1506470 (Migration)

[2016] AATA 4736

1506470 (Migration) [2016] AATA 4736 (24 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dragan Zecevic

VISA APPLICANT:  Ms Ana Markovic

CASE NUMBER:  1506470

DIBP REFERENCE(S):  OSF2014/011965

MEMBER:Mary Cameron

DATE:24 November 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.211 of Schedule 2;

·cl.300.212 of Schedule 2;

·cl.300.213 of Schedule 2;

·cl.300.214 of Schedule 2;

·cl.300.215 of Schedule 2;

·cl.300.216 of Schedule 2;

·cl.300.221 of Schedule 2; and

·cl.300.221A of Schedule 2 to the Regulations.

Statement made on 24 November 2016 at 5:46pm

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 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 June 2014. 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.300.215, cl.300.216 and cl.300.221 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on 12 March 2015 on the basis that the visa applicant did not satisfy cl.300.215, cl.300.216 and cl.300.221 of Schedule 2 to the Regulations because the delegate found that the applicant and sponsor did not genuinely intend to marry to marry or to live together as spouses at the time of the visa application (cl.300.215 and cl.300.216), and consequently that they did not satisfy cl.300.221 at the time of the delegate’s decision.

4. The review applicant appeared before the Tribunal on 30 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Ms Ana Markovic by telephone and from Ms Mileva Zecevic. The Tribunal hearing was conducted with the assistance of an interpreter in the Serbian and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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 the visa applicant and the review applicant genuinely intend to marry and to live together as spouses.

8. The evidence provided in support of the visa application consists of a number of identity documents of the review applicant and of the visa applicant; the review applicant’s statement in support of the visa application; supporting Form 888 witness statements from the review applicant’s father and mother; a Notice of Intention to Mary issued by the Parish of the Holy Trinity Orthodox Church in Melbourne; telephone records of the review applicant; copies of numerous Western Union money transfer records and photographs of the review applicant and the visa applicant together in Montenegro, and in the company of other people.

9. The application was refused on 11 March 2015 because the delegate considered the evidence insufficient to demonstrate that the parties genuinely intended to marry and live together as spouses. The delegate was concerned by the limited time the couple spent together before making a commitment to one another, by the generally limited evidence of their relationship, and by inconsistencies in the parties’ evidence.

10. In support of the review application the review applicant provided a submission addressing the delegate’s expressed concerns and attesting to the genuine nature of the relationship between the parties. He also provided a large number of additional photographs; extensive records of financial transfers; statements of the visa applicant, the review applicant, the visa applicant’s sister and her mother; extensive telephone and Facebook records attesting to the parties’ ongoing communication between mid 2014 and early 2016, and evidence of the review applicant’s travel to Montenegro in September/October 2013, and again to Serbia and Montenegro in March 2016.

11. The review applicant in the present case is a forty five year old Australian citizen living in Rosanna, Victoria with his parents. The visa applicant is a thirty four year old national of Montenegro living in Podgorica.

12. According to the parties’ written submissions the delegate had not taken into account all of the available evidence to support the application, and that since the primary decision was made a significant amount of new evidence has been provided.

13. The parties submission is that they are in a committed and ongoing prospective spouse relationship in which they provide continuing support for each other and have done for several years. They support one another emotionally and the review applicant provides for the visa applicant financially by sending money overseas by means of Western Union money transfers. Although the couple are in a long-distance relationship they are fully committed to each other and make contact on a daily basis by telephone and Facebook when they cannot be together physically in Montenegro. They were engaged on 4 October 2013 and their closest relatives were present to celebrate. They have provided numerous photographs taken during the engagement ceremony. Their relationship has continued and the review applicant returned to Montenegro to spend time with the visa applicant during 2016, and they provided photographs taken during this period.

14. In regard to the financial aspects of the relationship, while in Montenegro the review applicant paid all the expenses of daily living for the couple including paying for groceries, meals, travelling expenses, shopping and accommodation. He considers himself to be in a better financial position than the visa applicant and did not want her to pay for anything. When he left Montenegro he began making payments to the applicant to support her financially and has provided detailed records of these transfers. They have not yet opened any joint bank accounts as the visa resides in Montenegro but they plan to open a joint account once she arrives in Australia.

15. In regard to the nature of the household, the parties are in a long-distance relationship and are fully committed to each other although they do not presently live together. When the review applicant was financially able to return to Montenegro for his second visit on 21 September 2013 the couple was able to live together as domestic partners. During this period they went out together and the review applicant assisted the visa applicant with her household responsibilities in her apartment.

