1410136 (Migration)

[2015] AATA 3284

1410136 (Migration) [2015] AATA 3284 (4 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr George Germanos

VISA APPLICANT:  Mrs Tetyana Nikitenko

CASE NUMBER:  1410136

DIBP REFERENCE(S):  OSF 2013/044548

MEMBER:Hugh Sanderson

DATE:4 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 04 August 2015 at 1:26pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 March 2014 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) Subclass 300 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 August 2013 as a member of the family unit of her daughter, the primary visa applicant. The delegate refused to grant the visa on the basis that the visa applicant did not meet the criteria in cl.300.311 as the delegate was not satisfied that the visa applicant was a member of the family unit of the primary visa applicant. Specifically, the delegate was not satisfied that the visa applicant was dependent upon the primary visa applicant.

   Background

3. The review applicant was the sponsor of the Prospective Marriage visa application and was, at the time of the application, the fiancée of the visa applicant’s daughter. He has since married the visa applicant’s daughter and she and her son have now been granted subclass 820 Partner visas.

4. The visa applicant is a citizen of the Ukraine and is currently 67 years old. She is the mother of Iryna Nikitenko who was the primary applicant for a subclass 300 Prospective Marriage visa. The primary applicant was granted the Subclass 300 Prospective Marriage visa on 5 May, 2014 and entered Australia on 16 August 2014 with her son, Illia, who was granted a visa as her dependent and secondary applicant.

5. The visa applicant claimed that she divorced her husband in 2002. She owned a clothing shop in Odessa from February 1993 until July 2009 when she claimed she retired. She claimed to receive an age pension in the amount of 800 UAH per month. She was the joint owner with her daughter of the home in which they lived with her grandson. She claimed to be dependent upon her daughter for accommodation, food and all other expenses.

6. The visa applicant was interviewed by officers from the department. A number of concerns were raised about whether the visa applicant was dependent upon her daughter as a result of this interview. In response to these concerns, the following claims were made:

   ·When the visa applicant stopped working in 2009 she passed her business onto her daughter and now she only attends the business occasionally;

   ·The visa applicant does not get any income from any time that she spends at her daughter’s business and the only income she gets is the 800 UAH per month from her pension and not 1,000 UAH as stated by the visa applicant;

   ·The visa applicant maintained a ‘Certificate of Entrepreneurship’ as she loves travelling and this helps facilitate her in being granted visas;

   ·The $5,000 in savings in her name belongs to the review applicant which was loaned to the visa applicant in order to demonstrate that she had the financial capacity to support herself in Australia

7. When considering the application for the visa applicant, the delegate noted the following issues:

   ·The visa applicant owns a 50% interest in the apartment where she lived with her daughter and therefore provides her own shelter;

   ·The 2013 minimum wage in the Ukraine was set at 1,147 UAH per month which is only slightly more than the pension that she receives and does not take into account the fact that she owns an interest in her home;

   ·The explanation that the $5,000 in the visa applicant’s bank account was actually the review applicant’s money appeared to be an admission that the parties tried to mislead the department about the visa applicant’s financial situation which called into question all the evidence given by the parties;

   ·There is significant uncertainty about the participation by the visa applicant in the business she used to own and now claims is owned by her daughter; and

   ·If the visa applicant claimed to enjoy international travel, there was no explanation as to how she could do this if her income was as low as it was claimed.

8. Taking these factors into account, the delegate was not satisfied that the visa applicant was dependent, as defined in reg.1.05A, on the primary visa applicant and therefore was not a member of the family unit, as defined in reg.1.12(1)(e)(iii), of the primary visa applicant. Accordingly, the visa applicant did not meet the criteria in cl.300.311 and the application was refused.

9. The review applicant provided submissions to the tribunal where the following was claimed:

   ·The visa applicant was confused when she said that she was still working as she has not worked now for more than five years;

   ·She receives a pension of about 1,050 UAH per month;

   ·She gets no income from any time that she spends at her daughter’s stall;

   ·The shop was purchased for the primary visa applicant by her father and her mother has no interest in the shop;

   ·The cost of maintaining the apartment in the Ukraine is more than the visa applicant’s pension;

   ·When asked to provide financial information, the visa applicant’s daughter took her life savings of $5,000, which she kept in cash at her home as she did not trust banks, deposited that money into the bank in her mother’s name and then withdrew the money the next day;

   ·This is typical behaviour in Ukraine as it is what is required to be done to have evidence of savings to obtain a tourist visa; and

   ·All international travel by the visa applicant has been paid for by her daughter.

