Vashevnik (Migration)

[2018] AATA 5789

Vashevnik (Migration) [2018] AATA 5789 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Stanislav Vashevnik

VISA APPLICANT:  Miss Alina Khudaiberdieva

CASE NUMBER:  1710033

DIBP REFERENCE(S):  BCC2016/411508 OSF2016/046328 OSF2017/055469

MEMBER:Christine Kannis

DATE:14 December 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.211 of Schedule 2 to the Regulations

·cl.300.214 of Schedule 2 to the Regulations

·cl.300.215 of Schedule 2 to the Regulations

·cl.300.216 of Schedule 2 to the Regulations

·cl.300.221 of Schedule 2 to the Regulations

·cl.300.222 of Schedule 2 to the Regulations

Statement made on 14 December 2018 at 6:14 am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – time of application and time of decision criteria – parties genuinely intend to marry – parties intend to live together as spouses – long distance relationship – relationship issues – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 300.211, 300.214, 300.215, 300.216, 300.221, 300.222

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 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 January 2016. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 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.

3. The delegate refused to grant the visa on 4 April 2017 on the basis that the visa applicant did not satisfy cl.300.222 of Schedule 2 to the Regulations. The delegate decided that the sponsorship of the visa applicant was not in force because the review applicant had advised the Department on 3 April 2017 that the relationship had ended and that he wished to withdraw his sponsorship.

4. A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review.

5. The review applicant appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant satisfies the time of application and time of decision criteria. The time of application criteria include cl.300.211, cl.200.314, cl.300.215 and cl.300.216. The time of decision criteria include cl.300.221 and cl.300.222.

8. The review applicant is a 43 year old Australian citizen. The visa applicant is a 24 year old Russian national.

9. The parties met online in November 2014. They maintained contact and met in person for the first time in July 2015. 

10. The Department conducted phone interviews with the visa applicant on 25 February 2016 and with the review applicant on 12 July 2016.

    Does the visa applicant intend to marry an eligible person?

11. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

12. The Tribunal has sighted identity documents and is satisfied that at the time of application, the review applicant was an Australian citizen. Based on written and oral evidence before the Tribunal, the Tribunal is also satisfied at the time of the visa application, the visa applicant intended to marry the review applicant. It follows that the requirements of cl.300.211 were met at the time of application.

    Is the visa applicant sponsored as required?

13. Clause 300.213 requires that at the time of application the visa applicant was sponsored by the prospective spouse and that the prospective spouse had turned 18.  The review applicant is currently 43 years old. On 3 April 2017 the review applicant advised the Department that his relationship with the visa applicant had ended and on 4 April 2017 the visa was refused. On 9 May 2017 the review applicant sought a review of the decision to refuse the visa and advised the Tribunal that that he wished to “continue/ reinstate/reconfirm” his sponsorship of the visa applicant.

14. Clause 300.222 requires the sponsorship referred to in cl.300.213 has been approved and is still in force. Approval of sponsorship is subject to a number of limitations contained in the Regulations. There is nothing to indicate that any of these limitations are relevant in the present case.

15. Therefore, on the evidence before the Tribunal the requirements of cl.300.222 are met.

    Had the parties met and were they known to each other personally since each turned 18?

16. Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally. The Tribunal is satisfied, based on identity documents, travel documents, movement records from the Department, witness statements and photographs before it, that at the time of the visa application, the review applicant and the visa applicant had met and were known to each other personally since each turned 18. It follows that the requirements of cl.300.214 were met at the time of the application.

    Do the parties genuinely intend to marry?

17. Clause 300.215 requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period.

18. In written statements made by the parties at the time of application, they each indicated that they had decided to marry on 4 December 2016 in Australia.  A Notice of Intended Marriage dated 5 December 2016 from Margaret Collier, Registered Marriage Celebrant, was provided. The Notice indicated the intended marriage date had been amended to 17 September 2017 and that the marriage would take place in the Royal Botanical Gardens in Melbourne.  

19. A Notice of Intended Marriage dated 20 April 2018 from Jane Bartlett, Civil Marriage Celebrant, was provided. The Notice indicated the date the marriage is to be solemnised is on 2 December 2018 and the place the marriage will be solemnised is Fremantle, WA.

20. The review applicant told the Tribunal that he met with the celebrant a few months ago however no details regarding the wedding have been discussed with the visa applicant because of the uncertainty about her visa status. He said the wedding will take place in Perth and he expects his parents, brother and sister-in-law will travel from Melbourne to attend.  He does not know if his 13 year old daughter from a previous relationship will attend.

