Jovanovski (Migration)

[2019] AATA 4635

Jovanovski (Migration) [2019] AATA 4635 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Richard Jovanovski

VISA APPLICANT:  Mrs Natasha Jovanovski

CASE NUMBER:  1722037

DIBP REFERENCE(S):  OSF2017/014665

MEMBER:Adrienne Millbank

DATE:13 September 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 13 September 2019 at 3:42pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – criminal record – re-offending – significant criminal record – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 309.213, 309.222, r 1.20KC

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 August 2017 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 41-year-old national of FYR Macedonia. The sponsor, the review applicant, is a 40-year-old Australian citizen.

3. The visa applicant applied for the visa on 31 December 2016 on the basis of her relationship with her sponsor. 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

4. The Delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222(1) because the sponsorship referred to in cl.309.213, a time of application criterion, was not approved by the Minister. The sponsorship was not approved on 7 June 2017 under r.1.20KC provisions, therefore the sponsorship referred to in cl.309.222 was not in force at the time the Delegate made the decision.

5. The review applicant appeared before the Tribunal on 22 August 2019, by telephone from FYR Macedonia, to give evidence and present arguments. The Tribunal also received oral evidence by telephone from FYR Macedonia from the visa applicant and the visa applicant’s mother. The hearing was conducted with the assistance of an interpreter in the North Macedonian language.

6. Further documents including a written submission from the sponsor, which the Tribunal has considered, were provided to the Tribunal on 23 August 2019, 25 August 2019 and 30 August 2019, after the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue before the Tribunal is whether the sponsor has been convicted of a relevant offence or relevant offences and has a significant criminal record in relation to the relevant offence or relevant offences, and therefore r.1.20KC(3) applies, and if so whether under r.1.20KC(4), despite the sponsor not meeting r.1.20KC(3), it is reasonable to decide to approve the sponsorship.

   Are the sponsorship requirements met?

9. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

10. At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.309.222. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010 and r.1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

11. The sponsor is over 18 years old and is an Australian citizen. A copy of the sponsor’s birth certificate was provided at the time of application, certifying that he was born in Geelong, on 17 November 1978. Therefore, cl.309.213 is met.

12. Regulation 1.20KC of the Regulations provides that the sponsorship of each applicant for a Partner or Prospective Marriage visa must be refused if the sponsor has been convicted of a ‘relevant offence’ and has a ‘significant criminal record’ in relation to it. A ‘relevant offence’ is defined in r.1.20KC(2) as an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving matters such as violence, harassment, breaches of apprehended violence orders, weapons, people smuggling, human trafficking, ancillary offences, and attempts to commit offences involving such matters. Regulation 1.20KD provides that a ‘significant criminal record’ is indicated by the sponsor having been sentenced to death, life imprisonment, imprisonment of 12 or more months, or two or more terms of imprisonment totalling 12 months or more, in relation to a relevant offence or offences. A sentence or conviction for a relevant offence must be disregarded if the conviction has been nullified or the sponsor has been pardoned so that they are taken to have never been convicted of that offence: r.1.20KD(5).

13. The sponsorship may nevertheless be approved if it is reasonable to do so, having regard to matters including the length of time since the sponsor completed the sentence, the best interests of any children of the sponsor or primary applicant, and the length of the relationship between the sponsor and the primary applicant: r.1.20KC(4).

14. At the outset of the hearing, the Tribunal advised the review applicant, the sponsor, that it had a copy of his Australian Federal Police National Police Certificate, dated 22 February 2017, detailing his disclosable court outcomes over an 11-year period, from 2 May 1996 for the unlawful use of a vehicle without conviction but with 12 months’ probation and six months’ licence disqualification, to a charge of Threats on 18 April 2017 with outcome pending. The Tribunal noted that out of 15 charges, he received nine convictions. The Tribunal noted that the sponsor was sentenced, inter alia, to nine months’ imprisonment on 4 October 2013 for Unlawful Stalking, and for three months’ imprisonment on 22 March 2016 for Common Assault (Assault or Obstruct Police Officer). Therefore, for the purposes of 1.20KC, the sponsor has a significant criminal record in relation to a relevant offence or relevant offences.

15. The Tribunal advised the sponsor that refusal of his sponsorship was therefore mandatory, unless the Minister considered it reasonable to approve the sponsorship despite his not meeting r.1.20KC(3). The Tribunal noted that the sponsor was at the time of the hearing, and is until 21 March 2021, subject to an order dated 7 April 2017 by the Southport District Court of Queensland preventing him from any contact with his previous partner or her family. The Tribunal invited the sponsor to consider his response to the above information and advised him that he could seek an adjournment.

