The review applicant claimed that they had lived apart for a short period as the applicant had cheated on her at one time but she subsequently forgave him. She claimed her details, her daughter’s and the Australian immigration visa applicant’s details were considered for migration to Australia through the International Catholic Migration Commission in 2003. The review applicant claimed that she was the only family member called for each of the three migration interviews and that she had stated she had a fiancé but they were not living together at that time due to relationship difficulties. Only she and her daughter were granted migration visas. Evidence was also submitted indicating that the 8 named secondary applicants were the Australian immigration visa applicant’s wards and that he had assumed responsibility for their care.

Held: Decision under review set aside

The Tribunal was satisfied that the parties had a genuine intention to marry and that they intend to marry within the visa period in accordance with cl.300.215. The Tribunal then considered cl.300.216 which required that the ‘parties genuinely intend to live together as spouses’. The Tribunal had some doubts as to the veracity of the review applicant’s claims in relation to how she obtained her migration visa but could not make an adverse finding with certainty and therefore, gave her the benefit of the doubt. The Tribunal found that the mandatory aspect of the term ‘spouse’ as defined in r1.15A did not apply to Subclass 300 visa applications; however, departmental policy provided that r.1.15A should be applied only in so far as it is applicable. The Tribunal found that since the parties were not yet married they had not had the opportunity recently to live together or to share domestic responsibilities other than for the periods when they resided together over 5 years ago. Accordingly, the Tribunal was satisfied that the Australian immigration visa applicant satisfied cl.300.216 of the Regulations.

0900381
9 July 2009, Sydney
Ms A Cranston, Member

PROSPECTIVE MARRIAGE (TEMPORARY) (CLASS TO) – SUBCLASS 300 (PROSPECTIVE MARRIAGE) – CL.300.214 – ‘PARTIES HAVE MET AND ARE KNOWN TO EACH OTHER PERSONALLY’ – A delegate of the Minister refused to grant the applicant a Subclass 300 visa as he was not satisfied that the applicant and the sponsor had met in person in April 2007 as claimed in the visa application. The applicant stated that she met the sponsor in Turkey in April 2007 through the sponsor’s aunt who lives two streets away from her. She also claimed she knew the sponsor’s mother from when she came to Turkey in 2005 to attend her father’s funeral and stayed with the sponsor’s aunt for 1-2 months.

The applicant claimed that her introduction to the sponsor was arranged by both of their mothers and on the following day, the sponsor and his mother returned to visit and they talked about themselves. She claimed she and the sponsor liked each other so they exchanged phone numbers. The sponsor has been married once previously. He claimed that their families had arranged that meeting and they had married the next day; however, his wife had changed her mind and requested a divorce on the following day. They divorced one week later. The applicant claimed to have been first introduced to the sponsor 2 days after his first marriage took place. He claimed to have met with the applicant four times in total before the sponsor and his mother returned to Australia in May 2007. After this, they claimed that their main avenue of communication was via the phone and that the sponsor had proposed over the phone three months after he returned to Australia. An engagement celebration was held in Turkey two months later; however, the sponsor did not attend this engagement as his mother was not well. In her application, the Australian immigration visa applicant submitted photos of an engagement celebration that had been conducted in Turkey by proxy. In support of the review, the applicant submitted additional photos showing her and the sponsor together in various social settings. The sponsor and his parents gave oral evidence to the Tribunal in support of the application. The sponsor’s father stated that he wanted the parties reunited so they could start a family.

Held: Decision under review set aside

The Tribunal found that the sponsor presented at hearing as a person from a “close-knit family who was honest and unsophisticated”. The Tribunal noted that the sponsor’s parents, who also attended the Tribunal hearing, were clearly supportive of the sponsor’s relationship with the applicant. The Tribunal found the sponsor’s evidence at hearing to be consistent with the applicant’s claims. Taking the parties’ consistent evidence into account as well as the many photos submitted showing the applicant and the sponsor together, the Tribunal was satisfied that the parties had met and were known to each other personally. Thus, the Tribunal found that the applicant satisfied cl.300.214 of the Regulations.

