1415895 (Migration)

[2016] AATA 3439

1415895 (Migration) [2016] AATA 3439 (1 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Michail Kanakis

CASE NUMBER:  1415895

DIBP REFERENCE(S):  BCC2014/2101938

MEMBER:Tim Connellan

DATE:1 March 2016

PLACE OF DECISION:  Melbourne

DECISION: The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

·cl.572.314(3) of Schedule 2 to the Regulations.

Statement made on 01 March 2016 at 4:22pm

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 10 September 2014 to refuse to grant the visa applicant Mr Michail Kanakis a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).

2. The Mr Kanakis applied for the visa on 22 August 2014. The delegate refused to grant the visa on the basis that he did not satisfy cl.572.314.

3. The Tribunal received an application to review the decision on 22 September 2014. The application was accompanied by a copy of the primary decision.

4. Mr Kanakis appeared before the Tribunal on 1 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

5. Mr Kanakis was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether Mr Kanakis satisfies clause 572.314 of the regulations.

   Background

8. Mr Kanakis told the Tribunal that he and his partner Ms Maria Tounta had come to Australia together on separate student visas in July 2013.

9. Mr Kanakis’s student visa was granted 20 June 2013 and was current until 15 September 2014. Ms Tounta’s visa had also been granted on 20 June 2013 but was for a longer period because of her intended studies.

10. On 22 August 2014, Mr Kanakis applied for a further student visa as a dependent on Ms Tounta’s student visa.

11. The application was refused because the delegate found Mr Kanakis could not satisfy clause 572.314.

12. Mr Kanakis told the Tribunal that he had met Ms Tounta in January 2011 through mutual friends and their relationship developed from that time.

13. In May 2011 they decided to live together and he initially moved into her home for a couple of months before they moved and lived together in a home that belonged to his family. They occupied this home by themselves until they came to Australia in June 2013.

14. He told the Tribunal that their relationship had been very close and was accepted by both  their families and friends who saw them as a committed couple.

15. Evidence was presented that after arriving in Australia they jointly leased property and established bank accounts in joint names.

16. Financial evidence included copies of statements of joint bank accounts with both the Bank of Melbourne, and the Commonwealth Bank.

17. In reviewing this financial evidence, the Bank of Melbourne account showed weekly deposits of $433 and monthly deposits in excess of $6000. When questioned about these payments, Mr Kanakis stated that the $433 were payments received by Ms Tounta for working in a restaurant. He said the larger payments were monies he received for a contract he had cleaning train stations.

18. When the Tribunal looked at the Commonwealth Bank statements, it noted that there were monthly payments often in excess of $5000 made with the notation “Platform Cleaning Maria Tounta”. When the Tribunal questioned Mr Kanakis, he said he had been able to arrange for her to work for the same company.

19. When the Tribunal questioned how such a large income could be earned by the holders of visas who were restricted to no more than 40 hours work in a fortnight, he responded that Ms Tounta was very good job and could clean a railway station in 15 minutes.

20. The Tribunal told Mr Kanakis it believed it was implausible that a couple could earn in excess of $120,000 a year working part-time cleaning railway stations however recognised it was not relevant to the review at hand.

21. Evidence was provided of utility bills in joint names.

22. In considering whether and at what stage they had been in a de facto relationship, the Tribunal has considered s.5CB of the Act and the issues in r.1.09 of the migration regulations.

23. The Tribunal is satisfied that Mr Kanakis and Ms Tounta lived together and shared financial arrangements that would satisfy the definition of being in a de facto relationship as well as socially being recognised as being in a de facto relationship.

24. Evidence was provided that Ms Tounta had previously been in a married relationship which ended in divorce on 30 July 2014.

25. Section 5CB(2)(a) of the Act requires that to be in a de facto relationship, they have a mutual commitment to a shared life to the exclusion of all others.

26. The Tribunal accepts that while they were in a close relationship, Ms Tounta was married to another person until 30 July 2014.

27. The Tribunal is of the view that her having been married undermines the element of their relationship meeting the definition of excluding all others.   

28. The Tribunal therefore finds that they were not in an exclusive relationship and that their de facto relationship did not commence until after Ms Tounta was divorced on 30 July 2014.

29. The Tribunal finds that Mr Kanakis satisfied the definition of being in a de facto relationship and therefore became a member of the family unit of Ms Tounta, the primary visa holder when her divorce was granted on 30 July 2014.

30. As Mr Kanakis became a member of her family unit after the grant of Ms Tounta’s student visa on 20 June 2013 and before the application was made on 20 to August 2014, the Tribunal therefore finds that Mr Kanakis meets the requirements of  cl.572.314(3)

    Conclusion

31. As the Tribunal has found Mr Kanakis meets the requirement of cl.572.314(3), it will remit the matter to the delegate for reconsideration.

    Decision

32. The Tribunal remits the application for Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

    ·cl.572.314(3) of Schedule 2 to the Regulations.

    Tim Connellan
    Member