Lopatina (Migration)

[2017] AATA 496

Lopatina (Migration) [2017] AATA 496 (22 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Svetlana Lopatina

VISA APPLICANT:  Mr Alexander Chaun

CASE NUMBER:  1606813

DIBP REFERENCE(S):  OSF2015/032889

MEMBER:Kira Raif

DATE:22 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 22 March 2017 at 9:58am

CATCHWORDS

Migration – Partner (Provisional)(Class UF) visa – Subclass 309 – Not genuine – Relationship not genuine and continuing – Conflicting evidence – Marital status with former wife – Credibility

LEGISLATION
Migration Act 1958

, ss 5F - 5F(2)(a)-(d) - 65

Migration Regulations 1994

, Schedule 2 – cl 309.211 cl 309.211(2)– cl 309.221 - r.1.15A(3)

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 20 April 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 the Russian Federation, born in December 1947.  He made the application for the visa in October 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 and cl. 309.221 because the delegate was not satisfied the 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 13 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the visa applicant’s daughter. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 visa applicant provided with his application evidence that he and the sponsor registered marriage in Australia in September 2015. There is nothing to indicate 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 acknowledges that a substantial amount of documentary evidence has been presented with the application and to the Tribunal, which seeks to address the various aspects of the relationship. However, the Tribunal is of the view that such documents and evidence can be obtained even if the relationship is not genuine. For example, the applicant provided a substantial amount of Skype records, which merely show the video calls being made but do not show the depth or the nature of communication. The fact that the parties communicate with each other does not necessarily indicate their commitment to the relationship. There are letters addressed to the visa applicant at the review applicant’s address, such as bank statements. However, the visa applicant does not live in Australia and the fact that he has given the review applicant’s address to the bank does not necessarily mean that the couple did live together or that they have established a joint household. The Tribunal does not consider the documentary evidence to be dispositive of the issues at hand.

9. The Tribunal has considered the nature of the household. The review applicant’s evidence to the Tribunal is that they formed the relationship in June 2015. She spent about a week in the visa applicant’s home when visiting Russia and lived together when the visa applicant visited Australia in July 2015. Since that time, they claim to have spent a few weeks together whenever the visa applicant visited Australia and they also travelled overseas together. The Tribunal is prepared to accept that the applicant and the sponsor lived together during the various trips. The Tribunal finds that the amount of time they have spent together is not significant.

10. The Tribunal has considered the financial aspects of the relationship. The review applicant provided to the Tribunal evidence of a joint account at NAB. A letter from the bank, submitted on 21 March 2017, shows it was opened in August 2015, during the visa applicant’s brief visits to Australia. The account shows several expenses and limited deposits. The Tribunal is mindful that the visa applicant does not live in Australia. He has no income in Australia and no expenses in Australia. There appears to be no need for him to have or operate a bank account in Australia. Both the visa applicant and the review applicant explained to the Tribunal that the visa applicant insisted on opening the account during his visit to Australia so that he could provide the review applicant with financial support in case something happens and also because he did not want to carry cash. The Tribunal is mindful that the visa applicant could have easily provided the review applicant with financial support through money transfers without the need for an account.

11. The review applicant’s evidence to the Tribunal is that the visa applicant transfers money almost monthly. She presented bank statements to the Tribunal which show cash deposits but no evidence that the cash deposits were made by the visa applicant. The transfers from the visa applicant which identify him on the bank statements are very limited. The review applicant explained that the cash deposits were made when the visa applicant was in Australia. The Tribunal is of the view that if the visa applicant wanted to provide financial support to the review applicant when he was in Australia, he could have given her the money for daily use, rather than place the money into the bank. If the account was used for the visa applicant to have access to funds in Australia, there was no need for the account to have been opened in joint names. The Tribunal is concerned that the bank account and the deposits were made for the purpose of establishing evidence in support of the visa application. The Tribunal is not satisfied the joint account represents the sharing of resources.

12. The Tribunal questioned the parties about their financial plans for the future. The review applicant told the Tribunal that if the visa applicant is granted the visa, he will not sell his business but will benefit from the ongoing profits in that business. However, the visa applicant told the Tribunal that he plans to sell his share of the business. When asked to comment on that information, the review applicant said that they never discussed it. It is of concern to the Tribunal that the parties do not appear to have discussed their future together.

13. Similarly, both the visa applicant and the review applicant told the Tribunal that the visa applicant plans to run a business in Australia. The review applicant referred to a business growing plants. The visa applicant said he has not given this much thought yet but he hopes to run the same business as he does now, in cloths retail. The review applicant explained to the Tribunal that the visa applicant has no knowledge about Australia and she considers a plant business would be better. The Tribunal’s concern is not with the type of business the visa applicant plans to run but with the couple’s failure to discuss their future together. In the Tribunal’s view, that may indicate that they do not view their relationship as a long term one.

