SARAI (MIGRATION)

[2017] AATA 961

SARAI (MIGRATION) [2017] AATA 961 (30 MAY 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jovan Sarai

VISA APPLICANT:  Ms Ivana Mijic

CASE NUMBER:  1616050

DIBP REFERENCE(S):  BCC2016/2924472

MEMBER:Louise Nicholls

DATE OF DECISION:  30 May 2017

DATE CORRIGENDUM

SIGNED:27 June 2017

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

the paragraph numbered 37 is deleted, the number of the final paragraph then becomes 37 and there is no paragraph numbered 38.

Louise Nicholls
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jovan Sarai

VISA APPLICANT:  Ms Ivana Mijic

CASE NUMBER:  1616050

DIBP REFERENCE(S):  BCC2016/2924472

MEMBER:Louise Nicholls

DATE:30 May 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 30 May 2017 at 10:10am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – Genuine temporary entrant – Visiting de facto partner – Enrolment for studies in Serbia – Previous joint holidays to several countries – Family members previously visited Australia – Intended future partner visa application – Offer to lodge a security

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 600.211, Condition 8503, r 2.05

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The visa applicant Ivana Mijic is a citizen of Serbia and is almost 27 years of age. She is seeking a sponsored visit visa to travel to Australia to spend time with her de facto partner, Jovan Sarai (49 years). Mr Sarai is the sponsor and review applicant in this review.

2. The review applicant is seeking a review of the decision made by a delegate of the Minister for Immigration on 28 September 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

3. The visa applicant applied for the visa on 2 September 2016. She provided a number of documents, including;

   ·Statutory declaration made by the review applicant on 9 September 2016.

   ·Bio data pages of the visa and review applicant’s passports.

   ·Letter from the review applicant to the visa applicant - 7 September 2016. 

   ·Proposed flight itineraries for the visa applicant from Belgrade to Sydney and return.(September to December 2016)

   ·Professional and property information relating to the review applicant.

   ·Lengthy email correspondence between the review and visa applicants.

   ·Photographs of the parties in various holiday destinations and copies of receipts for flights and travel.

   ·Declaration made by Zaklina Kis-Jocic on 21 September 2016 and English translation.

   ·Letter from the owner of Jovana Hairdressing Salon Belgrade and English translation - 9 September 2016.

   ·Statutory declaration regarding the de facto relationship by supporting witness - 8 September 2016.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211. The delegate was not satisfied that the visa applicant intended a temporary stay in Australia.

5. The application for review was lodged on 29 September 2016. The review applicant provided a number of additional documents, including;

   ·Submissions made by the review applicant; 16 October 2016, 23 November 2016 and 31 March 2017.

   ·Email from the review applicant - 16 November 2016.

   ·Copy of decision record - 28 September 2016.

   ·Declaration made by the visa applicant’s brother - 15 September 2016.

   ·Confirmation of visa applicant’s enrolment in a fashion design and brand management course in Belgrade- 10 March 2017

   ·Flight itineraries for the visa and review applicant’s travel to Sri Lanka October 2016.

   ·Letter from the applicant’s landlord in Belgrade.

   ·Photographs of the visa applicant and review applicant in various holiday destinations.

   ·Telephone call records between the visa and review applicant.

   ·Itineraries and electronic ticket receipts for the applicants’ previous holiday travel arrangements.

   ·Bank statements for the review applicant and the visa applicant, business documents relating to the review applicant’s legal practice, and the review applicant’s utility accounts.

   ·Application for Subclass 309 partner visa - 16 October 2016 and Acknowledgement of withdrawal of that application - 1 March 2017. 

   ·Letter from the review applicant to the visa applicant - 16 November 2016

   ·Visa applicant’s IELTS test scores.

6. The review applicant appeared before the Tribunal on 7 April 2017 to give evidence and present arguments. He gave evidence regarding his background, the visa applicant’s background, the purpose of the proposed visit and of the visa applicant’s intentions. The Tribunal found his evidence to be straightforward and credible. He also provided lengthy written submissions on the application for review.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION

8. 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.

9. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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.

    Background

11. The visa applicant is a citizen of Serbia and is almost 27 years of age. She is living with her brother in an apartment in Belgrade and claims to be currently enrolled in a fashion course at the Accademia Del Lusso of Florence, Belgrade campus. She commenced this 12 month course in March 2017 and the review applicant notes that there are relatively high costs and academic requirements associated with this course. This evidence is supported by a confirmation of the visa applicant’s enrolment in this institution.

12. The visa applicant is a freelance hair and makeup artist and has worked in the bridal and formal industry providing make up for weddings and other formal functions in Serbia.

13. The review applicant is 49 years of age and was born in Germany of Serbian parents. He moved to Australia when he was 18 years of age and is now a solicitor operating his own private practice in Sydney.

14. He married his first wife in 1996 and they have one son who is 20 years of age. He claimed that he and his first wife have been living separately and apart for the past 3-4 years although he only moved out of the former home on 5 March 2016. He intends to obtain a divorce now that the 12 month period of separation has elapsed.

15. The review applicant met the visa applicant on the internet in June 2013 and they met in person and spent time together in Singapore about 3 years ago. They have spent time together in Belgrade and in various holiday destinations such as Singapore, Bali, Italy, France and Spain. The review applicant provided copies of flight invoice details and itineraries to confirm this evidence. The couple keep in regular contact through the internet and other forms of electronic communication.

