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austlii:cth/MRTA/2003/1438
appellant. The Tribunal remitted the application to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant is to be taken to have...
The Migration Review Tribunal overturned a visa refusal for a German woman seeking to stay in Australia with her Australian partner. Immigration had refused the visa because the couple hadn't lived together for 12 months before applying—they had only lived together for 5 months in Germany before being separated for 16 months. However, the Tribunal found evidence that the relationship continued during the separation through monthly financial support payments and phone calls. The Tribunal ruled that a genuine relationship can continue even when partners are living apart, provided they remain committed to each other and financially connected. The case was sent back to Immigration with instructions to grant the visa if other requirements were met.
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CATCHWORDS: Review of visa refusal - Subclass 820 - genuine relationship
DECISION: The Tribunal remits the application made by the visa applicant for a Partner (Temporary) (Class UK) visa to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant is to be taken to have met the following criteria for a Subclass 820 (Spouse) visa:
* clause 820.221A of Schedule 2 to the Regulations.
1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Multicultural Affairs (the delegate) to refuse to grant a Partner (Temporary) (Class UK) visa. Ms Bozena Galeziowski (the visa applicant), a national of Germany, born on 30 July 1965, applied for permanent residence on spouse grounds on 7 November 2000.
2. The visa application form completed by the applicant incorporated an application for a permanent visa, a Partner (Residence) (Class BS) visa, which normally cannot be granted until 2 years have elapsed since the lodgement of the application, and an application for a temporary visa, a Partner (Temporary) (Class UK) visa, which can be granted immediately to permit the visa applicant to stay until a decision is made on the permanent visa. This process is intended to test whether the relationship is continuing, 2 years after the visa application, before permanent residence is confirmed. The delegate's decision to refuse to grant the visa was made on 9 November 2001.
3. The visa applicant lodged an application for review with the Tribunal on 6 December 2001. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.
4. The visa applicant lodged one application for review form and paid one fee and there is some question as to which of the two decisions is to be reviewed by the Tribunal - the decision to refuse to grant a Class UK visa or the decision to refuse to grant a Class BS visa. The obvious intention behind the application for review is to seek a review of whatever decisions prevented the visa applicant from gaining residence on spouse grounds, and the necessary first step is the review of the decision to refuse to grant the Class UK visa. The Tribunal is therefore proceeding on the basis that this review is in respect of the decision to refuse to grant the Class UK visa.
5. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.
6. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
7. The criteria and policy immediately relevant to this review are:
Regulation 1.15A of the Regulations
Regulation 1.20J of the Regulations
Part 820 of Schedule 2 to the Regulations
Procedures Advice Manual 3: Regulation 1.15A - Interpretation - Spouse
Procedures Advice Manual 3: Division 1.4B - Sponsorship and Nomination: Spouse, Prospective Spouse and Interdependency visas
Procedures Advice Manual 3: Schedule 2 - Spouse - Visa 820
Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788.
8. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.
A hearing was held on 30 January 2003 at which the visa applicant and the nominator gave evidence. A summary of the evidence on the files and the oral evidence follows.
10. The visa applicant entered Australia on a Subclass 976 (Electronic Travel Authority (Visitor)) visa on 25 December 1999. The visa applicant's visitor visa expired on 9 May 2000. The visa applicant departed Australia on 23 January 2000 and returned on 2 February 2000 whilst the visa was still valid. The visa applicant was then granted a bridging visa on 1 May 2000, which expired on 12 May 2000 when the visa applicant was granted a Subclass 686 (Tourist Long Stay) visa. The visa applicant's visa expired on 9 November 2000 and since then the visa applicant has held bridging visas granted on the basis of the application for a visa the subject of this review.
11. The visa applicant was nominated in connection with the visa application by Mr Wilfried Robert Damberg (the nominator), an Australian permanent resident, who was born in Germany on 18 August 1938.
12. The visa applicant lodged an application for a spouse visa on 7 November 2000. The visa applicant claimed, in a statutory declaration dated 28 June 2001 provided in support of the application, that:
* the parties commenced an `intimate relationship' about March 1998, which continued until August 1998 when the nominator returned to Australia;
* on the nominator's return the parties subsequently continued their `intimate relationship' through contact over the telephone;
* since March 1998 she has not had any other relationship except for her relationship with the nominator;
* when she met the nominator he was still married; however, he divorced his former wife in August 1999;
* she came to Australia in December 1999 and commenced living with the nominator at his property in Murga and has since lived with the nominator on a `permanent and genuine domestic basis as husband and wife'; and
* she has two children residing in Germany from a previous relationship and the nominator provides financial support to both children.
13. Based on information on the application form both parties have been previously married and divorced. The visa applicant's marriage to Mr Galeziowski Zbignien ended in divorce in October 1990. There were two children from the marriage. The nominator's marriage to Ms Bruenhild Damberg in June 1961 ended in divorce in August 1999. There were two children from this marriage.
14. Documentation provided in support of the visa application included:
* Certified copy of nominator's German passport, including copy of a resident return visa granted on 7 November 2000
* Certified translation of visa applicant's birth certificate, issued in Germany on 9 November 1982
* Certified copy of nominator's divorce certificate for his previous marriage, issued by the Family Court of Australia on 13 October 1999
* Statutory declarations by the visa applicant and nominator providing the background and history of the relationship
* 2 statutory declarations by friends of the nominator, both Australian citizens attesting to the genuineness of the relationship
* Statutory declaration by a registered stock and station agent stating that the nominator and visa applicant jointly run the property on which they live
* 2 photographs appearing to be the visa applicant and nominator together alone and with family and friends at a party;
* Copy of Austar Communications invoice addressed to the visa applicant at the parties' address in Murga, dated 26 July 2001
* 2 copies of a National Vendor Declaration form, dated 17 July 2001 and 29 July 2001, indicating that the visa applicant and nominator are trading cattle together from the parties' property in Murga
* Copy of newspaper article listing the nominator and visa applicant as joint purchasers of heifer cattle
* Copy of newspaper article titled `Buyer of the Week' showing a photograph of the visa applicant and nominator
* Copies of joint savings account statements addressed to the parties' address in Murga, showing an operation date from July 2001
* Copies of various letters, greeting cards and postcards from family and friends addressed to the visa applicant and nominator at the parties' address in Murga.
