1508194 (Migration)
[2016] AATA 4452
•27 September 2016
1508194 (Migration) [2016] AATA 4452 (27 September 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mrs Svetlana Aduk
VISA APPLICANT: Mr Aleksei Krasavin
CASE NUMBER: 1508194
DIBP REFERENCE(S): BCC2014/2282919
MEMBER:Lisa Lo Piccolo
DATE:27 September 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. cl.300.211 of Schedule 2 to the Regulations;
·cl.300.214 of Schedule 2 to the Regulations;
·cl.300.215 of Schedule 2 to the Regulations;
·cl.300.216 of Schedule 2 to the Regulations; and,
·cl.300.221 of Schedule 2 to the Regulations.
Statement made on 27 September 2016 at 2:26pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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).
The visa applicant applied for the visa on 11 September 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.300.211.
The delegate refused to grant the visa on 16 June 2015 on the basis that the visa applicant did not satisfy cl.300.216 or cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant and review applicant intend to live together in a genuine long term relationship. A copy of the delegate’s decision was provided to the Tribunal by the review applicant.
The review applicant (sponsor) appeared before the Tribunal on 26 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant as well as the sponsor’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
The sponsor was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the parties genuinely intend to live together as spouses.
Does the visa applicant intend to marry an eligible person?
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 Tribunal has had regard to a via grant notice dated 21 September 2011. Accordingly, the Tribunal accepts that at the time of application the sponsor was an Australian permanent resident.
The Tribunal has also had regard to a letter dated 28 August 2014 from Mila Churilov, a marriage celebrant. The Tribunal accepts that the parties had engaged a marriage celebrant and were intending to have their marriage legally solemnised in Melbourne on 7 May 2015. Accordingly, the Tribunal finds that the requirements of cl.300.211 are met.
Have the applicants met in person and are they known to each other personally?
Cl. 300.214 requires that at the time of application the parties have met and are known to each other personally. This requires the parties to have come together in each other’s company or physical presence: MIAC v Yucesan (2008) 169 FCR 202.
Based on the documentary evidence provided to the Department of Immigration, and additional documentation received by the Tribunal from the parties, including photographs and travel itineraries, the Tribunal is satisfied the parties have met and were known to each other personally before the visa application was lodged. Accordingly, the Tribunal finds that the requirements of cl.300.214 are met.
Do the parties genuinely intend to marry?
Cl. 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. The Tribunal acknowledges the concerns of the delegate regarding the rapid development of the relationship, and the fact that the visa applicant and the sponsor had only spent a short period together.
The Tribunal accepts the parties’ consistent evidence that the sponsor has visited the visa applicant on 3 occasions: in June 2014, October 2015 and August 2016. In all the parties have spent almost 3 months together over the past two or so years. The Tribunal acknowledges that two of three of the sponsor’s visits have occurred since the delegate’s decision. The Tribunal accepts that the parties have spent considerable time with the visa applicant’s family.
After discussing the delegate’s concerns with the visa applicant and the sponsor, the Tribunal does not share the concerns of the delegate. The Tribunal has also had regard to correspondence from the marriage celebrant as well as the parties’ evidence regarding their wedding plans in Australia. The Tribunal accepts that the parties had made all necessary arrangements with the marriage celebrant to have their marriage legally solemnised in Melbourne as well as to have a church blessing. The Tribunal also accepts the sponsor’s evidence that she has not changed the proposed date of marriage since that time after their first notice of intention to marry expired and the visa was not granted. Reference as made to Russian superstitions. The parties’ consistent evidence is that they intend to marry as soon as they can. They were also both aware of the requirement to marry within 9 months after the visa applicant first enters Australia and the fact that the Department will require a new Notice of Intention to Marry. 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). The proposed date for the marriage is within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met.
Do the parties genuinely intend to live together?
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.
The Tribunal has had regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention.
Financial aspects of the relationship
The Tribunal accepts from the parties consistent oral evidence at hearing submitted that they manage their own financial affairs. The Tribunal also notes from the documentary evidence that the visa applicant has until recently been employed and was receiving a regular income. The sponsor is a self-employed hairdresser. They both gave consistent evidence that they do not need financial support from the other noting that the sponsor has send some gifts to the visa applicant’s mother in Russia. The couple have no joint assets or liabilities at any time. However the Tribunal notes that as the visa applicant is overseas there is no real possibility of joint assets or sharing of daily household expenses at this stage.
Both gave consistent evidence that the visa applicant has a small amount of savings which he would bring to Australia to contribute to their shared household. Both also gave consistent evidence that the visa applicant has always met all expenses during the sponsor’s travel to St Petersburg and Moldova.
The Tribunal places some weight on the financial aspect of the relationship.
Nature of the household
The Tribunal accepts that the sponsor had spent time with the visa applicant in St Petersburg and Moldova. The applicant and sponsor gave consistent evidence of the amount of time that they spent together on each occasion, and the way that they spent their time together. The Tribunal has also had regard to a number of photographs of time spent together in Russia and Moldova.
Both also gave consistent evidence that they shared a household in both Russia and Moldova: first at the home of the sponsor’s sister, then at the visa applicant’s rented house in St Petersburg and then at the sponsor’s mothers’ house in Moldova.
In any case, as the visa applicant and the sponsor are currently unable to have a household, this factor has been given less weight in the consideration.
