Cengic Karup (Migration)

[2017] AATA 913

Cengic Karup (Migration) [2017] AATA 913 (25 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Dzenita Cengic Karup

VISA APPLICANT:  Mr Edhem Karup

CASE NUMBER:  1615681

DIBP REFERENCE(S):  BCC2015/1810384

MEMBER:Kira Raif

DATE:25 May 2017

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.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 25 May 2017 at 10:37am

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 – Spouse of the sponsor – Short duration of relationship – Subsequent committed relationship – Several trips together – Genuine interest in children’s welfare – Financial support through a travel card

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulation 1994, Schedule 2, cl 309.211, cl 309.221, r 1.15A

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 September 2016 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 is a national of Bosnia and Herzegovina, born in August 1968. He applied for the visa on 24 June 2015 on the basis of his relationship with his sponsor. 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 visa applicant was the spouse of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 25 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the sponsor’s brother and father. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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).

5. 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 an Australian citizen.

6. ‘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).

   Are the parties validly married?

7. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with his application a copy of the marriage certificate. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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?

8. The Tribunal has had regard to the documentary evidence submitted with the primary application and considerably more evidence is before the Tribunal. The Tribunal has also had regard to the parties’ oral evidence. The Tribunal found them to be truthful witnesses.

9. The Tribunal has some concerns about the parties’ evidence concerning the development of their relationship. Their evidence indicates that the visa applicant was keen to meet a partner in Australia and was introduced to the sponsor. The review applicant explained to the Tribunal that this was taken out of context and the visa applicant jokingly asked his aunt whether she could find someone for him but it was not a serious conversation. That the fact that he was specifically looking for a partner in a different country suggests that migration was one of his motivations for entering marriage. The Tribunal is also concerned by the haste with which this relationship developed. The parties claim they first had contact in November 2014, met in person in March 2015 and committed to a relationship a short time later. They registered marriage on 4 April 2015, less than three weeks after the initial personal meeting, although the Tribunal acknowledges that by that time the couple had about six months of contact. The Tribunal is not satisfied that they would have been able to form a meaningful relationship, and a commitment to such a relationship, in such a short period of time.

10. Nevertheless, the Tribunal is mindful that two years have now passed since their marriage and the parties’ subsequent conduct suggests they are in a committed relationship. The Tribunal places significant weight on the fact that the sponsor made several trips to Bosnia and the couple spent considerable time together. They had undertaken trips together, visited relatives and friends and the Tribunal is satisfied they established a joint household.

11. The review applicant spoke about the relationship that the visa applicant has with her children. Her evidence is that her children are aware of the marriage, speak to the visa applicant frequently and that the visa applicant takes a strong interest in the children and will be a good role model for them. The visa applicant’s oral evidence indicates that he takes a genuine interest in the children’s welfare. The Tribunal is satisfied that the parties have discussed the children’s interests and that they plan to have joint responsibilities for the care and support of the children.

12. The Tribunal has some concerns about the visa applicant’s evidence in relation to his own children. The review applicant told the Tribunal that the visa applicant’s children are not really supportive of the marriage and that they have limited contact with their father. The visa applicant told the Tribunal that he has regular contact with his children and that they are supportive of the marriage.  The review applicant explained to the Tribunal that the visa applicant was being supportive of his children and that may be the case, although the Tribunal is concerned if that implies he has given incorrect information.

13. There are many statements before the Tribunal from the third parties concerning their belief the relationship is a genuine one. There is photographic evidence of the couple’s joint activities. The Tribunal accepts the couple’s evidence that when the sponsor travels to Bosnia, they socialise with friends and relatives, they have undertaken travel together and have socialised as a couple. The Tribunal accepts they represent themselves as a couple to others and that others believe the relationship to be a genuine one. The Tribunal also accepts that family members met the couple, maintain ongoing contact and support the relationship.

14. There is evidence that the review applicant provides some financial support to the visa applicant through a travel card. Her evidence to the Tribunal is that she has paid for various expenses since the couple’s marriage and she also paid for visa-related expenses. The Tribunal acknowledges that both parties have limited income and the review applicant has responsibilities for three minor children. The Tribunal accepts that despite the limited nature of financial support, such support is significant in the particular circumstances of this case.

15. The relationship has been in existence for a little over two years. The parties have spent considerable time together in that period and the Tribunal accepts that they provide each other with comfort and emotional support. The Tribunal accepts that the parties have genuinely discussed their future together and they have outlined their plans for the future in a meaningful way. The Tribunal accepts they view the relationship as a long term one.

16. Having regard to all the circumstances of this relationship, the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. The Tribunal finds that the visa applicant meets cl.309.211 and cl.309.221

    Conclusion

17. 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

18. 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

    ·cl.309.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member