Vrbanic (Migration)

[2018] AATA 2732

Vrbanic (Migration) [2018] AATA 2732 (26 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rozalija Vrbanic

VISA APPLICANTS:  Mr Oliver Sulyok
Mr Tibor Sulyok

CASE NUMBER:  1708213

DIBP REFERENCE(S):  BCC2015/4116425

MEMBER:K. Chapman

DATE:26 June 2018

PLACE OF DECISION:  Brisbane

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

·cl.300.216 of Schedule 2 to the Regulations; and

·cl.300.221 of Schedule 2 to the Regulations.

Statement made on 26 June 2018 at 9:37am

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TU) visa – Subclass 300 (Prospective marriage) – Genuine intention to live as spouses – Engaged – Shared general expenses on meetups – Access to bank account – Social activities with family members – Regular contact – Recommencement of relationship – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359, 360
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2 cls 300.216, 300.221

CASES
Jayasinghe v MIMA [2006] FCA 1700

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The visa applicants applied for the visas on 30 December 2015. The first named visa applicant is Mr Oliver Sulyok. His adult son, Tibor Sulyok, was included as a secondary applicant. They are dual citizens of Hungary and Serbia. The visa application is sponsored by the fiancée of the first named visa applicant, Ms Rozalija Vrbanic (‘the review applicant’). 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. Relevantly to this matter the primary criteria include cl.300.216 and cl.300.221.

3. The delegate refused to grant the visas on 4 April 2017 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations, because of a lack of satisfaction concerning him and the review applicant having a genuine intention to live together as spouses. On 14 April 2017, the review applicant applied to the Tribunal for review of the visa refusal decision. She provided a copy of that decision to the Tribunal with her application, along with photographs and a detailed written statement.

4. On 5 June 2018, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting her to provide further information in support of her claims that she and the first named visa applicant genuinely intend to marry and live together as spouses, and that they have met and are known to each other personally. In response, the Tribunal received voluminous correspondence including detailed statements, photographs, financial records, personal correspondence and social media records. The aforementioned material has been duly considered by the Tribunal.

5. The Tribunal observes this to be a matter where the first named visa applicant submitted limited documentary evidence in support of his visa application to the Department of Immigration, with the review applicant furnishing the Tribunal with more extensive evidence that was unavailable to the primary decision maker. The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the first named visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act. For completeness, the Tribunal notes the review applicant provided it with written advice that the second named visa applicant is now fully independent and is no longer a dependent of the first named visa applicant.

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

   ISSUES AND LAW

7. The Prospective Marriage (Temporary) (Class TO) visa is for persons seeking to enter Australia to marry, after their first entry to Australia, an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse, with a view to remaining permanently. In the present matter, the review applicant is an Australian citizen. The issues in the present case are whether the requirements in cl.300.216 and cl.300.221 are met, which requires the Tribunal to be satisfied that the first named visa applicant and the review applicant have a genuine intention to live together as spouses, both at the time of the visa application and at the time of this decision, in addition to satisfying other criteria for the visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In assessing whether the first named visa applicant and the review applicant have the required intention to live together as spouses, the Tribunal has considered the documentary evidence submitted with the primary application and the additional documentary evidence that was provided to the Tribunal. Having regard to the principles outlined in the decision of Jayasinghe v MIMA [2006] FCA 1700, when considering the circumstances of the relationship at the time of the visa application, the Tribunal has had regard to later events as they tend logically to show the existence of prior facts.

9. The Tribunal has had regard to all of the evidence before it concerning the time of application and the time of decision. Documentary evidence submitted by the parties contained in both the Departmental and Tribunal files included, but was not limited to, Marriage Celebrant correspondence, statements in support of the relationship, photographs, financial records, personal correspondence and social media records. The Tribunal notes that the documentary evidence in support of the relationship was detailed and persuasive in nature.

   Do the parties genuinely intend to live together as spouses?

10. 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).

11. 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). 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.

    Circumstances of the relationship

12. The Tribunal has considered all of the circumstances of the relationship, including the following matters, in arriving at its decision concerning whether the first named visa applicant and the review applicant genuinely intend to live together as spouses.

    Financial aspects of the relationship

13. The Tribunal notes that the parties reside in different countries and therefore it is not unexpected for there to be limitations regarding evidence concerning the financial aspects of their relationship. Written statements by the review applicant explain that until her last visit to Hungary in June 2017, no significant merging of funds had occurred between the parties as they are living apart. The documentary evidence indicates that the couple have shared general expenses associated with meeting up in 2013 and 2015 in Europe. A Statement from the UniCredit Bank of Hungary dated 15 June 2017 confirms that the parties deposited USD10,100  into an account in the name of the first named visa applicant, which the review applicant has full authorisation to access. The review applicant indicates in her written statements that she and her fiancé are both financially self-sufficient and therefore they have not felt the need to fully combine assets until the latter arrives in Australia. The parties have plans to purchase a house and vehicle in this country. The Tribunal has paid due regard to the fact that the parties live in separate countries and have had less opportunity to combine their finances than if they were living together on an ongoing basis. On balance, the Tribunal affords medium weight to the evidence in support of the financial aspects of the relationship.