10. The primary visa applicant was granted a subclass 820 Partner visa on 12 June 2015.

    The hearing

11. The review applicant appeared before the tribunal on 6 July, 2015 to give evidence and present arguments. The tribunal also received oral evidence from the primary visa applicant and the visa applicant. The tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

12. The review applicant and his wife gave consistent information as to various aspects of the visa applicant’s life. It was confirmed that she continues to live alone in the apartment she had been sharing with her daughter and grandson. She was receiving a pension of 1,050UAH per month. She did not receive any other income. Her daughter left her US $2,000 when she left the Ukraine to meet the additional expenses of the visa applicant. This money has now almost all been spent and more money will have to be provided to the visa applicant to allow her to meet her expenses.

13. It was claimed that the expenses for the apartment exceed 1,300UAH per month. This includes expenses for electricity, gas, water and associated costs.

14. It was confirmed that the visa applicant divorced her husband in 1985. The error in the translation of the divorce certificate was noted. It was stated that the visa applicant has no near relatives who live in the Ukraine. It was stated that her sisters are both deceased.

15. It was claimed that the visa applicant’s daughter had always been the owner of the business selling clothes. The visa applicant had previously been employed in another business, but the shop in the markets was the visa applicant’s daughter’s business. This shop was closed down by the visa applicant’s daughter in July 2014, prior to her travel to Australia. She said that she had tried to sell the business, however, it was not viable and there was no interest from anyone to buy it. She said that she received an irregular income from the business which could range from US$300 a week, or US$700 a week or US$500 a week. She said that no records were kept. Any saving she was able to accumulate she kept in her home as she did not trust the banking system in the Ukraine.

16. The visa applicant’s daughter said that she had now been granted a subclass 820 Partner (Temporary) visa. Her son had also been granted the visa. She did not include her mother in that visa application as her mother had been refused the Prospective Marriage visa and she did not know she should have included her in that visa application.

17. The tribunal explained the definition of a dependent to the review applicant. He said that without support provided by her daughter the visa applicant would not have sufficient funds to meet her expenses. He said that she continues to require financial support from her daughter which was provided by leaving her US$2,000 when she left the Ukraine.

18. The tribunal referred to the time of decision criteria which requires the visa applicant to continue to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 300 visa. The tribunal noted that as the primary applicant (the visa applicant’s daughter) had now been granted the subclass 820 Partner visa it did not appear that the visa applicant met this criterion. This issue was then discussed.

19. The visa applicant gave evidence to the tribunal by way of telephone link. She confirmed the information provided by her daughter as to her expenses and her pension. She said that all her pension is used to meet the expenses for her apartment and she is required to spend the money her daughter gave her to meet her other expenses. She said that she only buys bread, milk and fruit for her food and she cannot afford meat or other food items. She said that she spends about 30UAH per day on her food.

20. It was agreed that the review applicant would have until 31 July, 2015 to provide further information in support of the application. This would include documentary evidence as to the expenses for the visa applicant and any submissions in support of ministerial intervention.

    Post hearing documents

21. The review applicant provided further documents to the tribunal in support of the application. This included details as to the expenses for the visa applicant’s accommodation, copies of decisions from the department refusing the visa applicant Visitor visas and submissions by the review applicant and his wife.

22. In the submissions the following issues were raised:

    ·The visa applicant’s daughter paid for all expenses for herself and the visa applicant while they were living together in the Ukraine;

    ·The only income the visa applicant received was her pension which is currently 1,050UAH per month;

    ·The expenses of the visa applicant amount to not less than 2,800UAH per month;

    ·The visa applicant had not been in paid employment since July 2009;

    ·The visa applicant’s activities in her daughter’s stall after 2009 was simply to give some assistance to her daughter on occasions and she did not receive any income for this;

    ·The US$5,000 which was deposited into an account opened by the visa applicant was the savings of her daughter which she held in cash and was deposited into an account opened by the visa applicant to show to the Australian authorities that she had money to support herself when she came to Australia;

    ·All the travel the visa applicant has done since 2009 had been paid for by her daughter;

    ·The visa applicant is now suffering from depression as she has been separated from her daughter for the last year;

    ·The visa applicant has relied upon the money left by her daughter to meet her expenses over the last year;

    ·The visa applicant will be sending further money to her mother as she does not have the financial capacity to meet her expenses; and

    ·It would be harsh if the visa applicant was not able to enter Australia to be cared for by her daughter.

23. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in the present case is whether, at the time of the application and at the time of the decision, the visa applicant was a member of the family unit of her daughter who satisfies the primary criteria for the grant of a subclass 300 Prospective Marriage visa. During the hearing, the tribunal raised a second issue, that being the time of decision criteria in cl.300.321 that the visa applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 300 visa. It is noted that at the time of the decision the primary applicant for the subclass 300 Prospective Marriage visa has been granted a subclass 820 Partner visa and is no longer the holder of a subclass 300 visa.

    Member of the family unit

25. The definition of a member of the family unit is set out in reg.1.12. This, in part, requires the visa applicant to be a relative of the family head and that she does not have a spouse or de facto partner, is usually resident in the family heads household and is dependent on the family head.

26. The tribunal is satisfied that the visa applicant is the mother of the primary applicant for the visa and is therefore her relative. The tribunal is satisfied that the visa applicant divorced her husband in 1985 and has not partnered since then. Accordingly the tribunal finds that she does not have a spouse or de facto partner. The tribunal is satisfied that the visa applicant was living and continues to live in the home in which the primary visa applicant was living when in the Ukraine and is jointly owned by them. Accordingly the tribunal is satisfied that the visa applicant is usually resident in the family head’s household.

    Dependent

27. The basis of the department’s decision in refusing the application was that the visa applicant was not dependent upon the family head. The definition of a dependent is set out in reg.1.05A. This requires, in part, that the visa applicant is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the visa applicant’s basic needs for food, clothing and shelter and that the visa applicant’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter.

28. An alternative to this requirement is if the visa applicant is incapacitated for work due to the total or partial loss of the visa applicant’s bodily or mental functions. There is no information before the tribunal which would indicate that the visa applicant meets this criteria.

29. The tribunal is satisfied that at the time of the application the primary source of income for the household of the visa applicant and her daughter was the daughter’s income earned from the clothing stall she had in the markets. The tribunal is satisfied that although the visa applicant did provide some assistance to her daughter at this market, it was not for wages and she was not paid for any assistance she gave to her daughter in looking after the stall while her daughter was required to attend to other duties.

30. The income the visa applicant’s daughter earned from her business varied from week to week. The tribunal accepts the evidence of the visa applicant’s daughter that this ranged from US$300 (approximately 6,500UAH) to US $700 (approximately 15,000UAH) per week. At this time the visa applicant was receiving a pension of about 250UAH per week, less than 40% of the minimum income earned by her daughter or 15% of the higher end of her weekly income.

31. The tribunal finds that the visa applicant’s daughter was able to accumulate some savings over this period. This enabled the visa applicant’s daughter to have available US$5,000 to deposit into the account of the visa applicant to support a claim that she had the financial resources to support herself. The tribunal finds further that almost all the expenses of the household were met by the visa applicant’s daughter.

32. The visa applicant was living in a unit owned jointly by herself and her daughter. The ownership of this unit must be taken into account when considering the financial support needed to meet the visa applicant’s basic needs for shelter. The ownership of the unit is, however, only part of the expenses for shelter. The tribunal finds the cost for shelter must be include the expenses related to that unit, including electricity, rates, garbage removal, and associated expenses and not just the value of the unit itself.

33. The tribunal accepts the claims of the visa applicant and her daughter that the additional costs for food and clothing for the visa applicant well exceeded the pension the visa applicant receives and that the expenses for the visa applicant were met by her daughter from the income she derived from her clothing stall.

34. The tribunal notes the information in the department’s decision that the pension received by the visa applicant was slightly less than the minimum wage which, in 2013, was 1,147UAH per month. The minimum wage was set at no lower than the poverty level for able-bodied persons. The tribunal finds that the visa applicant was not living at the poverty level and it would not be expected or reasonable to base her basic needs for food, clothing and shelter at poverty level. The tribunal finds that the visa applicant and her daughter were living at a level substantially higher than the poverty level in the Ukraine and they were able to do so based on the income earned by the visa applicant’s daughter.

