1601450 (Migration)

[2016] AATA 4479

1601450 (Migration) [2016] AATA 4479 (29 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Katica Marenjak

VISA APPLICANT:  Mr Sandi Marenjak

CASE NUMBER:  1601450

DIBP REFERENCE(S):  BCC2015/3502270

MEMBER:John Billings

DATE:29 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 29 September 2016 at 2:58pm

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 13 January 2016 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, Mr Marenjak, a 39 year old national of Croatia, applied for the visa on 24 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 Sponsored Family 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 he or she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that Mr Marenjak did not meet cl.600.211.   Considering especially what family Mr Marenjak has in Australia compared with what family he has in Croatia, and the evidence submitted regarding Mr Marenjak’s employment in Croatia, the delegate was not satisfied that he genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted.  Mrs Marenjak, the review applicant, who is Mr Marenjak’s mother, applied for review on 8 February 2016. 

5. Mrs Marenjak appeared before the Tribunal on 26 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from her other son, Mr Dejan Marenjak (“Dejan”) and, by telephone, from Mr Marenjak.  The Tribunal hearing was conducted with the assistance of an interpreter in the Croatian and English languages.

6. Mrs Marenjak and Dejan are Australian citizens.  Mrs Marenjak has two sons.  She is no longer married to the father.  The father is in Croatia and jointly owns property with Mr Marenjak in a village there.  Mr Marenjak did not come to Australia in in 1999 when his mother and Dejan came here because, in particular, he still had national service obligations in Croatia. 

7. The visa application was expressly made on the basis that Mr Marenjak wanted to attend Dejan’s wedding on 19 December 2015 and to celebrate Christmas and New Year with his family in Australia.  Among other things the application indicated Mr Marenjak’s relationship status to be “never married”. 

8. Mrs Marenjak was represented in relation to the review by her registered migration agent. The representative attended the hearing. 

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. In the present case, Mr Marenjak seeks the visa for the purposes of visiting his mother, brother and other family members in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

12. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).  Mr Marenjak has not held any Australian visa before.   

13. The Tribunal mentions incidentally that the delegate made an adverse finding that Mr Marenjak indicated in the visa application that he had never been to Australia or previously applied for a visa whereas Departmental records indicated that he was refused a Subclass 600 visa in 2014.  Mrs Marenjak’s representative submitted that the online form actually did not permit a response to be given to the question in the application about that.  The Tribunal observes that the printout of the application form is consistent with that position, for it actually shows no response to the question compared with “yes” or “no” in response to many other questions. 

14. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.612):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

15. The Tribunal must also consider all other relevant matters (cl.600.211(c)).

16. On the face of it, the visa application indicated that Mr Marenjak has substantially more family members in Australia than in Croatia although, significantly, he has very close family members - his mother and brother - among his family members here.  The Tribunal received a document listing his family members in Croatia and the Tribunal heard oral evidence about that, which the Tribunal accepts.  There are numerous uncles, aunts and cousins on both sides of the family in Croatia.

17. There was a document submitted to the Department showing Mr Marenjak’s interest in property he shares with his father.  The Tribunal heard that Mr Marenjak lives there with his father for three, four or five months of the year.  The rest of the time he lives and works in a city less than an hour’s travel away.  He works there in the construction industry.  He is self-employed but currently works for someone else.  Work records submitted to the Department showed something of his employment history but only until January 2013.  The Tribunal invited Mrs Marenjak to submit up to date evidence.  The Tribunal received an untranslated handwritten letter, not on letterhead, that purported to be by a company representative confirming that Mr Marenjak had been working for the company since May this year.  Even if this evidence is accepted there is no documentary evidence covering the period from January 2013 until May 2016.     

18. The Tribunal accepts as credible the evidence given concerning Mr Marenjak’s family, his property and (albeit with reservations) his employment in Croatia.  However, there were some aspects of the case that were unsatisfactory.  They were not all central to the issues now to be determined but these matters detract from the reliability of the evidence.

19. In a statutory declaration dated 30 November 2015 that was submitted to the Department Mrs Marenjak declared that Mr Marenjak wanted to come to Australia to attend Dejan’s wedding and spend time with her and the family.  She also said that she could not travel overseas because of her health.  In a statutory declaration dated 18 September 2016 that was submitted to the Tribunal Mrs Marenjak added that it was planned that the wedding would take place in Geelong on 19 December 2015 but that two weeks before the wedding the family realised there might be a delay regarding the visa and so Dejan decided to relocate the wedding to New Zealand.  (Dejan’s wife is from New Zealand and her family lives there.  Mr Marenjak was able to obtain a visa for travel to New Zealand).  Mrs Marenjak also mentioned in the statutory declaration that Mr Marenjak has a “long term girlfriend” and helps her to raise her three children from a previous relationship.  In a written submission dated 24 September 2016 it was also stated that the wedding had to be relocated to New Zealand at short notice.  The submission also mentioned Mr Marenjak’s girlfriend though stated that she has four children.  

