1416999 (Migration)

[2015] AATA 3429

1416999 (Migration) [2015] AATA 3429 (21 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Milivoje Kusmuk

VISA APPLICANTS:  Mrs Snezana Stojanovic
Mr Nebojsa Pavlovic

CASE NUMBER:  1416999

DIBP REFERENCE(S):  2013013178

MEMBER:Hannah McGlade

DATE:21 September 2015

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 21 September 2015 at 1:01pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 22 May 2013. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.300.216.

3. The delegate refused to grant the visas on 8 October 2014 on the basis that the first named visa applicant did not satisfy cl.300.215 and cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant and sponsor have a genuine mutually exclusive relationship and have a genuine intention to live together in the future.

4. The review applicant appeared before the Tribunal on 15 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Snezana Stojanovic.  The Tribunal hearing was conducted with the assistance of an interpreter in the Serbian and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The tribunal considers that the issue in the present case is whether the applicant and sponsor genuinely intend to live together.  

   Do the parties genuinely intend to live together?

7. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act; there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). Whilst it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.

8. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings.

9. The review applicant told the tribunal he and the visa applicant began their relationship in 2006 in Sarajevo. They decided to marry each other in about March 2012. They have lived together in his apartment, and they lived together for twenty two months in 2010 – 2011. The visa applicant still lives in his apartment in Sarajevo and he lives in Australia. They planned to marry on the beach at Hillary’s but the visa applicant was refused the visa.

10. The tribunal asked the review applicant why he and the visa applicant, having lived together in a relationship in Sarajevo in the past, had not continued to live together. He said that he his whole family was here. The tribunal clarified what he meant by this and he said his sons (being his adult sons and his grandchildren). The visa applicant when asked why they were not currently living together said the review applicant has sons and grandchildren in Australia and their desire was to live in Australia together. In addition to the family ties, there was also economic situation, being unemployment difficulties in Sarajevo and the opportunity to work and ‘make a decent living’ in Australia.

11. The tribunal notes the department file contains records off Skype calls between the review applicant and visa applicant from January to June 2014.

12. The review applicant said that he saw the visa applicant last October and returned to Australia in the beginning of February (2015). They went visiting many relatives together, attended a party and went to restaurants. The visa applicant also said that she and the review applicant had been together and visited friends, families and restaurants together.

13. The tribunal inquired if the review applicant and visa applicant had any shared finances, noting their claim they had been together and also lived together over a fairly lengthy time. The review applicant said that he was sending the visa applicant money every month as she was now working part-time and not full time. The tribunal notes that the money transfer receipts date back to February of 2015. He said she was working before that time and did not need any money. The visa applicant gave evidence that the review applicant was ‘sending money whenever he can.’ She said it had been just over a year since she left her job and the review applicant has been helping her since, before that she was using the ‘little rent from the house’. When asked if they had ever shared their money she stated that they have a joint bank account but that it is ‘impossible’ to save because of expenses.

14. The review applicant also told the tribunal that in addition to his apartment that the visa applicant lived in, he had a house on the coast that he was looking to sell, a commercial property in Sarajevo (which was rented out until February and is now for sale). This was also the evidence of the visa applicant.

15. The review applicant has provided the tribunal with a number of photographs of himself and the visa applicant together, also with friends and family, in Sarajevo. The department file also contains two images of the review applicant and visa applicant and date stamped 2008. Jaminka Stacey also provided the tribunal with some photos of herself, her husband the review applicant and visa applicant together in Sarajevo in 2010. In her email of 13 September 2015 she states that she can ‘vouch that their relationship is in fact a real relationship and that they have real intentions on living together and continuing their relationship and getting married in Australia if they get a chance to.’

16. Following the hearing the review applicant also provided the tribunal with statutory declarations from the following people:

    Dusko Ivanovic who states he has known the review applicant since 1998 and was introduced to Snezana Stojanovic in Sarajevo in 2012 and is aware they are in a loving relationship, wish to marry and were living together. They are serious about each other.