35. When considered as a whole, the tribunal finds that the visa applicant did, on her own, make a contribution towards her financial support for her basic needs of food, clothing and shelter. This was based on her part ownership of the unit jointly owned with her daughter and also the contribution of her pension. The tribunal finds that this contribution, however, would not have met even half the expenses for the visa applicant’s basic needs for food, clothing and shelter. The tribunal finds that the visa applicant’s daughter was providing the majority of the financial support for the visa applicant and therefore the visa applicant was substantially reliant upon her daughter to meet her basic needs of food clothing and shelter at the time of the application and for a substantial period immediately before that time.

36. Accordingly, the tribunal finds that at the time of the application the visa applicant was dependent upon her daughter as the family head and therefore meets the definition of a member of the family unit in reg.1.12 and the criteria in cl.300.311.

    Time of decision criteria

37. The time of decision criteria in cl.300.321 requires the visa applicant to continue to be a member of the family unit of her daughter.

38. The visa applicant remains living in the home jointly owned by herself and her daughter. The tribunal accepts that her daughter left the visa applicant a sum of US$2,000 at the time she departed the Ukraine to provide for the support of the visa applicant. The tribunal finds that this money has been utilised by the visa applicant to meet basic needs for food, clothing and shelter and that the visa applicant remains substantially dependent upon her daughter for her expenses.

39. Part of the requirement of the criteria in cl.300.321 is that the visa applicant continues to be a member of the family unit of the primary applicant who is the holder of a subclass 300 visa. The visa applicant’s daughter was granted the subclass 300 visa on 5 May, 2014. She then entered Australia on 16 August, 2014 and applied for a subclass 820 Partner visa. The visa applicant’s daughter included her son as a dependent but did not include the visa applicant as a dependent in that subclass 820 Partner visa application. She and her son were granted a subclass 820 Partner visas on 12 June, 2015. As such, the visa applicant’s daughter is no longer the holder of a subclass 300 visa.

1. As the visa applicant’s daughter is not the holder of a subclass 300 visa at the time of the decision the visa applicant does not satisfy the criteria in cl.300.321 and the decision to refuse the application must be affirmed.

   Ministerial intervention

2. As set out above, the tribunal is satisfied that at the time of the application the visa applicant was dependent upon her daughter, the primary visa applicant, and was a member of her family unit. The tribunal is satisfied that the applicant met the criteria in cl.300.311 upon which the department based their decision and would otherwise have remitted the application to the department for further consideration. The tribunal has affirmed the decision of the department as the visa applicant’s daughter is no longer the holder of a subclass 300 visa and therefore the visa applicant does not meet the time of decision criteria in cl.300.321.

3. The review applicant and the other parties in these proceedings have asked the tribunal to support an application for Ministerial intervention. The tribunal supports this application on the grounds that the circumstance whereby the visa applicant does not meet the criteria for the grant of the visa is based on clearly unintended consequences of the legislation.

4. The reason for the refusal of the visa is that the visa applicant’s daughter was granted the subclass 300 visa and in accordance with the obligations of that visa she entered Australia and married her sponsor. She then applied for a grant of a subclass 820 Partner visa on 5 February, 2015 before the subclass 300 visa expired. The relationship with the sponsor was assessed as being genuine and she was granted that visa. As the daughter now has been granted the subclass 820 visa the visa applicant does not meet the criteria for the grant of a subclass 300 visa.

5. The particular circumstances of the parties also deserve consideration. The circumstances include the following:

   ·The visa applicant is a 65-year-old woman with no other close relatives living in the Ukraine;

   ·The visa applicant has a very close relationship with her daughter and her daughter has been financially supporting her since 2009;

   ·The visa applicant’s only source of income at this time is a pension which is at a rate less than the poverty level in the Ukraine;

   ·The visa applicant may now be eligible for the grant of another visa class, such as an Aged Dependent visa or a Remaining Relative visa, however, it would be unreasonable to expect the visa applicant to incur the costs of applying for one of these visas and face the delay in the assessment of such a visa application; and

   ·If allowed to enter Australia, the visa applicant would be supported by her daughter and the review applicant.

6. In light of these circumstances and the fact that the tribunal has found the visa applicant meets the time of application criteria and would have met the time of decision criteria if it were not for the fact that her daughter is no longer the holder of a subclass 300 visa, the tribunal supports the application for Ministerial intervention.

   DECISION

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

   Hugh Sanderson
   Member