Krstevska (Migration)

[2018] AATA 1530

Krstevska (Migration) [2018] AATA 1530 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Daniela Krstevska

VISA APPLICANT:  Mr Darko Krstevski

CASE NUMBER:  1516929

DIBP REFERENCE(S):  OSF2015/038036

MEMBER:John Billings

DATE:11 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.

Statement made on 11 April 2018 at 4:37pm

CATCHWORDS

Migration – Extended Eligibility (Temporary) (Class TK) visa – 445 (Dependent Child) – Definition of 'Dependent Child' not met – Vague and contradictory evidence

LEGISLATION

Migration Act 1958, s. 65

Migration Regulations 1994, r1.03, r1.05A, cl.445.211, 445.222

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 6 November 2015 to refuse to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (“the Act”).

2. The visa applicant (“Darko”) applied for the visa on 25 September 2015. The delegate refused to grant the visa on the basis that she was not satisfied that, at the time he made the visa application, Darko was a dependent child of his father, Mr Ivica Krstevski, within the meaning of the Migration Regulations 1994 (“the Regulations”). The delegate therefore found that Darko did not satisfy cl.445.211 of the Regulations.

3. The review applicant, Ms Krstevska, is the sponsor for the visa.  Ms Krstevska is married to Darko’s father.  She is an Australian citizen born in FYR Macedonia.  Ms Krstevska applied for review on 8 December 2015.  She provided a copy of the primary decision to the Tribunal.  Among other things, the primary decision notes that Darko was interviewed by telephone in October 2015 with the assistance of a Macedonian interpreter. 

4. Ms Krstevska appeared before the Tribunal on 22 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Krstevski and, by telephone, from Darko.  The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages.

5. The Tribunal allowed Ms Krstevska time after the hearing to provide further material in support of the application and the Tribunal received the material in June 2017.

6. The review has been reconstituted in circumstances where, since the hearing, the member who constituted the Tribunal has ceased to be a member.  The Tribunal has had regard to the record of the proceeding.  Among other things, the Tribunal has listened to the hearing recording.  

7. Darko is a 21 year old national of FYR Macedonia.  At the time the visa application was lodged he was aged 18 years and was living with his mother, Mr Krstevski’s ex-wife, and younger sister, Marija, in Skopje in a house owned by his mother.  Marija was not included in the visa application.  Darko’s mother’s name is Ms Grozdanka Krstevska (“Darko’s mother”).  Darko is a full time university student.  He is studying a physical education course.  He enrolled in the course August 2015, the month before the visa application was lodged.  He is not employed.          

8. Mr Krstevski is a 48 year old national of FYR Macedonia.  Mr Krstevski first arrived in Australia on 9 March 2013 holding a Class TR Subclass 676 Tourist visa.  Mr Krstevski and Darko’s mother were divorced not long before Mr Krstevski came to Australia.  Mr Krstevski currently holds a Class UK Subclass 820 Partner visa granted on the basis of his relationship with Ms Krstevska.  He was not working at the time Darko applied for the visa but since then he has obtained employment as a real estate marketing assistant. 

9. Ms Krstevska owns one or more businesses in Melbourne.  She has two young children in Australia by a former relationship. 

10. The Department’s file includes statements for Mr Krstevski’s and Ms Krstevska’s Australian joint bank account for the period April to September 2015 and a printout, in Macedonian, apparently relating to online supermarket purchases made from February to September 2015.

11. The material submitted to the Tribunal includes statements for Mr Krstevski’s and Ms Krstevska’s bank account for April 2015 to January 2017; statutory declarations made by Mr Krstevski and Ms Krstevska on 8 June 2017; letters by Darko (in English) dated 15 March and 7 June 2017; declarations by Darko’s mother, one dated 12 May 2017 and a later one that is undated; a property tax notice and Macedonian bank statement in Darko’s mother’s name; various invoices and receipts; and general cost of living information for Macedonia (estimating monthly living costs at about $A1,900 for a family of four in Skopje, exclusive of rent). 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether at the time Darko applied for the visa he was a dependent child of Mr Krstevski.

14. Clause 445.211 of the Regulations includes the time of application criterion that the applicant be a dependent child of a visa-holding parent. The parent will be a “visa-holding parent” if he or she holds a Subclass 820 visa, which Mr Krstevski does. The criteria to be satisfied at the time of decision include that the applicant continues to be a dependent child of the visa-holding parent: cl.445.222.