    Zdenko Stupnikar, who has been a friend of the review applicant since 2000 and who also met the visa applicant on holiday in Sarajevo in 2013. They are a very strong couple.

    Sanja Stupnikar declared that she supports the review applicant and his partner the visa applicant and she has met the visa applicant in Sarajevo and they seemed happy together.

    Jasminka Stacey is a cousin to the review applicant and has also known the visa applicant for twenty years. She went to Sarajevo in 2010. They have her support.

    John Stacey writes that the review applicant is his wife’s cousin and he has been to Sarajevo in 2010 and stayed with him and the visa applicant. They are a loving couple in a happy stable relationship.

    Andrej Kusmuk writes that the review applicant, his father, is in a true and real relationship with the visa applicant. His motives are ‘pure and simple, love’.

    Rudolph Ozanic writes that he gives strong support to the review applicant and the visa applicant who plan to live together in Australia.

17. The tribunal also received an email following the hearing from Nebojsa Pavlovic (the dependent visa applicant) who writes that the review applicant is his step-father and he has lived with him and his mother since his early childhood. He was very caring like a real father and he supports their intention to live together.

18. The review applicant has previously provided a list of people and their phone numbers stating that they can confirm that he and the visa applicant are ‘de facto partners for more than eight years.’ These appear to be different persons to those who provided declaration after the hearing. The tribunal notes that the department file also contains statutory declarations (Form 888) from Aleksanda Kusmuk, the review applicant’s son, who states that the relationship has been ongoing since 2006. Also from John Tracy who states that he spent three months in Sarajevo with the review applicant and visa applicant and their relationship is sound. There is also a letter from Reverend Sasa Stojanovic (not related to the visa applicant) who writes that he has known the review applicant since 2009 as a church parishioner, he thinks he is an honest person ‘Who always looks to help someone’. He personally believes the relationship ‘is real and there is no space for any suspicious.’ The review applicant is an honest person who would never do anything against the church law or the law of the Australian government (16 February 2013).

19. Following the hearing the tribunal received further statutory declarations from more people. These are as follows:

    Radoslav Majstorovic declares that he knows the review applicant from 2001 and the tribunal should give the visa applicant the visa as soon as possible. Other comments are not legible.

    Vitomir Ivanoovic declares the relationship is true and stable to the best of his knowledge.

    Emira IhKellyst declares they are a very good couple, she/he gives their word for him and she/he has known the review applicant since 2002 and has met his partner the visa applicant in 2002.

    Sabahydin IhKellystn declares he/she has known the review applicant since 2002 and met his partner in 2009 they are a very good couple who have a strong relationship.

    Ljilana Ozanic declares that she has known the review applicant for about 15 years and declares he is in a true relationship with the visa applicant.

    The tribunal notes the declarations were handwritten and the writing was not always legible. No formal identification was attached and the declarant’s names were difficult to decipher.

20. At the hearing the tribunal provided the review applicant with information in accordance with the Section 359AA procedure. The information concerned an anonymous allegation contained in the department file and dated August 2013 by a person who identified the review applicant, including by his date of birth, and informed the department that the review applicant has advised people in the European community that the relationship with Snezana Stojanovic is false and for the purposes of assisting Snezana Stojanovic to migrate Australia. Also, that they will divorce after she obtains Australian citizenship. The tribunal explained the relevance and possible consequence of the information. The review applicant elected to respond immediately. He said that he wants very much to live with the visa applicant in Australia and what has been said is a lie. He is very surprised and insulted that someone would do that to him.

21. Following the hearing, the tribunal also wrote the review applicant in two separated letters and under the Section 359A procedure.

22. The review applicant was also advised of a further second anonymous allegation made to the department on 4 August 2014 by a person who reported that the review applicant and visa applicant’s relationship was false and for the purpose of the visa applicant migrating to Australia and being able to claim Centrelink. The review applicant was advised of the possible relevance and consequence of the information.