    Nature of the Household

14. The Tribunal notes that the parties reside in different countries and therefore it is not unexpected for there to be limitations regarding evidence concerning the nature of the household. The documentary evidence before the Tribunal indicates that the parties spent a limited amount of time together in 2013 when they reconnected in Europe, having not seen each other for many years. A daughter of the review applicant was present during this visit. In 2015, the review applicant returned to Europe with all three of her daughters and they stayed with the first named visa applicant and met his sons during that trip. In June 2017, the review applicant travelled back to Europe with her eldest daughter and spent one month with the first named visa applicant. After careful consideration, the Tribunal affords the evidence in support of the nature of the household low weight.

    Social aspects of the relationship

15. The Tribunal had documentary evidence including third party statements, photographs and social media records demonstrating that the first named visa applicant and the review applicant are known as a couple among family and friends. In particular, the photographs depict the parties in the presence of each other’s children and other family members. Further, the documentary evidence indicates that whilst in the company of each other in Europe the parties have engaged in social activities, including with family members. The statements from third parties also demonstrate that the relationship of the parties has been embraced by their respective children, wider family members and friends. It is clear to the Tribunal that the first named visa applicant and the review applicant have met each other in person as adults and are known to each other personally. Following careful consideration, the Tribunal affords the evidence in support of the social aspects of the relationship medium weight.

    Nature of the persons’ commitment to each other

16. The statements of the couple, which are corroborated by those of third parties, indicate they first met in Serbia as teenagers in 1976. They dated for two years and then dated other people. The review applicant sought to recommence the relationship with the first named visa applicant but was prevented from doing so by a jealous man who subsequently became her husband. The first named visa applicant and the review applicant both went on to have troubled marriages with other people. They each had their own children. In 2006, the parties reconnected by telephone. In 2010, the review applicant’s marriage ended. The parties remained in touch throughout the years. In 2013, the review applicant travelled to Europe with her eldest daughter and met up with the first named visa applicant. They recommenced their relationship at that time. The review applicant subsequently visited the first named visa applicant in Europe in 2015 and 2017.

17. Social media records and personal correspondence demonstrate that the couple have remained in regular contact over many years. They both draw companionship and emotional support from each other. The couple became engaged in 2015. The documentary evidence strongly suggests they will marry in Australia when a suitable date can be arranged following the grant of the Subclass 300 visa. The documentary evidence also points to the parties viewing their relationship as long term. The Tribunal notes that the parties did not have professional assistance in the preparation of the visa application or this review. Nevertheless, it is clear to the Tribunal that the parties have been known to each other for a long time and recommenced their relationship in 2013. They have continuously maintained their relationship since that time. After careful consideration, the Tribunal affords the evidence in support of the nature of the persons’ commitment to each other high weight.

18. On the basis of the aforementioned matters, the Tribunal is satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore the requirements of cl.300.216 are satisfied.

    Do the parties continue to meet time of application requirements?

19. Clause 300.221 requires that at the time of decision, the first named visa applicant continues to satisfy the criteria in cl.300.211, 300.214, 300.215 and 300.216. That is, he 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.

20. The evidence before the Tribunal indicates the parties will be married in Australia on a suitable date once the visa is granted (noting their original wedding date of 1 July 2016 passed due to the visa application not being finalised by that time). For the reasons expressed above, the Tribunal is satisfied that the parties maintain the intention to be married to each other during the visa period and will be so married. Additionally, the Tribunal is satisfied that the parties genuinely intend to live together as spouses. It is clear that they have met in person as adults and are known to each other personally. Accordingly, the requirements of cl.300.221 are satisfied.

    CONCLUSION

21. Having carefully considered the submitted documentary evidence, the Tribunal is satisfied with the veracity of the fiancé relationship between the parties. Given the findings above, the appropriate course is to remit the application for the visa in respect of the first named visa applicant to the Minister to consider the remaining criteria for a Subclass 300 visa. The Tribunal notes the review applicant has advised that the second named visa applicant is no longer dependent upon the first named visa applicant.  

    DECISION

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

    ·cl.300.216 of Schedule 2 to the Regulations; and

    ·cl.300.221 of Schedule 2 to the Regulations.

    K. Chapman
    Member