1517503 (Migration)

[2016] AATA 4727

1517503 (Migration) [2016] AATA 4727 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dimce Stojanoski

VISA APPLICANT:  Mrs Danica Stojanoska

CASE NUMBER:  1517503

DIBP REFERENCE(S):  BCC2014/3202044 OSF2014/012084

MEMBER:Moira Brophy

DATE:23 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211of Schedule 2 to the Regulations

cl.309.221 of Schedule 2 to the Regulations.

Statement made on 23 November 2016 at 4:36pm

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 11 December 2015 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 November 2014 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309. 211 because the delegate was not satisfied the review applicant and the visa applicant were in a genuine and ongoing relationship.

4. The review applicant, Mr Dimce Stojanoski appeared before the Tribunal on 12 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mrs Danica Stojanoska, from Mr Miso Stojanoska the son of the review applicant and the visa applicant and from Mr Thomas Hamilton.

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

Background

1. The visa applicant, Ms Danica Stojanoska is a 58 year old female who resides in Macedonia.  Her parents and brother are deceased.

2. The review applicant, Mr Dimce Stojanoski is a 59 year old male living in Sydney. Mr Stojanoski came to Australia from Macedonia on 14 May 2010 sponsored by his son Mr Miso Stojanoski on a Subclass 143 Contributory Parent visa. His parents and two sisters reside in Macedonia.

3. At the time of the application the parties stated they met in 1978 and married in December 1980. There are two children of the marriage, Mr Miso Stajanoski and Ms Natasa Stojanoska.

4. The visa applicant was interviewed (by telephone) on 26 October 2015.

5. The delegate who made the original decision noted the following issues:

   ·     There was no evidence provided of the parties operating a joint bank account and further while it was accepted there had been financial support from the review applicant to the visa applicant in 2012 and 2013 there were only two instances of money transfers in 2014.

   ·     Based on the fact the review applicant had been in Australia since 2010 and the parties had only spent one month together in 2012 the delegate was not satisfied the parties shared a household.

   ·     There was limited evidence that the relationship of the parties was recognised socially.

   ·     The delegate was not satisfied that although the parties were legally married they were in a genuine and ongoing relationship particularly since they had not seen each other in over three years.

   ·     There was no evidence of ongoing contact.

Tribunal Proceedings

1. The issue in the present case is whether the visa and review applicants were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision.

2. At the time of hearing the parties provided the Tribunal with the following documents:

   ·     A printout from NAB Savings Account dated 24 February 2010.

   ·     Copies of Western Union Money transfers.

   ·     Copies of NAB telegraphic transfers from July 2009 to July 2013 (31 transfers for varying amounts, Danica Stojanoska being the nominated beneficiary).

   ·     NAB statements of an account held in name of Mr Dimce Stojanoski for period from 21 May 2011 to 20 May 2016.

   ·     International transfers through NAB to Ms Danica Stojanoska for period from 5 November 2015 to 22 June 2016.

   ·     NAB statements of account held in names of Miso Stojanoski & Keti Stojanoska for period from 22 January 2011 to 22 June 2015.

   ·     A statutory declaration from Jone Zengovski dated 30 September 2016 attesting to the relationship between the review applicant and the visa applicant.

   ·     A statutory declaration from Thomas Hamilton dated 12 October 2016 attesting to the relationship between the review applicant and the visa applicant.

3. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the review applicant, visa applicant and witnesses at the hearing.

4. Following the hearing the following documents were provided to the Tribunal by the parties:

   ·     Copies of deposits into a loan account

   ·     Proof of liquidation of company registered to Danica Zhetva Ohrid Dooel (dated 15 April 2011).

   ·     Copy of decision by Zvonko Georgieski dated 5 September 2014 to delete second mortgage on property owned by Danica and Dimce Stojanska from Ohrid as their monetary obligations have been fulfilled.

   ·     Copy of power of attorney dated 4 May 2010 from Dimce Stojanoski to Danica Stojanoska to deal with matters relating to government authorities.

   ·     Copies of statements from loan account in name of Dimce Stojanoski for period from 1 June 2010 to 12 October 2016.

   ·     Copies of deposits into a loan account.

5. Those submissions have been taken into account and where relevant will be referred to in the reasons below.

6. At the time of hearing the parties and their son gave clear, consistent and credible evidence and the Tribunal was satisfied in could rely on that evidence in the making of findings. The Tribunal accepts the history of the relationship as given by the parties.

7. The parties told the Tribunal they had been married in 1980 and they had two children, Mr Miso Stajanoski and Ms Natasa Stojanoska. The family lived in a unit they owned in Macedonia until the review applicant came to Australia in 2010. Their son Mr Miso Stojanoski was sponsored to Australia in 2005 by his wife. He acquired Australia citizenship in 2010.

