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CATCHWORDS: Review of visa refusal - Subclass 300 - prospective spouse - Regulation 1.15A

Damena, Samuel Taye [2000] MRTA 3273 (12 October 2000)

Damena, Samuel Taye [2000] MRTA 3273 (12 October 2000)
Last Updated: 5 December 2000

[2000] MRTA 3273

CATCHWORDS: Review of visa refusal - Subclass 300 - prospective spouse - Regulation 1.15A

REVIEW APPLICANT Samuel Taye Damena

VISA APPLICANT: Enigda Work Farise Damtew

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: Peter Hohnen

MRT FILE NUMBER: 99_02957

DIMA FILE NUMBER: 99_034956

DATE OF DECISION: 12 October 2000

AT: Canberra

DECISION: The Tribunal remits the application made by the visa applicant for an visa to the Department, for reconsideration with the direction that the visa applicant is to be taken to have met the following criteria for a Prospective Marriage (Temporary) (Class TO) visa:

* 300.214

* 300.215

* 300.216

* 300.221

The Tribunal does not make any findings in respect of 300.3, criteria relating to the secondary applicant.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate) to refuse to grant a Prospective Marriage (Temporary) (Class TO) visa. Ms Eingda-Work Farise Damtew (the visa applicant), a national of Ethiopia, born on 17 July 1967, applied for the visa on 25 January 1999. Her sister, Elsabet Farise Damtew, a national of Ethiopia, born on 13 March 1983, is a secondary applicant to the visa. The delegate's decision to refuse to grant the visa was made on 4 May 1999.

JURISDICTION AND STANDING

2. Mr Samuel Taye Damena (the review applicant), an Australian citizen, born on 5 May 1963, is the prospective spouse and sponsor of the visa applicant. He lodged a valid application for review to this Tribunal on 28 June 1999. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

LEGISLATION AND POLICY

3. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs (DIMA). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Legislation:

Regulation 1.15A of the Regulations

Item 1215 of Schedule 1 to the Regulations

Part 300 of Schedule 2 to the Regulations

Policy:

Procedures Advice Manual 3

6. The Tribunal generally has regard to the regulations as the regulations stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

BACKGROUND AND EVIDENCE

7. The Tribunal has the following files:

* T1: MRT case file A99/02957.

* D1: DIMA case file F99/034986.

8. Relevant documents on those files includes, but is not limited to, the following:

* Notes of interviews with the visa applicant and the review applicant

* Photographs of the visa applicant sent to the review applicant.

* Postmarked envelopes from the visa applicant addressed to the review applicant

* Notice of Intended Marriage form lodged by the review applicant with the SA Office of Consumer and Business Affairs on 17 February 1999

* Primary decision record

* Various submissions to the Tribunal by the review applicant's agent

* Statutory declarations from the review applicant's sister and a friend

9. A hearing of this matter was conducted in Canberra on Monday 11 September 2000. The review applicant gave evidence by video link-up to Adelaide, where he was assisted by a migration agent, Libby Hogarth (registered number 64758). An Amharic interpreter also assisted the review applicant. In addition to the review applicant, evidence was given by his sister, Rahal Taye, and Yemane Tecklezgi.

10. According to information provided by the visa applicant and the review applicant, they knew each other as children when they lived in the same town in Ethiopia. They commenced a relationship in 1985. They apparently agreed to marry each other in 1987.

11. In 1988 the review applicant suddenly left Ethiopia under unusual circumstances, to escape persecution. His father was killed shortly before the review applicant left Ethiopia. He travelled to Egypt, where he was later imprisoned before spending several years as a displaced person in Egypt and Sudan. He suffered long-term mental health problems as a result of experiencing torture. He migrated to Australia as a refugee in 1991. He has not seen the visa applicant since 1988.

12. In 1994 the visa applicant moved to Egypt. She lived with two of the review applicant's sisters. One of the review applicant's sisters later migrated to Australia. She arranged for him to re-commence contact with the visa applicant. It is not clear when the parties re-commenced contact. The review applicant had avoided contacting the visa applicant previously because he suffered depression and other mental health problems upon his settlement in Australia. By the time his sister migrated, he had secured stable employment and was managing his mental health. His sister encouraged him to contact his former fianc�e. They maintained contact by letters and infrequent phone calls. He used phone cards to call her. Copies of several envelopes addressed to the review applicant by the visa applicant have been provided.