16. The sponsor did not seek an adjournment. He stated that he had agreed to the restraining order taken out by his previous partner, and that the charges of unlawful stalking and threats had been withdrawn. He stated that he understood why his sponsorship was refused under r.1.20KC. He did not dispute that, as defined for the purposes of r.1.20KC, he has a significant criminal record in relation to a relevant offence or relevant offences. He argued rather that the regulation which came in in November 2016 is too harsh, in that it could separate Australian citizens from their partners or, as in his case, cause Australian citizens hardship by forcing them live in a foreign country.

17. The sponsor submitted that it is reasonable in his case to approve the sponsorship having regard to matters set out in r.1.20KC(4) and his and the applicant’s circumstances. Under r.1.20KC(4) the Minster may, as noted, despite r.1.20KC(3), decide to approve the sponsorship if the Minster considers it reasonable to do so, having regard to matters including the following (without limitation):

    (a)The length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences;

    (b)The best interest of  the following:

    (i)any children of the sponsor;

    (ii)any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned;

    (c)the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.

18. Neither the sponsor nor the visa applicant has any children. Evidence was provided that the parties have tried to conceive through IVF and that the applicant has suffered a miscarriage. The Tribunal accepts that there are no concerns at the time of decision regarding potential family violence affecting any children, but notes that the parties have indicated that they intend to have children.

19. The sponsor provided in his written statements and at hearing the following reasons why it is reasonable to approve the sponsorship: he is in a long-term relationship with the visa applicant; his parents in Australia are elderly, aged 71 years, an age at which ‘anything can occur’; his mother suffers health issues including glaucoma and needs the parties’ support; and he does not want to live in Macedonia because it is a ‘third world country’ with low income levels and inferior health services. The sponsor confirmed at hearing that both he and the visa applicant have been unemployed since his return to Macedonia in April 2017 and that they have been under considerable financial strain because he has not been able to receive his Australian Disability Support Pension. He stated that both he and the visa applicant have suffered from stress caused by the visa refusal and their uncertain existence.

20. Regarding the duration of the relationship, at hearing the sponsor confirmed information he provided in a written ‘Statement of Facts’ received by the Tribunal on 9 October 2017: he first met the visa applicant when he travelled to Macedonia on 15 November 2016 and he and the visa applicant married on 26 November 2016. He stated that he had previously established online contact with the visa applicant following their introduction to each other by his mother who is distantly related to the applicant’s family. The sponsor confirmed that he returned to Australia on 14 December 2016, and returned to Macedonia on 14 April 2017, after the visa refusal. He stated that he and the visa applicant communicated while in different countries via Skype, Viber and phone. He confirmed that he and the visa applicant have lived with the visa applicant’s parents since this 14 April 2017, and that they have been supported financially by the visa applicant’s parents and by his parents who send money from Australia.

21. The Tribunal considers that the parties’ relationship was of short duration at the time of application as they had spent only one month in the same country before the application was lodged. The sponsor acknowledged at hearing that the parties hadn’t spent much time together when they married. He stated that he ‘liked what he saw’, and that he and the visa applicant understood each other from the outset.

22. The Tribunal accepts that the parties have lived together for over two years, since April 2017, but considers that they have lived together in a suspended situation for the purpose of and while waiting for the grant of the visa. In a written statement dated 7 July 2019 the visa applicant stated:

    Living conditions are extremely poor in North Macedonia and I know for certain that my husband [the sponsor] is feeling the effects … he wants to return as soon as possible with me to Australia so we can continue living and planning a happy future together with more opportunities and a much better quality of life for us both.

    From a personal point of view of myself, I am a very well educated individual who has completed a Bachelor’s Degree in University … Australia could definitely benefit from my set of skills … I have much family in Australia’.

23. At hearing the visa applicant confirmed that she visited Australia from 12 April 2001 to 21 July 2001, before she knew the sponsor, and that she applied for but was refused Visitor visas in 2016 and 2017. The visa applicant further confirmed at hearing that she has a Bachelor of Political Science degree and has worked for a Non-Government agency in Budapest, Strasbourg and Scopje, and that she has worked as a translator. She stated that she gave up ‘a good position’ when she applied for the visa because she felt unable to sign another employment contract when she was migrating to Australia. When asked why she wasn’t working at the time of the hearing, as the refusal was two years ago and the parties had no income, the visa applicant stated that she could not find suitable employment in her hometown where she and the sponsor are living with her parents. She acknowledged that she could find employment appropriate to her qualifications and experience in Scopje, but argued that she would have to pay rent, which was expensive.

24. The visa applicant stated that she was fully aware of all of the sponsor’s offences; that he had shown her his police record. The Tribunal asked the visa applicant what she meant by ‘more opportunities’ for the parties in Australia; whether she was aware that the sponsor had not been in paid employment for eight years, since 2011. She stated that she was aware that he had worked in the past as a stonemason, suffered chronic back pain, and had been on a disability pension for some years when they met. She stated that the sponsor has ‘changed’ and she believed he would move back into employment, possibly into a supervisory position, on his return to Australia. The sponsor did not claim and the Tribunal does not consider it reasonable to assume that he would move into a supervisory position on return to Australia.