    Purpose and Duration of Visit

16. In the present case, the visa applicant seeks the visa for the purposes of visiting her de facto partner. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231. The Tribunal is satisfied that the purpose and duration of the proposed visit is consistent with the visa applicant having a genuine intention to stay temporarily in Australia for reasons set out below.

17. The application form requested a period of up to 12 months. At the Tribunal hearing the review applicant explained that this period was requested so that the visa applicant could travel to and from Australia during the 12 month period. The purpose of the visits was so that the couple could develop their relationship. The intention was that the visa applicant would visit Australia and spend more time with the review applicant in his home. He also stated that, as he operates a private legal practice he cannot leave Australia for long periods of time without some detriment to his practice.

18. The review applicant submits that the Department’s Policy Advice Manual (PAM 3) provides that it is acceptable for a person to apply for an FA 600 visa in order to be with their partner to maintain an established relationship. Further the policy guidelines note that an applicant who discloses a relationship should not be disadvantaged as a result of that disclosure.

19. The visa applicant has now enrolled in a 12 month course in Serbia. If she were granted the visa she would like a 12 month period to allow her to visit during study breaks.

20. The review applicant also noted that the visa applicant applied for another visit visa in November 2016 with a request for a 3 month visit but this request was also refused in January 2017.

    Compliance with conditions of last substantive visa

21. 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)). The visa applicant has not previously travelled to Australia and there is no evidence of non-compliance with visa conditions.

    Travel and migration history

22. The visa applicant’s travel history is consistent with the visa applicant intending to comply with conditions attached to a visit visa. The visa applicant has travelled outside Serbia to a number of countries together with the review applicant, that is, to Singapore, Indonesia, France, Italy and Spain. She has also travelled to Germany and Austria. There is no evidence she has breached the conditions of any permit to visit those countries.

23. Further the review applicant has provided evidence relating to the travel and visa history of immediate members of his family. The applicant’s father visited in 2000/2001 and 2004/2005 and his mother visited in 2002/2003. They appeared to have complied with conditions attached to their visas. The Tribunal has checked the Departmental movements’ records to confirm that evidence. The review applicant’s history of sponsorship suggests that he will encourage the visa applicant to comply with the conditions of any visa granted.

    Intention to comply with conditions and other relevant matters

24. 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.

25. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

26. The Tribunal is satisfied that the visa applicant does not have an intention to work or study whilst in Australia.

27. The evidence before the Tribunal indicates that the review applicant provides, and has been providing, the visa applicant with significant financial support for her living and educational expenses in Serbia. He has also paid for joint holidays and other entertainment expenses.

28. The evidence before the Tribunal indicates that the visa applicant is currently enrolled in a 12 month fashion course in Belgrade and intends to complete that course in 2017. The review applicant stated that the course has significant costs which neither he or the visa applicant wish to be “thrown away”. There is no evidence which would suggest that the visa applicant intends to work in Australia or that she needs to work whilst she is visiting the review applicant.

29. There is no evidence that the visa applicant intends to study whilst in Australia. The evidence indicates the visa applicant is currently studying a 12 month course in fashion in Belgrade and in these circumstances the Tribunal considers it is unlikely that the visa applicant intends to study in Australia during any proposed visit.

30. The Tribunal has considered whether strong personal ties with the review applicant might encourage the visa applicant to remain in Australia rather than returning to Serbia at the end of the permitted visit. However, the Tribunal accepts the evidence that the parties intend to apply for a partner visa and that they perceive that any breach of the conditions of a visit visa may not be in their long term best interests.

31. The evidence before the Tribunal indicates that the visa applicant applied for a partner visa then withdrew her application. The Tribunal accepts that the visa applicant withdrew the application because the couple took the view that they may not be eligible to apply for a partner visa on the basis of a de facto partnership as they had not cohabited for a total period of 12 months and were concerned that their application would be rejected on this basis. The review applicant explained that they are trying to arrange their lives to spend as much time together as possible and to strengthen their relationship before they resubmit their application.

32. The Tribunal has considered whether the visa applicant intends to apply for a partner visa whilst in Australia. If she did so she would breach one of the conditions which would be attached to her visa, that is, Condition 8503 which provides that she is not entitled to a substantive visa, other than a protection visa, while remaining in Australia. As condition 8503 would be attached to the proposed sponsored visit visa she could not, unless she was granted a waiver of this condition, apply for a partner visa whilst in Australia. A waiver of this condition is only available in prescribed circumstances as set out in reg. 2.05(4).

33. The review applicant made submissions that the couple would not do anything which might jeopardise any future partner visa applications or future visit visas and the Tribunal considers there is some strength in this submission. The review applicant has the means to travel and to pay for the visa applicant’s travel. He has explained that he cannot spend long periods away from his legal practice but wishes to spend more time with the visa applicant and the most practical means of obtaining this outcome is if she visits him in Australia as well as sharing some holidays overseas together. The Tribunal considers that in these circumstances the evidence suggests the visa applicant is unlikely to be involved in any breach of this condition or condition 8531 as it may not assist the parties in their partner application in the long term or future visits.

34. The country information on the situation in Serbia does not suggest that there is any current serious conflict or political upheaval which would encourage the visa applicant to remain in Australia after the end of any permitted stay[1].

    [1] DFAT Travel Advice Serbia >

    The review applicant gave evidence that he is prepared to lodge a security if required and provided financial statements showing that he had the financial means to provide a security bond.

35. Overall, and weighing the relevant factors the Tribunal is satisfied that the visa applicant 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 met.

36. For the above reasons the Tribunal is not satisfied that the visa applicant 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

37. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Louise Nicholls
    Senior Member