13. The review applicant has provided statutory declarations from his sister, and from a friend who was imprisoned in Cairo with him, Mr Tecklezgi. He and the review applicant have been friends for 10 years. Mr Tecklezgi apparently visited the visa applicant in Cairo at the review applicant's request in 1997. He took a video of her for the review applicant and took gifts from her to the review applicant.

14. According to notes of an interview conducted on 2 March 1999, the visa initially denied ever having applied for an Australian visa previously. However, she later admitted that she had applied for a refugee visa when presented with evidence of the application. Although the details of this application are not before the Tribunal, it appears she was sponsored in that application by a Mr Nabil Yosuf, whom she described as a friend. A submission to the Tribunal by the review applicant's agent states that Mr Yosuf is a friend of both the visa and review applicants, and also a distant relative of the visa applicant.

15. At the time the visa application was lodged, Class TO contained one subclass: Subclass 300 (Prospective marriage).

16. The criteria under review are:

* sub-regulation 300.214, which requires that at the time of application the visa and review applicants had met and were personally known to each other,

* sub-regulation 300.216, which requires that at the time of application the visa and review applicants intended to live together as spouses as defined by regulation 1.15A, and

* sub-regulation 300.221, which requires that the visa applicant continues to meet the requirements of 300.214 and 300.216, amongst other criteria, at time of decision.

FINDINGS

17. The review applicant's agent requested additional time at the conclusion of the hearing, in order to investigate the feasibility of submitting further written evidence to the Tribunal. However, by letter of 10 October 2000 the agent advised the Tribunal that it was not intended to furnish any further material. The Tribunal was requested to make a decision on the evidence already available.

18. Sub-regulation 300.214 requires that a decision be made as to whether two parties have met, and whether they are "personally known to each other". There are no policy guidelines for assessing whether two parties are personally known to each other.

19. The review applicant's sister stated in a statutory declaration that she was aware of their engagement whilst they were living in Ethiopia. Both parties have given consistent accounts of their relationship. Neither party denies that they have not met since 1988. However, as the evidence unfolded at the hearing, this lack of contact was explained.

20. Sub-regulation 300.216 requires that a decision be made about the genuineness of the parties' plans to live together as spouses. PAM 3 states that this should be assessed by having regard, as far as practicable, to the definition of `spouse' in regulation 1.15A.

21. Regulation 1.15A contains the test to be applied to determine whether one person is the `spouse' of another person. Subregulation 1.15A (3) states that in forming an opinion as to whether two people are in a married relationship regard must be given to all of the circumstances of the relationship including: financial aspects of the relationship, nature of the household, social aspects of the relationship, and the nature of the persons' commitment to each other.

22. The review applicant's unfortunate background has complicated what is already quite a difficult case to assess, on the issue of whether or not his relationship with the visa applicant is a genuine one. The Tribunal experienced difficulty in obtaining lucid evidence from the review applicant at various times during his evidence, despite the assistance of an interpreter. The Tribunal notes that since coming to Australia, the review applicant has suffered from severe mental health problems related to his unfortunate experiences in Ethiopia and in his subsequent incarceration in Cairo. This turbulent background has made it impossible for the review applicant to conduct any form of traditional courtship as experienced in "western" communities.

23. The Tribunal on balance, attributes the review applicant's vagueness as a witness to his psychological state. This has been described in some detail by a senior counsellor in Adelaide from "STTARS" (Survivors of Torture and Trauma Assistance and Rehabilitation Service) in her letter to the Tribunal of 30 July 1999:

"I am writing in support of Mr Damena's application to sponsor his fiancee to join him in Australia in order that they may fulfill a long held wish to marry and have a family.

Originally from Ethiopia Mr Damena was imprisoned and tortured prior to his arrival in Australia in 1991. Mr Damena first sought treatment for his psychological health problems from STTARS in 1995, as a result of his torture and trauma experiences he was treated for symptoms of severe post traumatic stress disorder and depression. Unfortunately his mental health deteriorated and he moved interstate. For the next two years Mr Damena was not in contact with STTARS, however I was informed by independent sources (and confirmed later by Mr Damena) that his mental health had deteriorated to such an extent that he had become homeless, had lost all of his belongings and was becoming increasingly unable to care for himself and could not maintain any relationships.

Mr Damena was finally admitted to a psychiatric hospital where he was given treatment for his mental illness. Fortunately, this treatment was successful and Mr Damena moved back to Adelaide, established himself in the community again, began working and sponsored his sister and her husband to Australia.