8. The parties told the Tribunal the review applicant had worked in Macedonia as a distributor for the Cola Company for some 24 years and then around 2002 he and his wife opened a delicatessen. Initially his wife worked there and then he also worked in the business as it grew. Due to a combination of factors trade slowed and the business went bankrupt at the end of 2008. They had to borrow money against their unit by taking out a second mortgage. Employment opportunities were limited in Macedonia at the time and so a decision was made the review applicant would come to Australia. It was a family decision that it would be the review applicant who came first as it was considered he would have a better opportunity to gain employment and would have the greater earning capacity. His son was able to sponsor him on a Contributory Parent Visa but he was not in a financial position to bring both his parents at that time. The review applicant arrived in Australia in May 2010 and since that time he has worked and sent money back to his wife to meet her living costs and to clear their debts in Macedonia. Six months after the review applicant arrived an application was made to bring the visa applicant on a Contributory Parent Visa. In 2012 when her application was being assessed they were advised of a change in Government policy and the cost of the visa had increased by some $12,000. Mr Miso Stojanoski and his wife had just purchased their house and with the costs associated with that purchase they were just unable to come up with the extra money in the short time frame. As a consequence they had to withdraw the application.

9. The review applicant went to Macedonia to be with his wife after that decision to withdraw the application was made. It was a very difficult time for them. They decided to reapply and hoped they would be in a better position to meet any additional and unexpected costs next time.

10. At the end of 2012 Ms Natasa Stojanoska announced her engagement. The review applicant and the visa applicant decided to postpone her visa application as their priority was for the visa applicant to stay with her daughter until she married and to be there to organise the wedding. The parties were also mindful of the additional costs associated with their being parents of the bride and they prioritised that over their own plans.

11. The records show that during this period the parties repaid the debts they had incurred as a result of their business failing.

12. After that decision was taken for the visa applicant to not reapply until their daughter married the review applicant received advice that since he had been in Australia for five years he was able to apply for a visa to bring his wife to Australia and that there was an alternative to the Contributory Parent Visa. The visa applicant applied for the visa on 20 November 2014 on the basis of her relationship with the review applicant.

Whether the parties are in a spouse or de facto relationship

1. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is a permanent resident.

2. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is 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 forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties' marriage in December 1980 and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, the Tribunal finds that, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

Are the other requirements for a spousal relationship met?

Financial

1. The review applicant lives with his son and daughter in law and their two children. His son and his wife purchased the house about five years ago. The property is mortgaged and his son and his wife make the payments on the mortgage. The review applicant contributes to the costs of the household if he is able to. The review applicant is employed as a sub-contractor doing installations of cables, pipes and new pits for Telstra. He earns around $1000 to $1400 per week and as he is a sub-contractor he has to pay his own vehicle costs and insurances. He works five days a week and sometimes on Saturdays as well.

2. The visa applicant lives in Macedonia in a property jointly owned by the parties. She is currently not in paid employment.

3. The parties have a jointly owned property in Macedonia that is now mortgage free. The review applicant has approximately $10,000 in his savings account in Australia.

4. The review applicant transfers money on a monthly to the visa applicant to meet all her personal needs and to pay their debts and the costs associated with their home.

5. The parties gave clear and consistent evidence as to their financial arrangements. The review applicant told the Tribunal he had worked in Macedonia as a distributor for the Cola Company for some 24 years and then around 2002 he and his wife opened a delicatessen. Initially his wife worked there and then he also worked in the business as it grew. Due to a combination of factors trade slowed and the business went bankrupt at the end of 2008. They had to borrow money against their unit by taking out a second mortgage. Employment opportunities were limited in Macedonia at the time and so a decision was made the review applicant would come to Australia where it was thought he would have a better opportunity to gain employment. The review applicant arrived in Australia in May 2010 and since that time he has worked and sent money back to his wife on a monthly basis.

6. The evidence given at the time of hearing as to the financial arrangements was corroborated by the account statements provided after to hearing.

7. They presently do not share day-to-day household expenses. This is not unusual given the review applicant is in Australia and the visa applicant is in Macedonia.

8. The Tribunal found the evidence to be consistent with a pooling of resources and to be corroborative of the parties being in a relationship in that they were working towards a shared goal. Given the review applicant is not on a high income and has been separated from his wife and daughter in an effort to clear their debts and secure their future, this has placed a heavy burden on all the family members.

