1512424 (Migration)

[2016] AATA 4411

1512424 (Migration) [2016] AATA 4411 (16 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tome Mitkovski

VISA APPLICANT:  Mrs Slavica Stojanovska

CASE NUMBER:  1512424

DIBP REFERENCE(S):  OSF2015/038022

MEMBER:Jennifer Watts

DATE:16 September 2016

PLACE OF DECISION:  Sydney

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.300.215 of Schedule 2 to the Regulations

·cl.300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 16 September 2016 at 2:06pm

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 27 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 whether the parties genuinely intend to marry and live together as spouses.

3. The delegate refused to grant the visa on 6 July 2015 on the basis that the visa applicant did not satisfy clauses 300.215 and 300.216 of Schedule 2 to the Regulations because the parties did not genuinely intend to marry or genuinely intend to live together as spouses.

4. The review applicant appeared before the Tribunal on 29 August 2016, however no interpreter was available, and the hearing was adjourned.  The review applicant attended a resumed hearing on 15 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Slavica Stojanovska, Menka Kotevski and Liljana Treneska.

5. The review applicant 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 the parties satisfy clauses 300.215 and 300.216 of Schedule 2 to the Regulations, and that they genuinely intend to live together as spouses having regard to the definition of spouse in s.5F of the Act.

8. The visa applicant is a 53 year old citizen of Macedonia who was divorced on 7 August 2013.  She has three adult children who are not included in the application, two live in Macedonia and one lives in Germany.  The review applicant, the sponsor, is a 52 year old Australian citizen with two sons from a former marriage which ended in divorce on 8 September 2006.  He lives in Panania with his son Aleksandar Mitkovski.

9. The visa applicant and her mother travelled to Australia on 30 March 2013 for a three month holiday and planned to stay with the visa applicant’s sisters in Botany and Harrington Park.  They had plans to attend a family Christening in Sydney and also celebrate the 80^th birthday of their mother with the family in Australia.

10. The parties met on 13 April 2013, shortly after the visa applicant arrived, through her sister, whose husband was a long-time friend of the review applicant – the families had been next door neighbours in the same village in Macedonia, Velusina.  Evidence was given, and is accepted, that the review applicant regularly visited the home of Menka and Mirko Kotevski before he met the visa applicant for the first time, and it was on one of these occasions when he dropped over for coffee during April 2013 that the parties say they met.  The Tribunal accepts that he continues to socialise with Menka and Mirko Kotevski.

11. The parties became engaged on 5 May 2013 in Australia at a gathering at the home of the visa applicant’s sister, Menka Kotevski, and Menka’s husband, Mirko, to celebrate Orthodox Easter. The parties had been dating since meeting in April and the review applicant proposed marriage at the family Easter lunch in the presence of all in attendance, many of whom have provided statutory declarations in support of the relationship being genuine.  Photos have been provided of the newly engaged couple at the home of the visa applicant’s sister on the day they became engaged.  Oral evidence was given that the person who took the photo of the parties with their rings and flowers was taken by Menka’s son at her home.

12. The review applicant gave evidence at the hearing that he purchased two rings, one for himself and one for his fiancé, and he provided a receipt from Angus & Coote as evidence.  He was wearing his ring at the hearing, which was shown to the Tribunal, and his fiancé gave evidence by phone from Macedonia that she was also wearing hers and said “…and I’m not taking it off”.  The parties were asked to describe the ring and gave consistent evidence.

13. The review applicant was asked how he managed to buy a ring for the visa applicant that fitted her.  He said that he had been sneakily trying out her rings before he went shopping so he would know the right size to buy and so it would be a surprise.  The Tribunal accepts this evidence from the review applicant.  The Tribunal is satisfied that if the review applicant was in a position to have access to the visa applicant’s jewellery before the marriage proposal that they must have been in close company prior to the marriage proposal at the Easter lunch.

14. The parties returned together to the home of the review applicant on the night of 5 May 2013, having formalised their engagement that day in front of the family of the visa applicant and long-time friends of the review applicant, and spent much of the rest of the time together that the visa applicant was in Australia.  Aleksandar Mitkovski, the review applicant’s son who lives with him, provided a statutory declaration dated 25 August 2016 confirming this.  He also says that he hopes one day that Slavica will be able to come and spend all her time with them.  The Tribunal gives weight to the information provided by the review applicant’s son in his statement.