Mr Damena has worked very hard to overcome the debilitating effects of his torture and trauma experiences and now for the first time in many years he is able to look towards a bright future. During the years of his illness he felt that he did not have a future he could barely sustain the relationships he had with people in his immediate vicinity, let alone have any contact, meaningful or otherwise with loved ones living in another country. Avoidance and withdrawal from people and relationships being a significant feature of post traumatic stress disorder.

As a young man living in Ethiopia Mr Damena had a significant relationship over a number of years with Ms Damtew and as is their custom, they intended to marry. Unfortunately, their plans were thwarted by the events that followed and the couple were unable to fulfill their dreams of a life together. It is not surprising that in the intervening years until relatively recently, Mr Damena has been able to only have intermittent contact with his fiancee. Initially he was unable to maintain contact because of his flight and imprisonment, later his mental health problems prevented consistent contact. However, I believe that this has not in any way undermined their original plan to be together. Just as Mr Damena still cares for and loves his family members after many years of only sporadic contact, the same applies to his feeling for Ms Damtew.

When reviewing the decision I urge you to consider the circumstances of Mr Damena's troubled resettlement process and how this prevented him from maintaining the type of contact which is regarded a s "appropriate" for this application category. It would be tragic if the effects of his torture and trauma, which for a number of years prevented him from functioning in a healthy and productive way and which he has fought so hard to overcome, now threatens his future happiness.

As Mr Damena's counsellor for a number of years now I believe that I can say with some authority that Mr Damena is genuine in his desire to be reunited with his fiancee. He is concerned that too many years have been lost as a direct result of his torture and trauma experiences and he is keen to get married to the woman whom he has always hoped to be his future wife. It is his greatest wish now to consolidate his life here in Australia by starting his own family and finally having the opportunity to put the past behind him."

24. The review applicant testified at the hearing about his friendship with the visa applicant in his teenage years in Ethiopia. There was a close relationship. Despite their youth, they did discuss the prospect of a future marriage when their future would be more certain. The review applicant and the visa applicant often visited each other's homes and they were well known to each other's parents. The early relationship prior to the review applicant leaving Ethiopia in 1998 is corroborated by the evidence of the review applicant's sister, Rahel. It is hardly surprising that, during the review applicant's period of imprisonment in Cairo, the review applicant found it difficult if not impossible to communicate with the visa applicant. He apparently felt traumatised and shameful about his unfortunate circumstances. However, it is clear from the evidence of his fellow inmate, Mr Tecklezgi, that whilst in prison in Cairo, the review applicant frequently spoke not only of his own family but also of the visa applicant whom he considers to be his fianc�e.

25. It is clear to the Tribunal from the evidence both of the review applicant and his sister Rahel, that soon after arriving in Australia as a refugee, the review applicant, as soon as he began to respond to psychological counselling, resumed contact with the visa applicant. Now that he can see a future ahead of him, the review applicant has testified that he wishes to carry out his original intentions and marry the visa applicant. His intention in this regard is clearly reciprocated by her, notwithstanding the lapse of twelve years. It is important in the Tribunal's opinion to emphasise the fact that the parties have had a low level of contact over this period due to bizarre, even tragic circumstances, beyond the review applicant's control.

26. The Tribunal is satisfied on balance that the following criteria are satisfied (at time of application and at time of hearing):

* The parties have met and are known to each other personally.

* The applicant has established:

1. that the parties genuine intend to marry; and

2. the parties to take place within the visa period

* That the parties genuinely intend to live together as spouses.

27. After considering all of the evidence on file, noting particularly the various statutory declarations, the notice of interested marriage and various submissions, and the evidence given at the hearing, the Tribunal is satisfied on balance that the visa applicant and the review applicant have met and are known to each other personally. The Tribunal is satisfied that the parties genuinely intend to marry within the visa period. The Tribunal is satisfied that the parties have a genuine and continuing relationship, despite their enforced separation.

DECISION

28. The Tribunal remits the application made by the visa applicant for an visa to the Department, for reconsideration with the direction that the visa applicant is to be taken to have met the following criteria for a Prospective Marriage (Temporary) (Class TO) visa:

* 300.214

* 300.215

* 300.216

* 300.221

29. The Tribunal does not make any findings in respect of 300.3, criteria relating to the secondary applicant.
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