Social aspects of the relationship
The Tribunal has had regard to the documentary evidence provided to the Department, and the Tribunal, that the parties present themselves as being engaged to marry to each other. The Tribunal has also had regard to the statutory declaration submitted as well as the oral evidence of the sponsor’s daughter. The parties gave consistent evidence that they have undertaken social activities together in the company of the visa applicant’s mother and friends and that in the opinion of their families and friends of the visa applicant they are widely considered the fiancé of each other both at the time of the application and the time of the decision.
The consistent evidence of the parties is that the sponsor did not meet the visa applicant’s brother because he was travelling outside St Petersburg during the sponsor’s trip there in June 2014. The visa applicant’s daughter is 25 years old and living away from home with her partner. She is aware of the relationship and supports her father’s choice but has not met the sponsor since the visa applicant and the sponsor have spent most of their time together in Moldova (outside Russia). The Tribunal does not place any weight on this fact.
The Tribunal acknowledges the evidence of the sponsor’s daughter that she spent time with the visa applicant in June 2014 and is regularly in contact with him via viber and skype. She told the Tribunal she and the visa applicant have a close relationship and she often looks to him for support and guidance. She said her mu is very happy and the visa applicant treats her respectfully and with a lot of love. She says they speak on the phone many times per day and miss each other terribly.
The Tribunal acknowledges that the visa applicant is living and has been living in Moldova for the past 3 months as he is the primary carer of the sponsor’s mother who is disabled and now, bound to a wheelchair. Both gave consistent evidence that they attended the wedding of the sponsor’s nephew in August 2016 and the visa applicant met and spent time with all of the sponsor’s extended family who lived in Moldova or travelled to participate in the wedding. Photographs of the wedding were submitted to the Tribunal.
The Tribunal places significant weight on the social recognition of the relationship.
Nature of the parties’ commitment to one another
The Tribunal is satisfied that the parties’ have met and spent time together. The Tribunal accepts that the parties have maintained regular contact, by telephone and other means since they met, for which there is significant documentary evidence both for the time of application and the time of decision. The Tribunal notes that the sponsor produced her telephone and provided access to her viber account. The Tribunal scanned the history of messages exchanged noting the vast amount of contact the parties have on a daily basis. A number of random messages were read a lot and interpreted. The messages shared daily experiences and feelings of love and care.
The sponsor and the visa applicant were open and honest in their evidence. They openly talked about their families, their lives, their pasts and their future. They talked about the somewhat uncanny way they met and how they developed an emotional attachment to each other and how their relationship has gone from strength to strength. They presented as a couple very committed to having a future together. Both parties showed a genuine level of concern for each other’s welfare, life and future. The Tribunal is satisfied that they demonstrated a knowledge of each other’s lives and plans for the future that are commensurate with a couple who intend to live together as spouses.
The Tribunal has given weight to the relationship that has formed between the visa applicant and the sponsor’s daughter and the genuine concern that the visa applicant showed for her care and welfare. The Tribunal also places weight on his decision to relocate to Moldova to assist the sponsor’s mother during her time of need. This involved resigning from his job and
The Tribunal is also satisfied from the oral and documentary evidence that the parties have plans to marry in Australia as soon as the visa applicant enters Australia.
The Tribunal accepts from the oral evidence that the parties’ see their relationship as long-term and that they both derive a significant degree of companionship and emotional support from each other.
The Tribunal has taken into account the parties’ respective ages, backgrounds and life experience, and accepts that neither party was in a relationship with any third party at the time of the application, or that this is the case at the time of this decision.
Having considered all the evidence, the Tribunal finds that at the time of application the parties did have a genuine intention to live together as spouses, and therefore cl.300.216 is met.
Do the parties continue to meet time of application requirements?
Cl. 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 visa applicant intends to marry an Australian citizen, 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.
The Tribunal finds that the sponsor continues to be an Australian permanent resident at the time of decision, and is satisfied that the visa applicant intends to marry an Australian permanent resident. The Tribunal has had regard to the consistent oral evidence of the parties that their marriage will take place as soon after the visa applicant arrives in Australia as is reasonably practicable. The Tribunal is satisfied that they have a wedding celebrant who has been engaged to perform their marriage ceremony. Therefore cl.300.211 continues to be met at time of decision.
The Tribunal is satisfied that the parties have met and are known to each other personally. The Tribunal is satisfied that cl.300.214 continues to be met at the time of decision.
The Tribunal is also satisfied by oral evidence by the parties at hearing that since the delegate’s decision, they continue to make preparations for their marriage in Australia including arranging a church wedding in addition to the registration. The parties are aware of the requirement that they marry within the visa period and have demonstrated at hearing that they have a shared understanding in this regard.
The Tribunal is satisfied therefore that the parties continue to have a genuine intention to marry and that that marriage is intended to occur within the visa period, and finds that cl.300.215 continues to be met at time of decision.
Based on the evidence discussed above, the Tribunal finds that the parties continue to have a genuine intention to live together as spouses, and finds therefore that cl.300.216 continues to be met at time of decision.
Given the findings above, the Tribunal finds that the visa applicant continues to satisfy
cl.300.211, cl.300.214, cl.300.215 and cl.300.216 at the time of its decision and accordingly, cl. 300.221 is met.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.
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 to the Regulations;
·cl.300.214 of Schedule 2 to the Regulations;
·cl.300.215 of Schedule 2 to the Regulations;
·cl.300.216 of Schedule 2 to the Regulations; and,
·cl.300.221 of Schedule 2 to the Regulations.
Lisa Lo Piccolo
Member
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