16. In regard to the social aspects of the relationship the parties’ submission is that their relationship has been recognised by their community, their relatives, their family and friends, despite the long-distance relationship between them. This is attested to by the witness statements of their respective family members and by photographs taken during the periods when the review applicant and the visa applicant have been together in Serbia and Montenegro. When the review applicant was in Montenegro the couple frequently spent time together visiting family and friends, socialising and going shopping together. This is illustrated by numerous photos provided.

17. They made plans together to meet one another again in Serbia in 2016. The review applicant purchased flight tickets to Belgrade and has provided evidence of his flight schedules for his travel in September 2016 and those of the visa applicant for her travel between Montenegro and Belgrade at that time. They rented an apartment together. They did not have any family or friends with them during this period because they wanted to spend quality time with each other.

18. The parties’ submission is that they plan to marry and live together in Australia, initially staying at the review applicant’s family home. They plan to work and to save money. The review applicant is currently attending work preparation courses and wishes to work in order to support his family. The visa applicant plans to improve her English and to find employment.

19. The statements of the review applicant and visa applicant accompanying their submission are that they met in September 2011 when the review applicant was visiting Montenegro with his family. Their respective families have known one another for a long time, since prior to the review applicant’s parents departing for Australia. They were attracted to one another and enjoyed one another’s company. They therefore kept in contact after the review applicant returned to Australia, and their relationship became closer as they communicated by telephone and internet. They formed a strong bond, and the review applicant decided to return to Montenegro in 2013 so that they could spend more time together and plan their future. The review applicant returned to Montenegro in March 2013 and the couple lived together, visiting family and friends and celebrating their engagement with the visa applicant’s family. Their families approve of the relationship and the couple has planned their future life including their intention to marry and to have children together. They are committed to a shared future.

20. The statements of the visa applicant’s mother Ruzica Marcovic and her sister Dejana Miutinovic are consistent with the statements of the review applicant and the visa regarding the background to the couple’s relationship and their shared commitment to their relationship.

21. At the Tribunal hearing the review applicant confirmed that he was born in August 1969 in Melbourne soon after his parents migrated to Australia from Serbia and Montenegro in the early 1960’s. He lives, as he always has, with his parents in Rosanna.

22. The review told the Tribunal that he is currently unemployed that has just completed a certificate in business administration and is looking for work. He is also occupied in a role as a volunteer radio presenter with a Melbourne radio station. He told the Tribunal that he first met the visa applicant on 21 September 2011 among a group of friends and relatives when he was with his parents in Montenegro. Their parents are old friends and the family connection was there. The friendship developed between them and they went out together to some local restaurants and with other friends. The review applicant returned to Australia after two or three weeks and the couple stayed in contact by various means. The review wanted to spend more time with the visa applicant and tried to bring her to Australia as a visitor but the visa application was not granted. After staying in close contact for some time the couple developed an affection for each other and the review applicant returned to Montenegro in September 2013 when they lived together as a couple and were engaged.

23. The review applicant’s evidence is that he and the visa applicant had come to love one another, and they celebrated their engagement on 4 October 2013 witnessed by some friends who the review applicant named. The review applicant returned to Australia soon after. In response to the Tribunal’s question of why he had come back so soon after his engagement, the review applicant explained that he felt it better to follow up the visa application in Australia. At the time he also had some casual work with a mobile DJ service and needed to return to work.

24. The review applicant told the Tribunal that he returned again, on this occasion to Belgrade, on 28 March 2016 and stayed there with the visa applicant until 13 April 2016. He told the Tribunal that it was a fairly short trip because it was expensive. They lived together in an apartment in Belgrade where they visited tourist attractions together including the zoo, parklands, and went shopping.

25. The review applicant gave evidence in respect of the parties’ commitment to one another. He told the Tribunal that the relationship is strong and committed that he very much wants to marry the visa applicant and start a family. He stated that he and the visa applicant have a great understanding and a shared sense of humour. He stated that the visa is very organised and he believes that she will be a very good mother.

26. In regard to the social aspects of the relationship the review applicant told the Tribunal that his closest friends are people from the radio station where he volunteered, and also from a previous business where he worked and from his football club. The visa applicant has several close friends including the people witnessed the couple’s engagement.

27. The review applicant told the Tribunal that the visa applicant does not presently work although she is a hairdresser by trade. He explained that it is difficult to get work in Montenegro and he provides for her. She lives in a house which was left to her and her brother, and her mother lives in the same village. In regard to their financial plans for the future the review applicant is confident he will find employment and he is currently looking for work. He and the visa applicant will continue to live with his parents for a period of time after the visa applicant arrives in Australia. This will enable them to establish a household together and save money.