15. The delegate stated that the visa was not granted because he did not consider the parties had been in a spousal relationship 12 months prior to the lodgement of the application, as required by paragraph 1.15A(2)(d) of the Regulations, and further because there was no evidence of compelling or compassionate circumstances to warrant a reduction in the 12-month cohabitation requirement. The delegate referred to the following as relevant considerations:
* The form 888 witnesses on behalf of the nominator stated in their declarations that they first became aware of the nominator and visa applicant's de facto relationship in December 1999, shortly after the visa applicant arrived in Australia. The witnesses were unable to state whether the nominator informed them of his de facto relationship with the visa applicant before her arrival on 25 December 1999.
* No further independent evidence was provided other than the word of the visa applicant and nominator to indicate that the visa applicant and nominator started a de facto relationship prior to this date.
16. On 29 January 2003, the Tribunal received a submission from the visa applicant's representative. The submission re-states the parties' claim that their relationship commenced in March 1998 in Germany and that they have been in a genuine and continuing relationship since that time. The submission states that during the time from the nominator's departure from Germany in August 1998 to the visa applicant's arrival in Australia in December 1999 the nominator made arrangements to provide financial support to the visa applicant on a monthly basis. In particular, it is claimed that the nominator held a bank account in Germany and authorised his brother, Herbert Damberg, to transfer a monthly amount of $2,000 (subsequently corrected to DM2,000 by the nominator at the hearing) to support the visa applicant and her children while they lived apart.
17. The submission attaches a range of additional evidence, including statutory declarations from friends in Australia attesting to the genuineness of the relationship, jointly addressed bills and accounts, letters, postcards, e-mails and telephone accounts indicating correspondence between the parties when one of them has been out of the country. All of this correspondence and evidence post-dates the visa applicant's arrival in Australia in December 1999.
18. At the hearing, the nominator and visa applicant confirmed their claim that the relationship commenced around March 1998. The nominator provided the Tribunal with a handwritten statement signed by his brother, Herbert Damberg, stating that since August 1998 some DM2,000 had been remitted each month to the visa applicant's account (no.705852300) with the Community Bank in Germany. The nominator said that he was in the process of gathering further evidence to support their claim that the relationship commenced in March 2000 and would pass this evidence to the Tribunal within 2 weeks.
19. On 18 February 2003, the Tribunal received the original German (Volksbank) bank receipts for monthly remittals of DM2,000 commencing in August 1998 and spanning the following 13 months. The Tribunal also received a Statutory Declaration by the nominator's brother, Herbert Damberg, stating that his brother's de facto relationship began in Germany in March 1998 and that on his brother's return to Australia later that year he has mediated the DM2,000 monthly transfers between the nominator and the visa applicant. Statutory Declarations by the visa applicant's mother, step-father and daughter all attesting to the genuineness and commencement date of the couple's relationship have also been provided to the Tribunal.
20. At the time the visa application was lodged, Class UK contained the following subclasses: Subclass 820 (Spouse), and Subclass 826 (Interdependency). The only subclass in respect of which any claims have been advanced is Subclass 820. There is no evidence to suggest that the visa applicant meets key criteria for the other subclass.
21. The criteria for a Subclass 820 visa, relevant to this review, are set out in subclauses 820.211(2) and 820.221(1), and clause 820.221A. The criteria can be posed as the following questions:
* Was the visa applicant the spouse of the nominator at the time of the visa application?
* Was the nominator an Australian citizen, an Australian permanent resident or eligible New Zealand citizen at the time of the visa application?
* Was the visa applicant the holder of a `substantive visa' at the time of application?
* Does the visa applicant continue to be the spouse of the nominator at the time of decision?
22. Regulation 1.15A contains the test for determining whether one person is the `spouse' of another person, whether in a married or a de facto relationship. In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court held that subregulation 1.15A(3) set out mandatory considerations. Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3). These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons' commitment to each other.
23. Having regard to these considerations and based on the evidence, including the evidence given at the hearing by the nominator and the visa applicant, both of whom the Tribunal found to be credible witnesses, and the documentary evidence (including bank transfers) supporting the couple's claim that the relationship began in Germany in 1998, the Tribunal makes the following findings:
* The visa applicant was the holder of a substantive visa at the time of application.
* The visa applicant was in a spousal relationship with the nominator at the time of the visa application, and continues to be the spouse of the nominator.
* The de facto relationship existed throughout the 12 months prior to the visa application.
* The nominator was and is now an Australian permanent resident at the time of the visa application, and the nomination is approved.
24. Given these findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 820 visa. If the visa applicant is found to meet the remaining criteria, then the visa applicant is entitled to the grant of a Partner (Temporary) (Class UK) visa. The question of a Class BS visa would then need to be considered further.
25. The Tribunal remits the application made by the visa applicant for a Partner (Temporary) (Class UK) visa to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the direction that the visa applicant is to be taken to have met the following criteria for a subclass 820 (Spouse) visa:
* clause 820.221A of Schedule 2 to the Regulations.
The Tribunal remitted the application to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant is to be taken to have met subclause 820.211(2), subclause 820.221(1), and clause 820.221A of Schedule 2 to the Regulations (para 25).