20. In contrast to the above statements about the late relocation of the wedding, there was a letter dated 3 October 2015 that was submitted to the Department.  That was several weeks prior to the date of the visa application.  The letter was written by a priest in Geelong.  The letter stated that Dejan would marry on 19 December 2015 at a named church that Mrs Marenjak agreed was a church not in Geelong but was the church in the place in New Zealand where the wedding took place.  Dejan confirmed that the plan to marry in New Zealand preceded the making of the visa application.  Mrs Marenjak appeared genuinely confused about that.  The issue now of course is Mr Marenjak’s present intention but this is a matter that to some degree undermines the case.  

21. Concerning Mr Marenjak’s girlfriend, the Tribunal heard that she lives in the city where he spends a substantial part of the year.  He stays with her from time to time.  Mrs Marenjak and Dejan were unsure about how long the relationship has been in existence.  They thought it has been four-five years whereas Mr Marenjak said it has been about eight years.  Mrs Marenjak said there were three children.  She did not know their names.  Dejan said there were four.  He met them when he visited Croatia in 2011.  Mrs Marenjak said that Mr Marenjak told her about the relationship when she and he were in New Zealand but that she did not take much notice. 

22. Mr Marenjak said he would like a visa that would enable him to stay for as long as he would be allowed to.  He then said that he would like it to be for six-seven months.  He also said he was aware that Dejan’s father-in-law in New Zealand had written a letter in support.  In that letter the father-in-law said that he would like Mr Marenjak to return to New Zealand for a longer period of time and that about a year would be good.  (The Tribunal emphasises that the letter refers to a further visit to New Zealand and not a visit to Australia). 

23. Mr Marenjak told the Tribunal that in the northern winter there was less work so it would suit him to travel at that time. 

24. The main points about the evidence just referred to include that it casts doubt on Mr Marenjak’s intention, as stated in the visa application, to visit Australia for three months.  But the evidence, combined with the other evidence about his relationship (which relationship was not mentioned in the visa application), indicates that the relationship is not a factor that weighs substantially if at all in favour of a finding that Mr Marenjak genuinely intends to stay temporarily in Australia for his stated purpose and that he would not remain in Australia after the end of his permitted stay.  That is, the relationship (or other factors including his employment) is evidently not seen by Mr Marenjak as a bar to him being in Australia for six months or more.  On examination, the evidence concerning Mr Marenjak’s relationship does not support the application strongly if at all. 

25. The evidence concerning Mrs Marenjak’s capacity to travel was also qualified once examined.  The Tribunal invited her to provide medical evidence to support statements in her more recent statutory declaration.  A GP’s letter dated 19 September 2016 referred to “medical problems” that were considered to be aggravated by separation from Mr Marenjak.  The GP did not express an opinion about her capacity to travel.  Mrs Marenjak provided more detail though also said that her doctor had suggested that for a couple of years it was better that she not travel by air for long distances. 

26. The representative observed that Mr Marenjak has travelled repeatedly within the European Union, especially to Hungary.  She further observed that Marenjak visited New Zealand from December 2015-February 2016 and complied with the immigration laws of that country.  The submission was made that there is “no reason to believe that [he] would have behaved any different[ly] if he was granted a visa to visit his family in Australia”. 

27. The evidence regarding Mr Marenjak’s visit to New Zealand has some weight but his mother and brother were there only temporarily when he was there whereas they reside in Melbourne so that there would be the incentive for him to remain in Australia for a longer period of time.

28. There is nothing before the Tribunal to indicate that Mr Marenjak has any intention to study in Australia or apply for a substantive visa.  In relation to the most relevant other visa conditions, the Tribunal accepts the evidence that Mrs Marenjak and Dejan, who are both employed, would provide financial support.   However, the Tribunal considers that the longer the period Mr Marenjak wants to stay in Australia the less sustainable would be the claims that he would be financially supported by his mother and brother and that he would not seek work here, despite him saying to the Tribunal that of course he would not work in Australia. 

29. Ultimately, when the Tribunal weighs the factors that give Mr Marenjak incentive to return to Croatia with factors that give him incentive to remain in Australia, and when the Tribunal also considers what he said about the period for which he would like to stay in Australia, and when the Tribunal considers the quality of the evidence in its totality, the Tribunal is not satisfied that Mr Marenjak genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted, having regard to the matters set out in cl.600.211. 

30. For the above reasons the Tribunal is not satisfied that Mr Marenjak genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are not met.

    DECISION

31. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    John Billings
    Senior Member