15. Regulation 1.03 defines a “dependent child” of a person to include a child who has turned 18 and is dependent on that person.  Regulation 1.05A relevantly provides that a person (“the first person”) is dependent on another person if at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)      the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter …

16. In summary, the approach that Darko and his family take in seeking to show that he is a dependent child of Mr Krstevski is essentially to point to Darko’s mother’s income and expenses and to Darko’s expenses and to assert that once Darko’s mother’s expenses are taken into account she has insufficient funds to provide for Darko and that instead Mr Krstevski provides for him. 

17. For reasons that follow the Tribunal is not satisfied that at the time Darko applied for the visa he was a dependent child of Mr Krstevski. 

18. In his letter dated 15 March 2017 Darko said that his mother’s monthly salary is MKD (Macedonian denars) 23,000 (approximately $A524.00 at the date of the letter, according to Darko) and that she pays about MKD 17,000 (per month, he said by implication) on car expenses and utility bills, leaving her with MKD 6,000 (approximately $A137.00) for expenses such as “food, clothes, school fees etc.”.  Darko said that as a university student he has to buy textbooks for each subject (about MKD 1,000 each) and has to pay for each exam, travel expenses, meals and clothes.  He said he also has to have a social life.  He said that university fees are MKD 12,300 per semester plus about MKD 6,000 for insurance and exam fees.  He said that if he was dependent on his mother he would not be able to attend university, buy clothes, have a social life, go for his driver’s licence, or even have food sometimes.  He said that his mother provides him with shelter but “that’s about all she can do for [him]”.  Darko said that Mr Krstevski’s and Ms Krstevska’s bank statements show that on average Darko withdraws $A700.00 per month from their account.  He said that he also withdraws $A228.00 per month child support for his sister, which he gives to his mother.  He added that his father has provided him with two computers, a number of mobile phones, birthday presents in the form of money, and money for annual holidays. 

19. In her first declaration Darko’s mother set out similar figures including her monthly salary and expenses.  She said that the “only thing” she can provide Darko is accommodation in the house that Mr Krstevski built and left for her and the children.  She said that all other expenses are born by Mr Krstevski.  Darko’s mother said that her means are insufficient to enable Darko to pursue his education or have the social or cultural life that a young man of his age should have.  In her later declaration Darko’s mother referred further to her financial situation, including bank overdrafts she has, to her expenses, and to her health.  She said she needs MKD 25,000 per month “for food and hygiene” so Darko “is obliged to contribute with at least 50% to the monthly costs for providing food for the family”.  Darko occasionally procures food at the market for which Mr Krstevski pays.  Most often Darko covers the cost in cash.  Darko also contributes 50% for utilities costs.  Darko’s mother said she cannot cover his costs for university fees, clothes, outings, vacations, or visits to the gym.  She said that Darko is totally financially dependent on Mr Krstevski. 

20. In his letter dated 7 June 2017 Darko re-stated his mother’s monthly salary and expenses and his university costs.  Darko said that he contributes about 50% towards the payment of utilities bills and maintenance of the home.  He said he spends about $A195.00 per month on food and groceries “plus on-line orders that [Mr Krstevski] pays for directly”.  He said that he pays for all his meals at university, about $A98.00, and transport, about $A49.00 (per month he said by implication).  Darko said that Mr Krstevski also provides him with all funds necessary for all his clothes and personal items, amounting to $A122.00 per month on average. 

21. Before mentioning some important information set out in the primary decision the Tribunal notes that in his letter dated 15 March 2017 Darko said that his responses - recorded in “the refusal letter” (the primary decision) - to questions put to him at interview are not accurate and that this might be “due to the fact that [he] was not provided with a qualified [i]nterpreter in the Macedonian language”.

22. The primary decision records in particular that Darko informed the Department that he was residing with his mother and sister in accommodation owned by his mother.  He said that his paternal uncle and aunt and his paternal grandparents were living on the same block, in different apartments.  Darko’s father was supporting the family financially with MKD 20,000 per month which they used primarily to pay household expenses, petrol, food and clothes.  Darko informed the Department that his father’s visa did not permit him to work in Australia so most of the money came from the sponsor.   He said that the family had access to Mr Krstevski’s and Ms Krstevska’s bank account through an ATM card which they used to withdraw money in Macedonia.  He said that half the sum was child support as determined by “the court” while “the supplementing amount” was to cover additional expenses such as tuition fees. 

23. The primary decision further records that in his application for the Subclass 820 Partner visa Mr Krstevski “made no statements in relation to [Darko] being dependent on him only advising ‘the next priority is for [the children] to come to Australia and become part of the family’”. 

24. In relation to the last point, Darko said in his letter dated 15 March 2017 that his and his sister’s dependence on their father was something that did not have to be stated.  In relation to the point about the ATM card, Darko said in his letter that the primary decision notes that his mother had access to the ATM card but that what he said to the Department was that when he was “at school” or not able to withdraw money he sometimes gave his mother the card and asked her to withdraw money.   