15. The visa applicant was still married to her husband in Macedonia at the time she travelled to Australia in March 2013.  When she returned to Macedonia, she divorced him in the same year and has provided a certified certificate of single marital status issued by the Republic of Macedonia, dated 16 October 2014, at the time of application.  Menka and Liljana, the sisters of the visa applicant, state in their 2016 statutory declarations that their sister had not resided with her husband since 2009, when she left him and took her sons to live with her mother.  The mother of the visa applicant confirmed this in her statutory declaration dated 22 August 2016.  The Tribunal accepts the evidence of these women.  Both sisters gave oral evidence at the hearing.  They gave spontaneous and unaffected answers and therefore were considered to be credible witnesses.

16. The parties gave oral evidence at the hearing that the visa applicant, who lives in Macedonia, socialises with her fiancé’s  brother and his family, who live in the same city.  The visa applicant provided a satisfactory amount of detail of the brother’s family for the Tribunal to form a view that she knows them well.  The review applicant’s brother, Rade Mitkovski, made a statutory declaration dated 23 August 2016 which was provided to the Tribunal stating that he knows the visa applicant and supports the relationship with his brother.

17. The parties currently do not have any shared financial commitments, assets or liabilities.  They live in different countries and the Tribunal places no weight on this.  The review applicant occasionally sends modest amounts of money to his fiancé when he can and evidence was provided in the form of a few remittals through Western Union.

18. Photographs were provided of the parties with the visa applicant’s family when she was here in 2013, including her two sisters, their husbands and her mother.  As these people are not only the relatives of the visa applicant, but also long-time friends of the review applicant, the Tribunal accepts that their relationship is openly declared as one of an engaged couple who intend to marry to friends and family at the time of application and time of decision.

19. A concern the Tribunal did have is that the parties have not met personally again since 2013.  They were both asked about this, as were the two witnesses who gave oral evidence at the hearing.  There were a variety of reasons given.  The review applicant states that he earns around $80,000 a year, which the Tribunal estimates is about $$5,000 net per calendar month and that he could not afford to go.  His outgoings, including rent, car loan repayments and running costs, on his evidence, are about $3,200 per month.  The remaining $1,800 a month, the Tribunal reckons, would cover such things as food, clothing, entertainment and incidental day to day living costs.  He has also occasionally sent money to his fiancé, prioritising this over travelling to Macedonia himself.  Most recently to given her some extra cash while her daughter and grand-daughter were visiting from Germany.  

20. The Tribunal accepts the review applicant’s explanation that he did not think the process of the application would take this long and that it has been expensive.

21. The parties say they stay in contact by phone, with messenger on Skype.  The Tribunal accepts this.  They were able to given detailed information about the day to day events in each other’s lives and the Tribunal accepts that they talk frequently and in detail about themselves to each other, as an engaged couple planning a relationship might be expected to do.  The Tribunal accepts that the review applicant is not tech savvy and does not own, nor he says does he ever intend to own, a computer which is why their contact is by phone.  The Tribunal accepts this.

    Does the visa applicant intend to marry an eligible person?

22. 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 been provided with a certified copy of the review applicant’s birth certificate.  He was born on 11 April 1964 at the Women’s Hospital, Crown Street Sydney.  The Tribunal has no reason to doubt the validity of this document.  Accordingly, the requirements of cl.300.211 are met.

    Do the parties genuinely intend to marry?

23. 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.  At the time of application, the parties provided a Notice of Intended Marriage, which has now expired.  At the time of decision, the Tribunal was not in possession of an up-to-date Notice of Intended Marriage.  Nonetheless, the Tribunal is satisfied, on the weight of the other evidence discussed above, that the parties’ relationship is widely supported by friends and family, that they have a genuine intention to marry and that the marriage is intended to take place within the visa period.  Therefore, the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together?

24. 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.

25. 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. Based on the cumulative weight of the evidence provided by the parties and their witnesses, discussed in this decision, and the findings made, the Tribunal is satisfied that the parties genuinely intend to live together as spouses as defined in s.5F of the Act and therefore cl.300.216 met.

    Do the parties continue to meet time of application requirements?

26. 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 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 makes a finding, based on the discussion of the evidence in this decision and the findings above, that the applicant continues to satisfy cl.300.211, cl.300.214, cl.300.215 and cl.300.216 at the time of decision.  Accordingly, cl.300.221 is met.

27. 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

28. 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.300.215 of Schedule 2 to the Regulations

    ·cl.300.216 of Schedule 2 to the Regulations

    ·c.300.221 of Schedule 2 to the Regulations

    Jennifer Watts
    Member