Vitebski (Migration)

[2019] AATA 4228

Vitebski (Migration) [2019] AATA 4228 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jan Vitebski

VISA APPLICANT:  Ms Lyudmila Alexeyeva

CASE NUMBER:  1708678

DIBP REFERENCE(S):  BCC2015/1828991

MEMBER:M. Edgoose

DATE:6 September 2019

PLACE OF DECISION:  Melbourne

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.300.216 of Schedule 2 to the Regulations

Statement made on 06 September 2019 at 6:59am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – parties genuinely intend to live together as spouses – parties represent themselves as being in genuine and continuing relationship – joint social activities – constraints of residing in different countries – parties known to each other for 20 years – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 1.15, Schedule 2, cl 300.216

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 25 June 2015. 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).

3. The delegate refused to grant the visa on 11 February 2017 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant and sponsor genuinely intend to live together as spouses.

4. The review applicant appeared before the Tribunal on 5 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ekaterina Danova, a friend of the review applicant; Gary Vitebski, the son of the review applicant and the son-in-law of the visa applicant and Julia Vitebski the daughter-in-law of the review applicant and the daughter of the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent.

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

7. The review applicant, Mr Vitebski, is an 87 year old Australian citizen who is originally from Kazakhstan. The review applicant claimed that he was married from July 1956 until April 2012 when his wife passed away. The review applicant informed the Tribunal that he is now a pensioner and had one adult son with his deceased wife. The review applicant and his former wife migrated to Australia on 11 October 1994 on Subclass 210 Former USSR visas and became Australian citizens in April 1997.

8. The visa applicant, Ms Alexeyeva, is a 72 year old Kazakhstan national who currently resides in Kazakhstan. She has declared two previous marriages that ended in divorce. The first marriage was from November 1968 until October 1985. During this marriage she had a daughter. She married for the second time in December 1997 and this ended in divorce in April 2015, however the visa applicant claims she separated in January 2014.

9. The visa applicant informed the Tribunal that she has travelled to Australia to visit her daughter on three occasions in 2006, 2011 and 2014 and stayed for approximately three months each time. On the visa applicant’s last visit to Australia between 12 January 2014 and 4 April 2014 the couple became close and on 8 March 2014 the review applicant proposed to the visa applicant. The visa applicant moved in with the review applicant for approximately 1.5 months after he became ill and during that time the couple became clos and their relationship developed. At this time the visa applicant was still married to her husband back in Kazakhstan. The visa applicant’s marriage was dissolved on 20 April 2015. On 25 June 2015 the visa applicant made this visa application. The visa application was refused on 11 February 2017 as the delegate was not satisfied that the applicant (visa applicant) and sponsor (review applicant) genuinely intend to live together as spouses. 

10. The visa applicant and review applicant claim that they have known each other for many years having lived in the same area in Kazakhstan. This was confirmed at hearing by the review applicant and the Tribunal accepted his response.

11. The visa applicant’s adult daughter is married to the review applicant’s son. The children became engaged in December 1992 back in Kazakhstan and married in June 1993 before migrating to Australia on Subclass 105 Skilled Migration visas in June 2001. They now have two daughters of their own.

12. At hearing the Tribunal was informed that due to the medication the review applicant takes he is not able to fly. The review applicant also stated that he has never departed Australia since arriving in 1994 and does not hold a current passport. The Tribunal accepts the review applicant’s oral evidence.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether Ms Alexeyeva the visa applicant and the sponsor Mr Vitebski genuinely intend to live together as spouses, both at the time of application and at the time of this decision.  

    Do the parties genuinely intend to live together?

14. 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 a married couple 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 considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4).

15. The Tribunal has had regard to a signed letter (dated 2 September 2019) from a registered civil marriage celebrant (AAT Folio 22) that “Mr Ian Vitebski has completed and signed the Notice of Intended Marriage” and that the intended marriage is scheduled to take place on 4 March 2020. The Tribunal notes that the review applicant’s first name was misspelt in the information, however the Tribunal accepts this evidence that the review applicant and visa applicant intend to marry on 4 March 2020.

16. While 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. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings.

    Financial aspects of the relationship

17. The review applicant stated at the hearing that they have no joint ownership of real estate or other major assets; no joint liabilities; no pooling of financial resources, especially in relation to major financial commitments; neither party in the relationship owes any legal obligation in respect to the other; and no sharing of day-to-day household expenses.

18. During the short period (approximately 1.5 months) of time the review applicant and visa applicant lived together the Tribunal accepts they shared some of the day-to-day household expenses.