21. The Tribunal accepts that no specific plans have been made due to the uncertainty of when the visa application would be finalised.

22. The evidence of both parties was that they will marry shortly after the visa applicant arrives in Australia.

23. The Tribunal was satisfied that at the time of application the parties had a genuine intention to marry and satisfy the requirements of cl.300.215(a). The proposed date for the marriage is likely to be within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met.

    Do the parties genuinely intend to live together?

24. Clause 300.216 requires that at the time of application the parties genuinely intend to live together as spouses. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as 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).

25. In considering an application for a prospective marriage visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). Whilst it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.

26. The Tribunal considered the r.1.15A(3) matters.

    The financial aspects of the relationship

27. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including the extent of pooling of financial resources and any sharing of day-to-day household expenses.

28. During their respective phone interviews both parties said the review applicant provided financial assistance to the visa applicant because she was unemployed. Commonwealth bank statements for an account in the review applicant’s name were provided. The statements show the review applicant transferred money to the visa applicant in June 2015, May 2016, August 2016, October 2016, November 2016, December 2016, June 2017, July 2017, August 2017 and October 2017.  

29. The review applicant told the Tribunal that he sends the visa applicant about AUD$1,000 every three or four months. He sends her money to pay for her English lessons and to cover travel expenses. She is not employed and she lives with her parents.

30. The Tribunal accepts that the parties reside in different countries and that they have not established any joint financial arrangements. 

    The nature of the household

31. The Tribunal considered the evidence in relation to the nature of the household including the parties’ living arrangements and any sharing of housework.

32. The review applicant and the visa applicant both told the Tribunal that if the visa is granted they will live together in the review applicant’s home. The review applicant said they have not formally discussed division of household tasks but it is likely the visa applicant will be responsible for the cooking. He said paid cleaners and gardeners would undertake the housework and garden maintenance.

33. The review applicant told the Tribunal that he travels frequently for work and to visit family members in Melbourne. He said he expects the visa applicant to travel with him at these times.

34. The Tribunal accepts that the parties live in separate countries and have not had the opportunity to establish their combined household. The parties indicated that it is their intention to share a household in the future.

    The social aspects of the relationship

35. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

36. Statutory declarations made in September 2015 by the review applicant’s brother and sister-in-law were provided. Statutory declarations made in October 2018 by the review applicant’s parents were provided. The statutory declarations indicated that members of the review applicant’s family were aware of the parties’ relationship however they had not met the visa applicant in person at the time of making the declarations.

37. A statutory declaration made on 9 October 2018 by the review applicant’s brother was provided. He declared he had spent two days with the review applicant and the visa applicant in May 2018 in Hong Kong. He referred to the visa applicant as the review applicant’s “wife to be/fiancée/partner”. A photo of the parties with a male person identified as the review applicant’s brother was provided.

38. The review applicant told the Tribunal that he has not broached the subject of his intended marriage to the visa applicant with his 13 year old daughter yet. He said she knows he travels overseas to spend time with a partner. The review applicant said he sees his daughter when he visits Melbourne and she also comes to Perth to stay with him. He said the visa applicant is aware of these arrangements and accepts that they will continue. The visa applicant gave consistent evidence about this matter.

39. In the parties’ respective phone interviews they said the review applicant had met the visa applicant’s parents in August 2015. At hearing they both gave evidence that the review applicant met the visa applicant’s mother in August 2015. He did not meet her father because he was away from their home town at the time.

40. The review applicant said he spent a week in the visa applicant’s home town in August 2015. He and the visa applicant stayed in a hotel but they spent time with the visa applicant’s mother every day. He said he currently has occasional telephone or internet contact with the visa applicant’s mother.

41. The parties met for the first time in person in the Russian Black Sea resort of Sochi. They met on 2 July 2015 and spent 16 days together. The review applicant travelled to Russia in August 2015 to visit the visa applicant. They met again in Brazil in December 2015, June 2016 and March 2018.  The parties met in October/November 2017 (Russia and Dubai) and May 2018 (Hong Kong). They both gave evidence at hearing that they are planning to meet in Brazil in early November 2018. The review applicant said the flight and accommodation bookings have been made. Numerous photos of the parties during their travel to other countries were provided.  

42. The Tribunal accepts that the parties represent themselves as prospective marriage partners to their respective families, noting that although only the review applicant’s brother has met the visa applicant, his sister-in-law and his parents acknowledge their intention to marry.