0903545
13 October 2009, Melbourne
Mr D.B. Mitchell, Member

PROSPECTIVE MARRIAGE (TEMPORARY) (CLASS TO) – SUBCLASS 300 – VISA REFUSAL – CL.300.214 – APPLICANTS KNOWN TO EACH OTHER AT TIME OF APPLICATION – The review applicant was born in Bulgaria and first arrived in Australia in 1977. He claimed that he had been married and divorced three times and had no children. The Australian immigration visa applicant was a national of Bulgaria who had lived in Spain for a number of years and had three adult sons from a marriage that ended with the death of her husband in 1999. The parties claimed that they met in the Australian immigration visa applicant’s then home town of Ruse, Bulgaria, on 20 October 1975. He claimed that he was due to board a ship that was leaving Ruse and he had time to kill before its scheduled departure so he sat in the park whereby he began talking to the Australian immigration visa applicant who was there with her mother and 12 month old son. The review applicant claimed that he was leaving Bulgaria to flee to Austria, and he did not intend to return. He claimed that as he did not know if he could trust the Australian immigration visa applicant, he told her that he was going on a holiday to Germany. The applicant stated that he was able to recall this meeting that occurred more than 30 years ago because leaving his home country was a very significant moment in his life. The Australian immigration visa applicant claimed that she was able to remember the date of their meeting because it was only a few days after her son’s first birthday. The review applicant claimed that in 2004 he sent a letter to the Bulgarian newspaper, Trud, saying that he was looking for a Bulgarian partner and giving his contact details, and that some time later the Australian immigration visa applicant telephoned him in response to his letter. He claimed that during their initial telephone conversation, she told him that she used to live in Ruse, and that upon further questioning, they realized that they had met in Ruse 30 years before. After further contact by phone and letter over a three year period, the review applicant proposed over the telephone and the Australian immigration visa applicant accepted.

Held: Decision under review set aside.

The Tribunal noted that it could understand the delegate’s disbelief of the claim that the Australian immigration visa applicant, who responded to the review applicant’s advertisement in a Bulgarian newspaper, was the same woman the review applicant had met briefly in Ruse almost 30 years previously when he was fleeing Bulgaria. The Tribunal considered the possibility that the Australian immigration visa applicant and the review applicant had concocted their story in the time since they claimed to have re-established contact in 2005. The Tribunal also noted that there were inconsistencies in their oral evidence at the hearing concerning who first left the park where they claim to have met, the timing of their next contact, the timing of the review applicant’s marriage proposal and whether or not the Australian immigration visa applicant accepted immediately, and the number of letters they had exchanged since re-establishing contact. However, the Tribunal took into account that the parties gave evidence that was generally consistent regarding such matters as the date and place of their meeting, what they told each other concerning their personal circumstances, the presence of the Australian immigration visa applicant’s mother, the approximate duration of their conversation, and the purpose of the review applicant’s visit to Ruse. The Tribunal also took into account the Australian immigration visa applicant’s ability to recall the date of their meeting by reference to the approximate age of her first child at the time. The Tribunal accepted that coincidences happened in life and that on balance, it accepted that the applicants met in Ruse in October 1975 and that, by coincidence, the Australian immigration visa applicant had responded to his advertisement in the Bulgarian newspaper. Consequently, the Tribunal found that, at the time of application, the parties had met and were known to each other personally, and accordingly, that they met the requirements of cl.300.214 of Schedule 2. The Tribunal further noted that, as the delegate had not made findings regarding the remaining time of application criteria, it was not appropriate for it to proceed to make findings concerning the parties’ genuine intention to marry and to live together as spouses. However, the Tribunal noted that the inconsistencies listed above warrant closer inspection by the Department, as well as the limitation on the Minister’s discretion to approve sponsorships as contained in r. 1.20J.

Migration Review Tribunal Decision Summaries

Australian Immigration - Partner Visas

Partner Visas - Temporary

Partner Visas - Permanent

Prospective Spouse Visas

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