28. The review applicant gave evidence about his interests including his voluntary work and described to the Tribunal how the visa applicant spends her days, including walking her dog, reading and spending time with family members.

29. The review applicant told the Tribunal that he and the visa applicant plan to marry the Serbian Orthodox Church in Brunswick. They will make detailed plans once the visa outcome is known.

30. The Tribunal heard evidence from the visa applicant which was consistent in its detail with that of the review applicant in relation to the inception and development of their relationship, the periods of time they have spent together, their engagement, their financial arrangements and future financial plans, and their intention to marry and start a family.

31. The visa applicant also provided evidence consistent with that of the review applicant that they will live together with the review applicant’s parents in Australia in order to establish themselves after her arrival.

32. The Tribunal heard evidence from the review applicant’s mother Mileva Zecevic, who told the Tribunal that she and her husband very much support the relationship between the review applicant and the visa applicant. They consider the visa applicant to be a suitable partner for their son. She told the Tribunal that the review applicant and the visa applicant are very close and have been in constant contact for several years. Mrs Zecevic told the Tribunal that her son is withdrawn and sensitive and is precise in his behaviour. He does not smoke and does not drink. She told the Tribunal that she and her husband have known the visa applicant and her parents for a long time, although they had not seen them for many years after their migration to Australia.

33. Mrs Zecevic gave evidence consistent with that of the review applicant and the visa applicant that the couple intends to live in her home when the visa applicant arrives in Australia and that she and her husband will be able to accommodate them, even if they start a family as they plan to, and that she and her husband are also happy to assist them  financially. Although there are no guarantees, she believes that the couple will have a successful marriage.

    Does the visa applicant intend to marry an eligible person?

34. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The parties in the present case have provided consistent evidence of their intention to marry. Their evidence in this respect is supported by the statements of their respective parents. There is a Notice of Intended Marriage contained on the Department’s file (f.42). Although the intended date of marriage recorded therein has passed, the Tribunal accepts that their intention was and is genuine. The Tribunal accepts based on the evidence before it that the review applicant and the visa applicant intend to marry to have their marriage registered in Australia.

35. Accordingly, the Tribunal finds that the visa applicant intends to marry the review applicant, who is an Australian citizen. A copy of his Australian Birth Certificate is contained on the Departmental file (f.25).The Tribunal finds that the requirements of cl.300.211 of Schedule 2 are met.

36. Clause 300.212 requires that at the time of application the review applicant is not prohibited from being a sponsor in certain circumstances. On the evidence before it, the Tribunal finds that the review applicant is not prohibited from being a sponsor, and therefore cl.300.212 of Schedule 2 to the Regulations is met.

37. Clause 300.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where the review applicant has not turned 18, by the review applicant's parent or guardian who has turned 18 and is either an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The Tribunal accepts that the review applicant is an Australian citizen who is over 18 years of age. On the evidence before it the Tribunal finds that the requirements of cl.300.213 are met.

38. Clause 300.214 requires that at the time of application the parties have met and are known to each other personally. There are before the Tribunal numerous photographs of the review applicant and the visa applicant together in Serbia and Montenegro. The parties have given detailed and consistent evidence and provided witness statements attesting to the genuine nature of their relationship. This evidence is consistent with travel records contained on the Tribunal file. The Tribunal accepts that the parties met each other in person in Montenegro in 2011, and subsequently spent time together in Serbia and Montenegro in 2013 and 2016, and that they have developed and maintained a relationship over a period of some five years. The Tribunal finds that at the time of application on 30 June 2014 the parties had met and were known to each other personally. Accordingly, the Tribunal finds that the requirements of cl.300.214 are met.

39. Clause 300.215 requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period. As indicated above, the Tribunal accepts that the applicants genuinely intend to marry. It accepts the review applicant's evidence that they intend to marry within the visa period. The Tribunal finds that at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a).Therefore, the Tribunal is satisfied that the requirements of cl.300.215 are met.

40. 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 spouses contained in the legislation may assist in determining the parties’ aspirations.

1. 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.

2. The delegate was concerned about the limited nature of the evidence provided in support of the visa application and in the course of the parties’ interviews at the primary stage. The delegate also expressed concern about some inconsistent details in the parties’ evidence

3. However during the course of the review the Tribunal has had the benefit of substantially more evidence than was available to the delegate at the time of the primary decision, including evidence about the shared personal history of the parties’ families prior to their introduction and also in regard to the continuing relationship between the parties since the primary application was refused some eighteen months ago, including the review applicant’s return travel to Belgrade to spend time with the visa applicant in 2016.