19. The review applicant informed the Tribunal at hearing that the visa applicant on two occasions had transferred money to Australia. On the first occasion an amount of US5,000 was transferred on 24 June 2015 for the visa application which was lodged on 25 June 2015. The review applicant stated at hearing that he also contributed financially to the visa application. The review applicant told the Tribunal that in 2018 the visa applicant transferred US1,000. 

20. The Tribunal having given regard to the oral and written evidence finds that the couple have not pooled their financial resources. The Tribunal finds no evidence that the couple have committed to joint ownership of real estate or other major assets, or that they have assumed any joint liabilities. The Tribunal finds no evidence that either party owes any legal obligation in respect of the other. Given the constraints of residing in separate countries however, the Tribunal gives little weight to the consideration of the financial aspects of the relationship.

    Nature of the household

21. The review applicant has one adult son with his former wife. The visa applicant has one adult daughter with her first husband. The review applicant’s son is married to the visa applicant’s daughter. The couple have had no children of their own together. The Tribunal finds that there is no joint responsibility for the children’s care and support.

22. The review applicant informed the Tribunal that he lives by himself in a housing commission unit and that the visa applicant lives in an apartment back in Kazakhstan. During the short period (approximately 1.5 months) of time the review applicant and visa applicant lived together the Tribunal accepts they shared some of the responsibilities for the housework.

23. On consideration of the limited evidence, the Tribunal therefore finds limited evidence of the sharing of responsibility for housework; and no evidence of joint responsibility for the care and support of children. Given the constraints of residing in separate countries however, the Tribunal accords little weight to the consideration of the nature of the parties’ household in this case. 

    Social aspects of the relationship

24. The review applicant informed the Tribunal that their friends and acquaintances know about the nature of the relationship and that they are very close although currently living in different countries. This was reiterated by the witnesses’ oral evidence at the hearing. Due to the review applicant’s age many of his friends have passed away. Although independent the review applicant has a close relationship and support from his son and daughter-in-law.

25. The Tribunal acknowledges the couple have provided some evidence about the social aspects of the relationship. The couple communicate via Skype regularly as indicated by the evidence provided (AAT Folio 36) and the copy of communication (AAT Folios 25-29). The oral evidence given by the review applicant at the hearing indicates that during the limited time they have spent together in person they have enjoyed each other’s company.

26. The oral evidence provided at the hearing by the three witnesses was in support of the relationship between the visa applicant and the review applicant. Ekaterina Danova has known the review applicant for more than 20 years and had met the visa applicant during her visits to Australia. She wished for them to be together as since the start of the relationship between the review applicant and the visa applicant the review applicant had been much happier since the passing of his first wife on 4 April 2012. The witness further added that the review applicant is very active despite his age. The witness and the review applicant are actively involved in the community as volunteers and have made videos for the community television channel 31 together. The Tribunal found all witnesses to be credible.  

27. The review applicant stated that the only time the couple have planned and undertaken joint social activities was during the limited time they spent together in Melbourne in early 2014. Therefore, the Tribunal finds limited evidence that the couple plan and undertake joint social activities.

28. The Tribunal acknowledges the couple have provided some evidence about the social aspects of the relationship, including photos and the statutory declarations made by Ekaterina Danova (DIBP Folio 15) and Gary Vitebski (DIBP Folio 69) the son of the primary review applicant and the son-in-law of the visa applicant. The oral evidence given by the review applicant and the witnesses at the hearing indicates that during the limited time they have spent together in person they have enjoyed each other’s company. The Tribunal notes that the couple have known each other for over 20 years considering their children from previous relationships are married to each other.

29. On the basis of the evidence, the Tribunal finds that the parties represent themselves to others as being in a genuine and continuing relationship, and that the couple plan and undertake joint social activities. The Tribunal finds that the relationship is viewed as genuine and continuing in the opinion of the couple’s family members, friends and acquaintances.

    Nature of the person’s commitment to each other

30. The review applicant informed the Tribunal that he and the review applicant had known each other for many years even before he came to Australia. The review applicant stated to the Tribunal that their relationship started in February 2014 when the visa applicant was in Australia visiting her daughter and son-in-law. The review applicant at this time was not well and the visa applicant moved in to help him recover from his illness. During this time their relationship developed and on 8 March 2014 they became engaged. On 4 April 2014 the visa applicant departed Australia back to Kazakhstan and for the next five-and-a-half years their relationship developed over Skype.

31. The review applicant stated at hearing that he never thought the process would take so long considering the application was lodged on 25 June 2015 and was refused by the delegate on 11 February 2017 approximately 20 months later.

32. The review applicant’s evidence about the nature of the relationship was detailed and consistent. The Tribunal is satisfied that the review applicant and visa applicant are in a genuine and continuing relationship.

33. On the basis of the above the Tribunal is satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl.300.216 is met.

34. 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

35. 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.300.216 of Schedule 2 to the Regulations