14. There is no evidence that the couple have joint ownership of assets or joint liabilities. The Tribunal has formed the view that the pooling of financial resources is, at best, minimal. There are no legal obligations owed to other party and the Tribunal is not satisfied there is sharing of daily expenses, although the Tribunal is prepared to accept that the parties may have pooled their funds when they are together and that the visa applicant has provided some financial support to the visa applicant.

15. The Tribunal has considered the social aspects of the relationship. The Tribunal acknowledges there are a number of written statements from third parties and the visa applicant’s daughter gave oral evidence to the Tribunal. The review applicant’s evidence to the Tribunal is that the children are aware of the marriage but she has no friends and has not told anyone about the marriage. She said she does not have a good relationship with her immediate family and has not introduced her son and her husband, even though the son is aware of the marriage. The review applicant said the visa applicant informed others about the marriage. However, according to the primary decision record, the visa applicant informed the Department that he and his ex-wife ‘maintain a façade of still being married’, which would suggest that he did not inform others about this marriage at least until after his application was refused. The Tribunal accepts that there is some recognition of the relationship but finds that such recognition is very limited beyond immediate family members. The Tribunal is not satisfied that the applicant and the sponsor represent themselves to others, beyond immediate family, as being married to each other. The Tribunal is not satisfied that friends and acquaintances are aware of the relationship or view it as a genuine one. The Tribunal accepts, having regard to the photographic evidence, that the couple had undertaken joint social activities and the Tribunal also acknowledges that their children are aware of the relationship and appear to be supportive. 

16. The couple claim their committed relationship started around June 2015 and the sponsor proposed when he travelled to Australia in August 2015. To date, the relationship has existed for a period exceeding one and a half years. The Tribunal accepts that the couple had frequent and lengthy communication with each other and records of their conversations had been provided to the Tribunal. They displayed broadly good knowledge about each other in oral evidence and the Tribunal accepts that they communicate frequently. They also spent time with each other during the visa applicant’s visits to Australia and had undertaken joint travel. The Tribunal is prepared to accept that there is some degree of emotional support being provided by the partners.

17. However, the Tribunal has also formed the view that the parties’ knowledge about some aspects of their lives was limited. Thus, the review applicant had little knowledge about the visa applicant’s son. She said the son lives in the US but did not know whether he planned to remain there permanently or temporarily. She did not know what the son does on a daily basis. The review applicant’s evidence is that the visa applicant has close contact with his son and she also claims to have direct contact with the son and the parties claim there is a close relationship with children, yet the review applicant said she never asked the son about his plans or his employment.

18. Similarly, the review applicant had little knowledge about the visa applicant’s previous marriage. She was aware that they married and separated and re-married but had little knowledge otherwise about the circumstances of that marriage. She could not explain why the visa applicant separated and resumed his relationship with his wife. The review applicant did not know when the visa applicant separated from his former spouse.

19. The Tribunal finds other aspects of the relationship problematic. The Tribunal is concerned about the haste with which this relationship developed. Although the parties claim they knew each other since 2011 and had some contact with each other via Skype, they do not claim to have any relationship with each other during that period and before June 2015 when the review applicant travelled to Russia and stayed one week with the visa applicant. Their evidence is that the visa applicant proposed when he travelled to Australia in August 2015, only two months later. The Tribunal acknowledges the parties’ evidence that they were no longer young and needed emotional support but there is no reason they could not have spent more time with each other before committing to the relationship to get to know each other better.

20. The parties’ evidence is that the visa applicant proposed at the airport when he arrived in Australia on 22 August 2015. The review applicant told the Tribunal they had no conversation about the marriage prior to the visa applicant’s entry to Australia. Their marriage was registered on 24 September 2015 and in order to give at least a month’s notice under the Australian law, the couple must have found the celebrant and completed the paperwork within a day of the visa applicant’s entry to Australia. Such haste is, in the Tribunal’s view, inexplicable. It is also problematic, in the Tribunal’s view, that the visa applicant left Australia within three days of registering marriage. The review applicant told the Tribunal that was not right and he left the country several weeks later but the visa applicant’s movement records indicate he departed Australia within three days of the marriage. (The Tribunal discussed this information with the review applicant pursuant to s. 359AA of the Act and she subsequently confirmed that she made a mistake and that the visa applicant did depart Australia earlier.) The visa applicant explained to the Tribunal that he had business commitments and had to leave Australia. However, the parties’ evidence is that he divorced his former spouse before entering Australia and the review applicant said that he arranged the divorce because he met her. He proposed at the airport. That it, by the time the visa applicant was preparing his visit to Australia, he would have already decided to commit to the relationship with the review applicant, propose and register marriage in Australia. It is inexplicable, then, that he would decide to spend such a short period of time in Australia. The Tribunal is not satisfied he could not have rearranged his work commitments to enable him to remain in Australia longer.