    The nature of the person’s commitment to each other

43. The Tribunal considered the nature of the persons’ commitment to each other including duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

44. In her phone interview the visa applicant said they communicate with each other by Viber.  In his phone interview the review applicant said they communicate with each other every day by SMS and calls.

45. The review applicant told the Tribunal that they communicate with each other several times each day without exception. He said they have previously used Skype and WhatsApp but now they use Viber. He said they speak by phone or message throughout every day. The visa applicant gave consistent evidence about the frequency of their communication. Evidence of regular and frequent communication in 2015, 2016, 2017 and 2018 was provided. 

46. The review applicant said they provide each other with emotional support and referred to the difficulties of a long-distance relationship and the visa process. He said since May 2017 they have agreed to meet up every three months to ensure they maintain and strengthen their relationship whilst awaiting the outcome of the visa application.

47. When asked how he would feel if the visa is refused the review applicant said it would be heartbreaking after all the emotion and money he has invested in the relationship. When asked the same question the visa applicant said it would be very bad because they love each other and can’t live without each other.

48. The Tribunal had regard to information provided to the Department by Ms Julia Braun. Ms Braun has made an application in the Family Court in relation to paternity and child support issues. The review applicant told the Tribunal that DNA results have determined that he is the father of Ms Braun’s son born on 30 December 2017.

49. The information provided by Ms Braun was put to the review applicant pursuant to s. 359AA of the Act. The Tribunal informed the review applicant that subject to his comment or response, the information could be the reason or part of the reason for affirming the decision under review.

50. The Tribunal put to the review applicant that Ms Braun said he had proposed marriage and offered her a ring on 19 November 2016. The review applicant said his communication with Ms Braun was fraught with difficulties. He did not propose marriage and the ring was a parting gift.

51. The Tribunal put to the review applicant that Ms Braun said he had contacted her in April 2017 and was adamant that he wanted to start their relationship again. She said he presented her with a significant gift as evidence of his intentions. The review applicant said Ms Braun consistently lied about her well-being and she found any excuse to contact him. He said she talked about injuries suffered by her daughter and of her own attempted suicide. He said his contact with Ms Braun went on for far too long. He said he did not want to start a relationship with her again in April 2017 and the gift she referred to was a bottle of perfume.

52. The Tribunal put to the review applicant that the evidence indicated that he had been in a relationship with Ms Braun at the same time as he was sponsoring the visa applicant to come to Australia as his intended spouse. The Tribunal said his actions demonstrated that he had not made a commitment to the visa applicant that their relationship was to the exclusion of all others. He told the Tribunal that his actions over the past three years have been less than ideal. He said many relationships would have broken down in similar circumstances but their love has grown deeper. He said the visa applicant became aware of his relationship with Ms Braun in May 2017 and that is the reason they agreed to meet every three months.

53. The evidence before the Tribunal indicates that the review applicant met Ms Braun in December 2015 and that they were in a relationship from January 2016 to April 2017. The Tribunal accepts the review applicant’s evidence that his relationship with Ms Braun was difficult and that despite having a sexual relationship with her, he continued to be in frequent contact with the visa applicant and travelled to meet her outside Australia on several occasions. The Tribunal accepts the review applicant’s evidence that at no time did he intend to marry Ms Braun.

54. The Tribunal finds that the parties have been in a relationship for three and half years and that the relationship has endured despite the parties living in different countries. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine future intention, the Tribunal is satisfied that at the time of application the parties genuinely intended to live together as spouses and therefore cl.300.216 is met.

    Do the parties continue to meet time of application requirements?

55. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, that visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses.

1. For the reasons set out above the Tribunal is satisfied that at the time of decision, the parties genuinely intend to marry and intend to do so during the visa period (cl.300.115) and that the parties genuinely intend to live together as spouses (cl.300.116).

2. Based on the evidence before it, the Tribunal is also satisfied that at the time of decision, the visa applicant intends to marry a person who is an Australian permanent resident (cl.300.211 (b)) and that the visa applicant and the review applicant have met each other in person since each of them turned 18 and are personally known to each other (cl.300.214).

3. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa.

   DECISION

4. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

   ·cl.300.211 of Schedule 2 to the Regulations

   ·cl.300.214 of Schedule 2 to the Regulations

   ·cl.300.215 of Schedule 2 to the Regulations

   ·cl.300.216 of Schedule 2 to the Regulations

   ·cl.300.221 of Schedule 2 to the Regulations

   ·cl.300.222 of Schedule 2 to the Regulations

   Christine Kannis
   Member