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1302815 [2014] MRTA  1316  (28 May 2014)

Last Updated: 6 June 2014

1302815  [2014] MRTA 1316  (28 May 2014)

DECISION RECORD

REVIEW APPLICANT: Mrs Renata Tereshchenko

VISA APPLICANT: Mr Kyrylo Demura

MRT CASE NUMBER: 1302815

DIBP REFERENCE(S): OSF2012/048839

TRIBUNAL MEMBER: Kira Raif

DATE: 28 May 2014

PLACE OF DECISION: Sydney

DECISION: The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

• cl.309.211 of Schedule 2 to the Regulations; and
• cl.309.221 of Schedule 2 to the Regulations
  

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 on 18 January 2013 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
2. The visa applicant is a national of the Ukraine, born in February 1969. He married the sponsor, who is an Australian citizen, on 30 March 2012. The visa applicant made the application for the visa on 15 June 2012 on the basis of his relationship with the sponsor.
3. On 18 January 2013 the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied the visa applicant was the spouse of the sponsor.
4. The sponsor (‘the review applicant’) sought review of the delegate’s decision on 22 February 2013. The review applicant appeared before the Tribunal on 27 May 2014 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s mother. The review applicant was represented in relation to the review by her registered migration agent.
5. The issue before the Tribunal is whether the visa applicant is the spouse of the sponsor within the meaning of s. 5F of the Act.

Relevant law

6. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
7. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is 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). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3).

Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. When making the application, the visa applicant provided evidence of his marriage to the sponsor in March 2012. There is nothing before the Tribunal to suggest the marriage is not valid. The Tribunal is satisfied on the evidence before it, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

Are the other requirements for a spousal relationship met?

9. The Tribunal has had regard to the documentary evidence that was presented with the primary application and considerable amount of additional evidence that was provided to the Tribunal. The Tribunal has also had regard to the parties’ oral evidence.
10. The Tribunal has considerable concerns, as did the delegate, about the parties’ previous relationships. The parties confirmed in their oral evidence to the Tribunal that both the visa applicant and the sponsor continued to live with their former spouses after the separation and the divorce. The sponsor’s former spouse moved out of her home about one year ago while the visa applicant’s former wife continues to live in his apartment. While the Tribunal acknowledges the evidence about the difficulties in finding alternative accommodation in Ukraine, and the expense of renting another apartment, the Tribunal does not consider there are any good reasons for the sponsor’s former husband to continue to live at her home. Nevertheless, the Tribunal is prepared to accept the review applicant’s evidence that her ex-husband decided to use her home as free accommodation and that she could not make him leave her home, other than by relying on the police, which she was not prepared to do. The Tribunal is prepared to accept that by March 2012 when the application was made, the parties’ relationship with their respective former partners had ceased, even though they continued to live at the same premises.
11. The Tribunal also accepts the review applicant’s explanation concerning her trip with her former husband. The Tribunal accepts that they made the decision to travel, and the arrangements for it, in late 2010, before the review applicant resumed contact with the visa applicant. She made the payment for the trip in early 2011, also before her relationship with the visa applicant started. The Tribunal is prepared to accept that her travel with the former husband did not signify their continued commitment to the relationship.
12. The Tribunal has formed the view that the visa applicant and the sponsor were credible and their evidence was broadly consistent, even though there were a number of discrepancies in their evidence. The Tribunal accepts that the review applicant had made several frequent trips to Ukraine and more recently, the couple spent time in Fiji. The Tribunal accepts that during these periods they lived together and established a joint household.
13. There is ample evidence before the Tribunal of the parties’ communication, in addition to the photographic evidence of their social activities together. The review applicant gave detailed evidence about the visa applicant’s friends. The Tribunal accepts that the parties undertake social activities as a couple and that they informed others about the relationship. The Tribunal notes that while nobody attended the formal registration of the marriage at the registry, family and friends attended the celebrations at the restaurants. The Tribunal accepts that the relationship is socially recognised.
14. The review applicant’s evidence to the Tribunal is that she provided limited support to the visa applicant, whenever he needs anything, and that he mainly supports himself. The Tribunal finds that there is only very limited pooling of financial resources and no major financial commitments between the parties.
15. The parties gave consistent, and detailed account of their plans for the future and the Tribunal is satisfied that they have discussed their future together. The Tribunal also acknowledges the review applicant’s evidence about the attempts to have a child. In the Tribunal’s view, that indicates that they view the relationship as a long term one. Overall, and while not entirely without doubt, the Tribunal is satisfied, on balance, that the review applicant and the visa applicant are in a genuine relationship and that they have a mutual commitment to this relationship to the exclusion of all others.
16. The Tribunal is satisfied that the visa applicant and the review applicant have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that the relationship between them is genuine and continuing and that they do not live separately and apart on a permanent basis. Given these findings the Tribunal s satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship. Therefore the visa applicant meets cl.309.211 and cl.309.221

Conclusion

17. 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 309 visa.

DECISION

18. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
    • cl.309.211 of Schedule 2 to the Regulations; and
    • cl.309.221 of Schedule 2 to the Regulations
      

Kira Raif
Senior Member