25. The Tribunal does not consider it reasonable to approve the sponsorship because of the parties’ employment situation.

26. The sponsor made several requests to the Tribunal for priority processing. In his request received by the Tribunal on 26 December 2017 the sponsor stated:

    ‘First of all our biggest problem and concern is the inability to fund our current living situation whilst living in the Republic of Macedonia. I could not stress enough that Me [sic] and my wife [the applicant] are severely suffering from not having sufficient funds to meet everyday living requirements.

    Another area of major concern is the lack of medical services available to us in the Republic of Macedonia being a third world European country. We suffered unfortunate circumstances when [the applicant] had a miscarriage due to the current situation and huge amounts of stress compiled upon us brought by the Visa refusal … I suffer from chronic back pain and I do not have access to the medication or treatment I receive in Australia that I require every day.

    The whole situation has denied me access to my own country where I was born. Under no circumstances would I leave my wife [the applicant] to return to Australia without her.

27. The Tribunal accepts that the sponsor wants to return to Australia and that the visa applicant wants to migrate to Australia, but does not consider their circumstances of living in stress and poverty for two years while waiting for the visa to be granted a reason to restore the sponsorship.

28. The sponsor claimed in a request for priority processing dated 2 December 2018 that his parents, in their early 70s, are in need of his and the visa applicant’s support; his mother in particular had health problems. A letter dated 25 June 2018 was provided by the sponsor’s sister in which she advised that her mother suffered from glaucoma; that she had had an angioplasty; and that she was scheduled for an operation on her jaw in July 2018. The sponsor’s sister argued that:

    ‘as I work full time in a senior role that is very time intensive and live in a different state with caring responsibilities of my own family, I am unable to care for her. My brother and his wife are very keen to provide care for her and look after her as she recovers from these operations but unfortunately because of the lengthy delays in hearing her appeal, they are unable to be with her’.

29. The Tribunal accepts that the applicant and her mother have not observed the sponsor to be violent; that they are unconcerned about the possibility of the sponsor behaving violently in the future; and that the applicant believes she could look after herself in Australia. The Tribunal considers however that their lack of concern is motivated at least in part by the prospect of the applicant achieving a migration outcome through her relationship with the sponsor.

30. The sponsor confirmed at hearing that he has not returned to Australia since his departure on 14 April 2017, in order to see his mother and care for her following her operations. At hearing the sponsor stated that this was because he was unprepared to return to Australia even temporarily without the visa applicant. The Tribunal accepts that the sponsor’s mother has experienced health issues but considers the sponsor’s family obligations have been exaggerated for the purpose of the review, and does not consider them a reason to overturn the sponsorship refusal. The Tribunal notes that the sponsor’s mother has a husband and a daughter, albeit busy with work and her own family, in Australia.

31. The visa applicant and her mother stated at hearing that they knew all about the sponsor’s convictions, including for stalking. They stated that the sponsor has not shown any signs of violence. The visa applicant stated that she feels totally safe with the sponsor and in any event is capable of taking care of herself. Her mother provided to the Tribunal a written statement, received on 19 August 2019, in which she states:

    I love [the sponsor] like my own son. I know everything about his former life which we accept as we do not keep any secrets about each other. [The sponsor] is a very attentive, responsible, cultured, good man, always ready to help anyone. I know he will be a very good father just like a very good husband’.

32. The sponsor claimed at hearing that he has never been physically violent towards any woman; that the actual physical violence he was involved in and sentenced for was directed at police officers and exaggerated by them. The Tribunal does not accept that violence directed against police officers is less significant in terms of r.1.20KC(3) than violence directed against women.

33. In a written statement dated 25 August 2019 the sponsor pointed out that he has not re-offended in any way since his last sentence. He stated that he would never do anything to jeopardize his relationship with the applicant. He provided a police clearance from Macedonia. He provided a Certificate of Attendance issued on 21 July 2016 confirming that he attended a six-session group drug education and relapse prevention program. He provided photographs of himself together with the visa applicant and her mother in Macedonia, in which they all appear happy together.

1. The Tribunal accepts and has considered that the visa applicant and her mother know about the sponsor’s past and that they support the sponsorship. The Tribunal accepts and has considered that the sponsor has not re-offended since his marriage to the visa applicant. The Tribunal, however, considering the number and nature of the sponsor’s convictions; his reoffending; and the short period of time between his last offence and the visa application, is not satisfied that the sponsor is reformed.  The Tribunal is not satisfied on the basis of the claims of the interested parties: the sponsor, the visa applicant and the visa applicant’s mother, that the sponsor has changed and that he poses a level of risk low enough to justify approving the sponsorship.  

2. On the evidence before it, the Tribunal does not consider it reasonable to grant the sponsorship. Therefore r.1.20KC(3) applies and cl.309.222(1) is not met.

3. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

   DECISION

4. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

   Adrienne Millbank
   Member