1516052 (Migration)

[2016] AATA 4756

1516052 (Migration) [2016] AATA 4756 (1 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms GORICA MIRKOVIC

VISA APPLICANT:  Mr DUSKO RAKOCEVIC

CASE NUMBER:  1516052

DIBP REFERENCE(S):  BCC/2014/332852 OSF2014/012061

MEMBER:Fiona Meagher

DATE:1 December 2016

PLACE OF DECISION:  Brisbane

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, cl.300.212, cl.300.213, cl.300.214, cl.300.215, cl.300.216 and cl.300.221 of Schedule 2 to the Regulations.

Statement made on 01 December 2016 at 6:26pm

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 – cl 300.215 – cl 300.216 – cl 300.221 – Genuine intention to live together – Involvement with applicant’s children – Financial support – Shared backgrounds and interests – Knowledge of previous relationships – Detailed plans for future – Decision under review remitted

LEGISLATION

Migration Act 1958
Migration Regulations 1994

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 4 December 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.300.216.

3. The delegate refused to grant the visa on 14 November 2015 on the basis that the visa applicant did not satisfy cl.300.215, cl.300.216 or cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant and sponsor genuinely intended to marry and live together as spouses at the time of application and at the time of decision.

4. The review applicant appeared before the Tribunal on 7 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dusko RAKOCEVIC, who is the review applicant's Partner.  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 her 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.

   Background

7. The visa applicant is a 52-year-old citizen of Serbia. He has not been previously married, but has been in a de facto relationship between 1992 and 2010. There are two children of that relationship, both now in their 20s.

8. The review applicant is a 52-year-old citizen of Australia by Grant dated 29 January 1980. She declared one previous marriage, between August 2008 and February 2009. She has no children. The sponsor sponsored her previous husband to Australia.

9. The review applicant’s family left Serbia to live in Australia in 1971 and returned to Serbia in 1987 as the review applicant’s father “wanted to die in Serbia”. The parties stated that they met as friends during the period when the review applicant and her family were in Serbia, then the review applicant told the Tribunal that the parties went their separate ways as she returned to Australia in 1993 and the applicant at that time had a de facto partner. Over the intervening years the parties had mutual acquaintances.

10. The sponsor told the Tribunal of her brief marriage to Simovic Srdjan, and explained that it did not work out because they wanted different things and he was not truthful. She said that the parties in this matter reconnected in 2011 on Facebook and started talking and really liked each other. The parties stated in the applications that the date of their intended marriage was 25 December 2015.

11. The parties were interviewed by telephone by a delegate of the department on 14 October 2015.

12. In the decision record, a copy of which was provided to the Tribunal with the application for review, the delegate placed weight on the following concerns:

    ·the paucity of evidence regarding ongoing contact between the couple;

    ·the failure of the applicant to disclose his relationship to the review applicant on the visitor visa applications he has made, and the failure of the review applicant to mention that the parties the applicant claimed to want to visit (in his visitor visa applications) were her sister and brother-in-law;

    ·the review applicant’s lack of knowledge regarding the applicant’s children and work;

    ·the length of time the applicant and sponsor has spent together; and

    ·the suddenness of the parties’ decision to get married.

13. Prior to the hearing the review applicant’s agent provided further information to the Tribunal, including but not limited to:

    ·Photographs of the review applicant and visa applicant alone together and with the visa applicant’s family members.

    ·Hotel receipts for the review applicant and visa applicant for June and July 2016.

    ·Serbian identity cards.

    ·Envelopes from cards.

    ·Telephone accounts of the review applicant.

    ·A statement.

    ·Extracts of text messages from Facebook messenger during various times.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the visa applicant and review applicant (sponsor) intend to marry and live together in a spousal relationship, both at the time of application and at the time of this decision.

15. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided by the parties and witnesses at the hearing.

16. The visa applicant and review applicant gave generally consistent evidence in respect of the inception and development of their relationship, and their plans for the future. The Tribunal found the parties to be truthful and credible. The Tribunal accepts that the parties reconnected through Facebook, and met again in person in 2013 in Kralijevo, in Serbia, where the review applicant’s mother lives. In 2013 both parties had turned 18. The Tribunal has sighted photographs of the couple together, both in 2013 and subsequently, and certified translations of the parties birth certificates evidencing their ages.

17. The Tribunal finds on the evidence that the review applicant is not prohibited by subclause (2) of cl.300.212 from being a sponsor and is over the age of 18 years. The Tribunal finds that at the time of application the applicant was sponsored by the review applicant. There is no dispute and the party finds that the parties met and are known to each other personally. Therefore, the requirements of cl.300.212, cl.300.213 and cl.300.214 are met.