4. The Tribunal has also had the benefit of hearing the detailed and consistent oral evidence of the review applicant and that of the visa applicant regarding the inception and development of their relationship, and their ongoing commitment to one another, and their plans for the future. Their evidence has been supported by the evidence of the review applicant’s mother at the Tribunal hearing, by his father’s statement, and by the statements of the visa applicant’s mother and sister.

5. The Tribunal shares, to some extent, the delegate’s expressed concern regarding the relatively limited evidence of the couple’s social recognition. However the Tribunal notes and accepts the evidence of the review applicant’s mother that he is quite withdrawn and sensitive, and his own evidence indicates that he has a limited circle of friends. The couple has spent all of their time together in Serbia and Montenegro where the review applicant has never lived, and they have provided consistent evidence about visiting friends of the visa applicant and family members together during those periods. There are photographs before the Tribunal of the couple engaging in various social activities. They have provided consistent evidence that their engagement ceremony was witnessed by friends of the visa applicant. It is clear that their relationship is recognised and supported by their families.

6. Based on the evidence before it the Tribunal accepts that the visa applicant’s family in Montenegro and the review applicant’s family in Australia accept and support the parties’ intended marriage.  It also accepts that the review applicant and the visa applicant spent time together on a daily basis when the review applicant was in Serbia and Montenegro in 2013 and 2016.

7. The Tribunal considers that the review applicant has provided generally credible evidence regarding his relationship with the visa applicant, their intention to marry and the parties’ ongoing commitment to one another.

8. There is evidence before the Tribunal of a large number financial remittances from the review applicant to the visa applicant over a period of several years and the Tribunal accepts that the review applicant has sent financial support amounting to several thousand dollars to the visa applicant, and has also spent a significant sum travelling to Serbia and Montenegro twice to spend time with her there. However the Tribunal also considers that it is difficult for the parties to plan any joint financial arrangements or the establishment of a household when one party is residing outside Australia. The review applicant and the visa applicant have provided consistent oral evidence regarding their mutual intention to combine their finances and to share a household in the future.

9. In relation to the nature of the persons’ commitment to each other, the Tribunal has had the benefit of a considerable amount of evidence that was not before the delegate at the time of the primary decision and including the generally consistent oral evidence of the review applicant and the visa applicant regarding their relationship in the approximately five years since they were first introduced in 2011.

10. The evidence indicates that the parties are committed to one another as prospective spouses. They have known one another since being introduced in Montenegro in 2011 and they spent several weeks together in Montenegro in September and October 2013, and were engaged on 4 October 2013 in the presence of several relatives and friends of the visa applicant. They have been in regular telephone and internet contact since that time, and the review applicant returned to Serbia and Montenegro in March 2016 to spend time with the visa applicant. As noted the Tribunal has before it numerous photographs of the parties together, and with family members of the visa applicant and other people.

11. A consideration of the evidence as a whole suggests, on balance, that the review applicant and the visa applicant have a genuine commitment to one another as prospective spouses.

12. The Tribunal gives the evidence provided by the parties subsequent to the delegate’s decision significant weight in considering the nature of the parties’ future intentions.  The Tribunal is satisfied on the evidence presently before it that at the time of application the review applicant and the visa applicant genuinely intended to live together as spouses. Accordingly the Tribunal finds that the visa applicant satisfies clause 300.216.

13. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, that the visa applicant intends to marry an Australian citizen, Australian permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses.

14. On the basis of all of the evidence, the Tribunal is satisfied that the visa applicant and review applicant genuinely intend to live together as spouses at the time of decision, in that they intend to be validly married, they have a mutual commitment to a shared life as husband and wife, they intend to form a relationship which is genuine and continuing and they intend to live together. Accordingly the visa applicant satisfies clause 300.221.

15. Subclause 300.221A requires that at the time of decision there is no impediment to the proposed marriage between the parties. There is no evidence before the Tribunal that would suggest the proposed marriage between the visa applicant and review applicant would be invalid under Australian law.

    CONCLUSIONS

16. Given these findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 300 visa. If the visa applicant is found to meet the remaining criteria, then the visa applicant is entitled to the grant of a Subclass 300 visa.

    DECISION

17. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300. 211 of Schedule 2;

    ·cl.300.212 of Schedule 2;

    ·cl.300.213 of Schedule 2;

    ·cl.300.214 of Schedule 2;

    ·cl.300.215 of Schedule 2;

    ·cl.300.216 of Schedule 2;

    ·cl.300.221 of Schedule 2; and

    ·cl.300.221A of Schedule 2 to the Regulations.

    Mary Cameron
    Member