Varhelyi (Migration)

[2024] AATA 320

Varhelyi (Migration) [2024] AATA 320 (21 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Gabriella Varhelyi
Miss Dorka Kata Sandor

REPRESENTATIVE:  Dr Owen Harris (MARN: 0851294)

CASE NUMBER:  1932162

HOME AFFAIRS REFERENCE(S):          BCC2017/3501664 BCC2019/6177653 BCC2019/6177654

MEMBER:Donna Petrovich

DATE:21 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 visa:

·cl 820.211(2) of Schedule 2 to the Regulations

·820.221(1) of Schedule 2 to the Regulations

As the first named visa applicant meets the requirements for the grant of the Partner (Temporary)(Class UK) visa, it follows that the  secondary applicant also meet the requirements for the grant of visa.

Statement made on 21 February 2024 at 3:28pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship for 12 months before application made – international travel and work – considerable documentary evidence and supporting statements – member of family unit child – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211(2), 820.221(1)

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 Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 25 September 2017. The delegate refused to grant the visas on 12 November 2019.

2. The delegate made the decision on the basis that evidence of relationship 12 months prior to the application for Partner visa. The delegate was not satisfied based on the documents provided that the applicant and sponsor were in de-facto relationship for 12 months prior to application and further was not satisfied that compelling reasons exist in this case, and documents were not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

   Background

3. The applicant and sponsor met in Hungary and established a relationship, although they both worked internationally.  The applicant was living in Hungary with her children and the sponsor living between Australia and Hungary initially with his daughter.  The applicant and sponsor submitted that they had been together for 6 years prior to their application for visa. They commenced living together from late 2013 and early 2014, and had lived together for twelve months in June 2015, which was well in advance of the application date in 25 September 2017.

4. They have now lived together for over 7 years and have four children between them, they have one grandchild and have another grandchild on the way.  They now live together in Australia and have established their family and friendships in Australia.

5. On 14 February 2024 the Tribunal received considerable documentary evidence that provided new evidence of the ongoing and genuine relationship between the applicant and sponsor and provides the details and the time frame of the commencement of their relationship and when they commenced living together, and the time frames around their ongoing and continuous relationship.

6. The applicant and sponsor detailed the nature of their work which involved travel between Hungary and Australia and the time frames and travel details that substantiate their claim of a continuous relationship which was maintained whilst working internationally.  They lived together for (209 days in Australia the remainder in Hungary) in the four years prior to their application a total of 2 years in time spent living together as demonstrated in the table provide folio 001-014.  The table provided demonstrates the travel and time they spent together.

7. Other evidence provided established the voracity of their relationship and the duration of their time together prior to application and their continuous and ongoing relationship, and the care of their combined families. The Tribunal accepts that there are extensive submissions from their children and friend’s photos, bank accounts, communication including chat records, emails, power of attorney documents and bank details.

8. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   Evidence submitted

   ·     Gabriella’s story  folio     1 - 14

   ·     Attachment’s  folio     15-90

   ·     Gabriella’s children  folio     91-93

   ·     Andras story  folio     94

   ·     Form 888 Enka Abel  folio     95-97

   ·     Form 888 Agnes Horvath            folio     98-101

   ·     Form 888 Puskers  folio     102-104

   ·     Form 888 Rene Puskas               folio     105-107

   ·     Form 888 Sara Puskas                folio     108-110

   ·     Letter of support MUZSLAV Tamas (son)

   ·     Letter of support VARHELYI Zsuzsanna (daughter)

   ·     Photos prior lodgement               folio     115-118

   ·     Photos post lodgement                folio     119-131

   ·     Proof of Household  folio     132-159

   ·     Gabriella  folio     160

   ·     Dorka  folio     161

   ·     Andras  folio     162     

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations

    ·cl 820.221(1) of Schedule 2 to the Regulations

11. As the first named visa applicant meets the requirements for the grant of the Partner (Temporary)(Class UK) visa, it follows that the  secondary applicant also meet the requirements for the grant of visa.

    Donna Petrovich
    Member