9. The Tribunal places considerable weight on this aspect of the relationship.

Nature of the Household

1. The Tribunal accepts on the evidence the parties resided together in the period from 1980 until 2010. The Tribunal further accepts that while they have not physically resided together since 2010 that has been because of their commitment to each other and to their family.

2. The evidence given by the review applicant is that in the time they resided together they shared the housework and he did most of the cooking as that was his trade. This was consistent with the evidence given by the visa applicant.

3. The parties gave consistent evidence about their plans to reestablish a joint household in Sydney. They would initially live with their son and his family but they hoped if they were able to sell their property in Macedonia they would be able to buy their own place in Australia. The review applicant said he would keep working as long as it took to enable them to do this.

4. The Tribunal places considerable weight on this aspect of the relationship given the accepted long periods of cohabitation since marriage.

Social Aspects of the Relationship

1. The applicant provided the following statutory declarations and letters in support from witnesses to the department:

   ·     A statutory declaration from Jone Zengovski dated 30 September 2016 attesting to the relationship between the review applicant and the visa applicant.

   ·     A statutory declaration from Thomas Hamilton dated 12 October 2016 attesting to the relationship between the review applicant and the visa applicant.

2. The Tribunal accepts from the photographic evidence, the supporting documentation as outlined above and their oral testimony at hearing,  the parties have as a couple spent time with their family and friends and they socialise within their community as a married couple

3. The Tribunal accepts on the evidence before it the parties present to their family and friends as a married couple.

Nature of the persons Commitment to each other

1. The Tribunal is satisfied that the parties have been committed to each other since they married in December 1980. The review applicant gave a frank account to the Tribunal of the difficulties in their time since their business failed. The Tribunal accepts that in their efforts to repay monies owed as a result of that failure the parties have lived in different countries. While initially that seemed like an ideal short term solution it has lasted for a much longer period because of a combination of factors. The Tribunal accepts that the relationship has been subjected to a great deal of stress because of these factors. The Tribunal accepts the conduct of the parties and their tenacity over this period has of itself been a strong indicator of their commitment.

2. The Tribunal is satisfied on the basis of the evidence the parties are in daily communication. The review applicant and his son made a concerted effort to ensure the visa applicant was part of their daily life albeit from a distance.

3. The parties impressed as having a keen perception of the strengths and weaknesses of each party and their potential contributions to the marriage. Their honesty and commitment to each other and to their extended family was most transparent.

4. The parties gave evidence of shared hopes and mutual goals. They spoke of their desire to be back together and to enjoy each other and their grandchildren. The Tribunal is satisfied that the relationship is characterised by a high level of emotional support and care and that they both see the relationship as long-term.

5. The Tribunal accepts on the evidence the parties have spent limited time together since the review applicant departed Australia because of financial constraints and for no other reason. The review applicant has placed a priority on maintaining his employment as it has been the only source of income the parties have at this time.

6. Based on all the evidence the Tribunal finds the parties have a commitment to each other consistent with them being in a spousal relationship.

7. Given the above findings, the Tribunal is satisfied that at the time the visa application was lodged and at the time of this decision the parties are validly married, have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal finds that they intend to live together in Australia and that they therefore do not live separately and apart on a permanent basis.

8. Accordingly the Tribunal finds that the applicant satisfies the definition of 'spouse' in s.5F (2) (a)-(d), and that the parties were in a spousal relationship.

9. The review applicant is a permanent resident.

10. Given these findings the Tribunal is satisfied that at the time the visa application was made, and the time of this decision, the parties were in a spousal relationship. The Tribunal finds that the visa applicant is the spouse of the review applicant and satisfies cl.309.211 (2) and therefore cl.309.211. The Tribunal finds that at the time of decision the visa applicant continues to satisfy cl.309.211.

11. Therefore the visa applicant satisfies both cl.309.211 and cl.309.221.

12. 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 309 visa.

Decision

1. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

• cl.309.211 of Schedule 2 to the Regulations: and

• cl.309.221 of Schedule 2 to the Regulations.

Moira Brophy
Member

ATTACHMENT  - Extract from Migration Regulations 1994

1.15ASpouse

1. For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

1. If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

2. The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)       any joint ownership of real estate or other major assets; and

   (ii)      any joint liabilities; and

   (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day‑to‑day household expenses; and

   (b)the nature of the household, including:

   (i)       any joint responsibility for the care and support of children; and

   (ii)      the living arrangements of the persons; and

   (iii)     any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)       whether the persons represent themselves to other people as being married to each other; and

   (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)     any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)       the duration of the relationship; and

   (ii)      the length of time during which the persons have lived together; and

   (iii)     the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long‑term one.

3. If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).