25. In their statutory declarations made on 8 June 2017 Mr Krstevski and Ms Krstevska said that their financial support amounts to $A700.00 per month and goes towards Darko’s contribution to the payment of utility bills, food and groceries, all this expenses for clothes and personal items, meals while at university, public transport, and “school fees”. 

26. It may not be significant if Mr Krstevski did not specifically refer in his Partner visa application to his children as his dependents.  What is significant is that important aspects of the evidence are vague and contradictory.  The contradictions cannot be explained by problems in interpretation in October 2015 if there were problems.  It is not merely that Darko stated that “about all” his mother could do was provide accommodation whereas his mother stated it was the “only thing” she could provide.  For instance, regarding the provision of food, Mr Krstevski told the Tribunal that “maybe” Darko’s mother bought and prepared food sometimes but he said that he provided more.  Elaborating on the point he said that sometimes Darko called him to say he had woken up and found no food in the fridge and so asked for money; at other times Darko was out somewhere and asked him for money for food.  In his letter dated 15 March 2017 Darko said among other things that if he were dependent on his mother he would not even have food “sometimes”.  Further in his oral evidence to the Tribunal Mr Krstevski said that most of the time Darko purchased food “for everyone” from the money he, Mr Krstevski, sent.  When Darko gave oral evidence he said that at the time he applied for the visa his mother was buying food but that was not enough and he was buying food online and his father was paying.  He said that the food his mother bought was not enough because she would cook one meal and there would be leftovers for the next few days.  Darko said that he was spending MKD 2,000-3,000 on each food order, sometimes two or three times per month. 

27. Mr Krstevski told the Tribunal he gave Darko $A700.00 per month that was used for everything – for instance, if Darko went out and needed a bus or taxi; for travel every day to university; for food, books, excursions, or buying presents for his girlfriend.  He also said that sometimes he would pay for Darko’s online shopping.

28. At this point the Tribunal refers further to the Mr Krstevski’s and Ms Krstevska’s bank statements and the printout for online supermarket purchases.  None of these documents contain records earlier than February 2015.  The bank statements contain entries including numerous withdrawals made in Macedonian denars.  The accounts for April to June 2015 commence at 21 April.  There are no relevant entries in April but approximately $A1,000.00 was withdrawn in May and June - $A500.00 per month on average.  From June 2015 onwards the monthly average sums have been higher - mostly if not entirely more than $A700.00 per month.  The withdrawals are not regular: a number are below $A25.00; a number are for hundreds of dollars.  The printout for online supermarket purchases is untranslated but appears to show deliveries from February to September 2015 in the total sum of about MKD 27,000 (about $A700.00 at current rates). 

29. The Tribunal was told that the bank withdrawals were made from the time that an ATM card was made available to Darko and that, prior to that, transfers were made to him via Western Union.  Discussing the lack of receipts Ms Krstevska told the Tribunal in effect that Western Union would issue receipts for the three most recent transactions only.  In their statutory declarations made after the hearing Mr Krstevski and Ms Krstevska said that money was transferred using Western Union (agent locations mostly, sometimes online). 

30. No Western Union transfer receipts or online records have been provided to the Department or to the Tribunal.  There was no evidence, either, of bank statements prior to April or May 2015 that might show withdrawals of funds in Australia used for international transfers.  This is despite the fact that at the hearing the Tribunal pointed out a number of deficiencies in the evidence and indicated that it was giving Ms Krstevska the opportunity to provide further material after the hearing including, specifically, evidence of Western Union transfers.

31. Before proceeding the Tribunal emphasises that to determine this case it must ultimately focus on the issue as at 25 September 2015, the date of the visa application. 

32. The Tribunal will soon focus on the issue as at the date of the visa application.  The Tribunal first notes that even if the questions were simply whether Darko is (now) wholly or substantially reliant on Mr Krstevski for financial support to meet his basic needs for food, clothing and shelter, and whether his reliance on his father for that is greater than any reliance by him on any other person, or source of support, the Tribunal could not be satisfied about these matters on the evidence that has been provided.  The reason is because the evidence is so vague and contradictory.  The assertion that Darko’s mother does not earn enough to meet his needs falls short of establishing that he is wholly or substantially reliant on his father and that his reliance on his father is greater than his reliance on his mother or other source of support, remembering that the issue involves reliance for financial support to meet the basic needs for food clothing and shelter.   

33. Darko’s mother owns the house so it is she who has been providing shelter to Darko. 

34. The Tribunal accepts that since May 2015 substantial withdrawals have been made in Macedonia from Mr Krstevski’s and Ms Krstevska’s bank account.  The statements do not show who has made the withdrawals.  Even if Darko has made most of the withdrawals, the precise purpose for the withdrawals is unclear and the evidence does not show which member or members of the family benefitted and in what proportions. 

