1516749 (Migration)

[2016] AATA 3641

1516749 (Migration) [2016] AATA 3641 (6 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Smirnoff

VISA APPLICANT:  Miss Anna Dolinina

CASE NUMBER:  1516749

DIBP REFERENCE(S):  BCC2015/3591651

MEMBER:Steve Georgiadis

DATE:6 April 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 06 April 2016 at 4:04 pm

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 on 3 December 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (the applicant) applied for the visa on 19 November 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and other criteria discussed below.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the visa applicant intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 6 April 2016 to give evidence and present arguments. The Tribunal had arranged for the hearing to be conducted with the assistance of an interpreter in the Russian and English languages. The review applicant participated in the hearing in English as he confirmed at the hearing that he did not require the assistance of the interpreter given his English language skills.

6. The review application was lodged with the Tribunal on 5 December 2015.  For the following reasons, the Tribunal has determined that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

8. A preliminary issue relates to whether the applicant has made a valid application as the Tourist stream criteria set out in Subdivision 600.22 require that: the applicant intends to visit or remain in Australia to visit a specified Australian relative, or for any other purpose that is not related to business or medical treatment;[1] the visa is not sought for the purpose of commencing, continuing or completing a registered course in which the applicant is enrolled if in Australia as the holder of a student visa;[2] the applicant has not held certain types of visas if in Australia at the time of application;[3] the applicant meets sponsorship requirements, if so required;[4] and if sponsored, a security to be lodged, if so required.[5]

   [1] cl.600.221.

   [2] cl.600.222.

   [3] cl.600.223.

   [4] cl.600.224.

   [5] cl.600.225.

9. Clause 600.221(a) allows the applicant to visit Australia, or remain in Australia:

   (a)  to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; ...

10. Also, s.347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7), an application for review may only be made by the relative referred to in the subsection concerned: s.347(2)(c).

11. In the present case, the visa applicant seeks the visa for the purposes of visiting her fiancée in Australia, who is an Australian citizen and not a relative. At the hearing the Tribunal raised the issue of the validity of the application as not made in accordance with the relevant legislation because the review applicant is not in one of the classes of persons identified as a relative referred to in the subsection concerned: (s.338(7)(b) and s.347(2)(c)).

    s.338(7) A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

    (a)  the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

    (b)  a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and

    (c)  particulars of the relative concerned are included in the application.

12. The review applicant’s response to this issue raised at the hearing is that the term ‘partner’ has been used and that this term is ambiguous. The Tribunal notes that s.338(7)(b) includes a ‘de facto partner’ and the Tribunal has therefore, given consideration to whether the review applicant and visa applicant are de facto partners.  The Tribunal notes the applicants’ own description of their relationship set out in the application as fiancée.

13. The oral evidence before the Tribunal is that the applicants first met in Moscow on holiday, in late May 2015. The review applicant confirmed in his oral evidence that he left Australia to travel to Russia on 23 May 2015. The Tribunal finds from this evidence that it is less than one year since the applicants first met. The Tribunal accepts the oral evidence that they did not know each other prior to that time. The review applicant also said, and the Tribunal accepts, that the couple made the decision in June 2015 that they would marry. The Tribunal also accepts the oral evidence that in total (including a more recent holiday in Bali from January 2016 to March 2016) the applicants have personally been together in the order of some two months.

14. In her application the visa applicant states that the purpose of the visit to Australia is to “see the country, get together with my fiancée’s family and friends, get married, and spend as much time as possible with my husband...” The Tribunal accepts that the term fiancée here refers to the review applicant with who she is presently engaged to be married. The Tribunal also accepts that at the time of visa application made on 19 November 2015 they had been engaged for approximately five months.

15. Having considered the evidence discussed above including the extent and nature of the relationship, the Tribunal is satisfied that in all the circumstances, the applicants were not in a de-facto relationship at the time of application given in particular, the short period of time since the applicants’ first meeting of less than one year, that it is only since June 2015 that they decided to marry, the length of time during which they have lived together, and to a lesser extent their own description of each other as fiancée at the time.

16. As the decision that is the subject of the review application is a decision covered by s.338(7), the application for review could only be made by the sponsor referred to in that subsection.

17. In the present case, the review application was made by the visa applicant’s fiancée who is not in the class of persons identified in s.338(7)(b) of the Act. The Tribunal is satisfied that the application is not made by any persons covered in Part 5-reviewable decisions under the Act for the purposes of the grant of the Visitor (Class FA) visa.  As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

    DECISION

18. The Tribunal does not have jurisdiction in this matter.

    Steve Georgiadis
    Member