    Does the visa applicant intend to marry an eligible person?

18. 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 sighted a copy of the review applicant’s Certificate of Australian Citizenship dated 29 January 1980.

19. The Tribunal accepts on the basis of the oral evidence provided at the hearing and the electronic communication records before it that the parties communicate with one another regularly. The review applicant and the visa applicant gave oral evidence that they are marrying because they love one another and wish to spend the rest of their lives together. At the hearing the parties presented as being genuinely committed to the relationship.

20. The Tribunal observes that on the evidence the review applicant has transferred money to the visa applicant twice, most recently this year. The parties gave consistent evidence that the money was sent to assist the applicant to pay for expenses associated with his children’s education. The Tribunal has sighted one Western Union money transfer in that regard.

21. Accordingly, the requirements of cl.300.211 are met.

    Do the parties genuinely intend to marry?

22. 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.

23. The parties gave consistent evidence regarding their intention to marry. As well as the date stipulated in the visa and sponsorship applications, the Tribunal has sighted a letter from a civil marriage celebrant dated 30 April 2015 confirming that he had been booked to officiate at a wedding of the parties on Sunday, 14 February 2016 and has taken a non-refundable deposit in relation to the marriage and completed a notice of intended marriage, and completed a notice of intended marriage. While obviously that date has passed, the Tribunal heard evidence from the parties that they propose to marry within the visa period, after the applicant comes to Australia, using the same celebrant.

24. 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?

25. 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.

26. 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.

27. The evidence before the Tribunal in relation to this issue is as follows:

    ·The parties share similar interests such as travelling.

    ·They were and are drawn to one another due to their shared similar backgrounds.

    ·The review applicant was impressed by the visa applicants character traits of kindness and generosity and his caring attitude especially towards his children. She thinks he has a good attitude to life. The review applicant said that the visa applicant spends as much time as possible with his children – particularly given they live in another city.

    ·The review applicant knew that the visa applicant works as a handyman and house sitter, and is currently working in Montenegro minding approximately three homes. She stated that he has previously been a baker.

    ·The parties gave consistent evidence that they spent three months together in Serbia in 2013 and a further month together earlier this year  (2016) during which they lived together and travelled, and went sightseeing and visiting friends and family.

    ·The review applicant stated that she had been unable to return to Serbia before this year as she could not afford it.

    ·The review applicant explained that the parties had tried to organise for the visa applicant to visit her between her two visits to Serbia but that his visitor visa applications were refused, because he did not have a job to return to.

    ·The Tribunal has cited photographs of the applicant’s recent trip to Serbia, as well as her earlier one in 2013.

    ·The review applicant works as a cleaner at schools and is hoping to be made permanent at the end of this year.

    ·The parties demonstrated knowledge of one another’s previous relationships.

    ·The review applicant stated that the visa applicant will miss his children, but that they are now at an age where they have their own lives (and travel), and in any case he will keep in touch via phone and Skype.

    ·The parties gave consistent evidence about their frequent and ongoing contact with one another by telephone and Skype and the Tribunal has sighted numerous telephone records supporting that.

    ·The parties gave consistent evidence about their plans for where they will live, what work the applicant will do in Australia, and their hopes and goals for the future, including travelling to Japan.

    ·The parties consistently stated that they were of an age where they knew what they wanted and wish to be together.

28. The Tribunal considers that the concerns of the delegate of the Department were answered by the parties and their evidence. It is satisfied by the parties explanations regarding their inability to meet in person between 2013 and the date of the delegate’s decision (14 November 2015), the review applicant’s knowledge of the visa applicant’s children and work, the visitor visa applications, the amount of time the parties have spent together and the timing of their engagement.

29. 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?

30. 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.

31. After taking into account the oral evidence at the hearing, the parties regular contact with one another and the consistency in their evidence about its future plans, the Tribunal is satisfied at the time of this decision that the visa applicant intends to marry the review applicant, who is an Australian citizen, that they have met and are known to each other personally, and that they genuinely intend to marry.  Accordingly, cl.300.221 is met.

32. The Tribunal has had the benefit of additional information that was not before the delegate.

33. 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

34. 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. cl.300.212, cl.300.213, cl.300.214, cl.300.215, cl.3200.216 and cl.300.221 of Schedule 2 to the Regulations.

    Fiona Meagher
    Member