21. Another aspect of the relationship which the Tribunal considers to be problematic relates to the visa applicant’s relationship with his former spouse. The review applicant provided to the Tribunal a copy of the primary decision record. It refers to the visa applicant’s previous visitor visa application. The primary decision record indicates that the visa applicant previously applied for Visitor visas to travel to Australia at the same time as his former spouse, despite the claim that they had been separated for many years. The review applicant explained to the Tribunal in oral evidence that it was cheaper for them to travel together but she could not explain why it would be cheaper for them to travel together and the Tribunal does not accept that as a reason they wanted to travel together. In her written submission to the Tribunal of 21 March the review applicant claims that the visa applicant indicated that he was married on the application form because they had not yet divorced and he thought stating ‘married’ was more appropriate than ‘separated’. The Tribunal does not accept that an indication of being married, rather than separated, was more appropriate if the couple’s evidence is that the visa applicant had been separated from his former spouse for a number of years. That is the very meaning of the word ‘separated’.

22. The primary decision record also indicates that the visa applicant and his ex-wife made separate applications for Visitor visas in July 2015 even though the Immigration officer found the forms were completed by the same person. The decision record shows that the visa applicant indicated on the form that he was married, rather than separated. He explained this by stating he did not read English but the delegate notes the forms were in Russian. The visa applicant also stated initially that his ex-wife was not planning to travel to Australia, even though he gave her a reference in support of the visa. The review applicant suggested to the Tribunal that the travel agent made mistakes. The Tribunal is mindful that if the visa applicant makes a visa application, it is his responsibly to ensure the information he provides is correct and accurate. In the Tribunal’s view, these matters may suggest that the visa applicant is not a person of credibility and that he is willing to provide untruthful information to Immigration to assist with the visa process. 

23. In her post-hearing submission to the Tribunal the review applicant explains that the visa applicant was planning to travel and was not paying attention to his wife’s plans at the time and she subsequently decided not to travel. The Tribunal does not accept that evidence. The information in the primary decision indicates that the two applications were completed by the same person and the visa applicant gave a reference to his former wife. That would indicate that he was well aware of her plans to travel and had an active involvement in these plans by preparing the work reference. 

24. According to the primary decision record, the visa applicant told the interviewer that they were keeping a façade of maintaining relationship with his ex-wife. The review applicant explained that his marital status could affect the visa applicant’s business. It is unclear how the visa applicant’s marital status would affect his business and there is nothing in the decision record to indicate that they are ‘keeping the façade’ only in relation to the visa applicant’s employees. It is of concern to the Tribunal if the visa applicant does not disclose information about the present marriage to those around him but prefers others to believe that he and the ex-wife continue to be in a spousal relationship. This is particularly so as the review applicant claims their relationship ended many years ago. The review applicant argues in her post-hearing written submission to the Tribunal that the visa applicant did not wish to disclose personal information to others and should not be expected to do so. The Tribunal’s concern is not so much with the fact that the present relationship was not disclosed, although the Tribunal is mindful that social recognition of the relationship is a relevant factor, but with the fact that the visa applicant appears to have continued to represent himself to others as being in a relationship with his former spouse. That raises questions as to whether that relationship continued and the present relationship is not to the exclusion of all others.

1. The Tribunal has considered all the aspects of this relationship. The Tribunal acknowledges that the visa applicant made a number of trips to Australia, although the Tribunal is mindful that his daughter lives here and he has spent at least some time with his daughter. The Tribunal accepts that the partners spent time together and the Tribunal is prepared to accept that they lived together during these visits and their trips. The Tribunal accepts they communicate with each other regularly. The Tribunal accepts their immediate family members and some friends are aware of the relationship. The Tribunal accepts that there may be emotional support provided by the parties to each other. Against these considerations, the Tribunal notes that the partners spent limited time with each other and the Tribunal remains unconvinced by their explanations about the haste with which they made the decision to marry and made arrangements for the marriage. The Tribunal is not satisfied there is a meaningful sharing of resources. The Tribunal is concerned about the nature of the visa applicant’s relationship with his former spouse and the way in which that relationship is represented to others. The Tribunal is not satisfied the partners had a meaningful conversation about their future together and the Tribunal is not satisfied they view the relationship as a long term one. The review applicant’s submission to the Tribunal of 21 March does not alleviate the Tribunal’s concerns. While some aspects of the relationship point to its genuine nature, others do not.

2. Having considered the totality of evidence, the Tribunal is not satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied they live together or do not live apart on a permanent basis.

3. The Tribunal acknowledges the review applicant’s evidence that if they did this for the visa, the visa applicant has other options as his daughter could sponsor him for an Australian visa. The Tribunal is unable to assess the visa applicant’s visa opportunities in other categories but the review applicant’s assertion that the visa applicant has other options of migrating to Australia is not sufficient to overcome the Tribunal’s concerns set out above.

4. The Tribunal is not satisfied the applicant is the spouse of the sponsor. The visa applicant does not meet cl. 309.211(2). As the parties are validly married, there is no suggestion that they intend to marry, for the purpose of cl. 309.211(3). The Tribunal is not satisfied the visa applicant meets cl. 309.211 and cl. 309.221.

   Conclusion

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

   DECISION

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

   Kira Raif
   Senior Member