23. The tribunal also wrote to the review applicant about information he supplied to the tribunal in the ‘Request for a fee reduction’ made by him on 19 October 2014. He was invited to comment on the information he provided, being that he had one bank account with a nil balance and that he owned no assets. On the basis of this information the tribunal granted him a reduced tribunal fee. The tribunal advised him that at the hearing he provided his bank statements showing he held four separate bank accounts with two different banks and one savings account for the period 7 August 2014 to 7 November 2011 had a balance of $4,989.99. He had also given oral evidence at the hearing that he owned an apartment in Sarajevo, a house on the coast that he rents and a restaurant that he has been renting until February this year. The review applicant was advised of the possible relevance and consequence of the tribunal relying on the information.

24. The review applicant’s written response to this information was that he was unwell at the hearing, in pain and on antibiotic medication. Also ‘Due to my state at the time I didn’t read the documents, I just handed them over to you.’ In regards to the assets in Sarajevo, the review applicant stated that he did not consider those assets ‘to be on the same level as Australian standards.’ The properties have debt and damage. He wants to sell everything in Sarajevo and organise his life in Australia.

25. The tribunal has considered the review applicant’s response to the Section 359A letter and regarding the claims he made in the ‘Request for a fee reduction’ on 19 October 2014. The response does not, in the tribunal’s view, satisfactorily address the fact that the visa applicant made false claims in the written request for a fee reduction. This is very apparent from the bank statements which indicate four separate accounts with two banks and one account holding a balance of $4,989.99 at the relevant time. The tribunal finds that he has three other bank accounts that he did not declare when asked to ‘list all amounts held in bank accounts or with other financial institutions including details of any joint accounts held jointly with another person.’ The tribunal notes that the fee reduction form request information concerning rent received from investment properties to which the review applicant declared no rent was received, however, this is in contrast to his oral evidence that he was renting a house on the coast in Sarajevo and had been renting a restaurant until February of 2015.  The review applicant also signed a declaration that the information was true notwithstanding the warning provided that it is an offence to knowingly make false representations or statements to obtain a benefit or advantage from the Commonwealth. 

26. The tribunal finds on the evidence concerning the ‘Request for a fee reduction’ of 19 October 2014 that the review applicant is not a credible witness and that he is prepared to and has made false claims to the tribunal. His response to the Section 359A letter was that he gave the information concerning his finances when he was unwell. This explanation does little to explain his actions, other than to indicate that if he was well he may not have subsequently provided the correct information and would have continued his deception to the tribunal.

27. The tribunal has also considered the two separate anonymous allegations that the review applicant was advised of under the Section 359AA and Section 359A procedure and his responses. These are that the review applicant and visa applicant are not in a genuine relationship and the visa application is solely for the purpose of assisting the visa applicant to migrate to Australia. The review applicant rejects these claims and has provided a number of declarations from other persons who consider the relationship genuine. The tribunal finds that the review applicant is not credible, being a person who made false claims to gain a financial benefit to himself. He did so even though he was warned that it would be an offence to knowingly make false statements. The tribunal finds his conduct in doing so is fairly consistent with his claimed conduct according to two separate anonymous allegations, being that he and Snezana Stojanovic contrived a relationship for migration only purposes and financial gain. As such, the tribunal gives some weight to these anonymous allegations.

28. The tribunal has closely considered the evidence of many people who have provided statutory declaration attesting to the genuine relationship of the review applicant and visa applicant. There have been quite a few people prepared to attest to the relationship, however, the tribunal is not satisfied on the basis of this evidence (either alone or combined with other evidence) that the parties have a genuine intention to live together in future as spouses. The tribunal has considered the evidence of the parties that they have a long standing relationship, that the review applicant has been letting the visa applicant live in his apartment and has since 2015 been sending her money, that they have lived together in the past with the support of the visa applicant’s son and they plan to marry and live together in Australia in a genuine spouse relationship. The tribunal finds the applicant is not credible and it is not satisfied that this evidence is credible evidence.

29. Having considered and weighed up the evidence in its entirety the tribunal is not satisfied that the review applicant and visa applicant genuinely intend to live together as spouses.

30. The tribunal finds that at the time of application the parties did not have a genuine intention to live together as spouses and therefore cl.300.216 is not met.

31. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

32. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    Dr Hannah McGlade
    Member