35. To the extent that Darko has been contributing at least 50% towards the family’s food costs, as his mother has declared, it appears that what he receives from his father has been shared with other family members.  At least by implication it is said that the other 50% or thereabouts has been contributed by Darko’s mother.  Of itself this would tend to show that Darko’s mother has been providing food to Darko.  The oral evidence given by Darko and Mr Krstevski is a further indication that Darko’s mother has been providing food to Darko even if Mr Krstevski has enabled Darko to supplement that. 

36. Viewed generally, the evidence indicates that Mr Krstevski (with Ms Krstevska) has been supporting the whole family financially.  The evidence further indicates that a substantial proportion of what Mr Krstevski has been providing for Darko’s personal use has been not for his basic needs but rather has been for his education, transport, holidays, entertainment and gifts.  Correspondingly, while Darko’s mother has asserted that Darko is totally dependent on his father - an assertion that not supported by the general evidence - in her first declaration she said that her means are insufficient to enable Darko to pursue his education or have the social or cultural life that a young man of his age should have.  These are not Darko’s basic needs. 

37. In relation to clothing, it is claimed that Darko’s clothing has been paid for by his father but no receipts for clothing or other evidence has been submitted that would specifically support that claim.   

38. It may be that Darko’s mother’s income would not enable her to fund Darko’s education, transport, holidays and entertainment at the level he has enjoyed if her income would enable to fund that at all.  It may therefore be that Darko has had those things only because he has received money from his father.  On the other hand, Darko’s mother’s bank statement suggests that by overdrawing she has in effect supplemented her income, which may or may not significantly affect the matter.

1. On the evidence before it, the Tribunal would not be satisfied that Darko is wholly or substantially reliant on Mr Krstevski for financial support to meet his basic needs for food, clothing and shelter, and that his reliance on his father for that is greater than any reliance by him on his mother or any other source of support.  These are actually not the questions for the Tribunal, however. 

2. The questions for the Tribunal are the following three questions.  As at 25 September 2015 -  the date on which Darko applied for the visa - first, was Darko wholly or substantially reliant on Mr Krstevski for financial support to meet his basic needs for food, clothing and shelter; secondly, had Darko been for a substantial period immediately before that time wholly or substantially reliant on Mr Krstevski for financial support to meet his basic needs for food, clothing and shelter; and, thirdly, was Darko’s reliance on Mr Krstevski greater than any reliance he had on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter?   

3. For essentially the same reasons as those given above, the Tribunal is not satisfied in relation to the first and third questions.  But, for the following reasons, even if the Tribunal were satisfied in relation to the first and third questions, the Tribunal could not be satisfied in relation to the second question. 

4. The earliest entry in a document relating to funds said to have been provided by Mr Krstevski is for February 2015.  That is in the document relating to online supermarket purchases.  The document shows purchases averaging about $A100.00 per month.  The document does not enable the Tribunal to tell what proportion of the supermarket purchases was for food or what proportion spent on food was for Darko’s use.  The evidence about the bank withdrawals is unclear as to who made withdrawals, what the purposes were, and who benefitted and in what proportions.  The first record of a withdrawal is dated May 2015.  It is claimed that Western Union transfers were made to Darko prior to the time he had access to the ATM card and made bank withdrawals but no documentary evidence has been submitted in relation to any transfers or withdrawals prior to May 2015.  This is despite the further opportunity given.  The failure to provide that evidence has not been satisfactorily explained.  February 2015 was just seven months before the date the visa application was lodged and May 2015 was just four months before that date. 

5. Government policy set out in PAM3 indicates that a “substantial period” is usually taken to mean at least 12 months.  The Tribunal may have regard to the policy but is not bound by it.  The Tribunal considers that four months or even seven months would not be a substantial period for this purpose. 

6. The Tribunal observes, incidentally, that while Darko had turned 18 by May 2015 the date of his university enrolment was in August 2015.  This would likely affect the calculations.  The real problem, though, is the lack of evidence for the period prior to the date of the visa application.    

7. On the evidence before it the Tribunal is not satisfied that - as at 25 September 2015 - Darko had been for a substantial period immediately before that time wholly or substantially reliant on Mr Krstevski for financial support to meet his basic needs for food, clothing and shelter.

8. The Tribunal’s conclusion is that Darko does not meet the requirements of cl.455.211. 

9. For these reasons Darko does not satisfy the criteria for the grant of the visa.   

10. Subclass 445 is the only Subclass in Class TK.    

    DECISION

11. The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.

    John Billings
    Senior Member