1605086 (Migration)

[2016] AATA 4337

1605086 (Migration) [2016] AATA 4337 (31 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Guxim Vakaj

VISA APPLICANT:  Ms Ana Dervishi

CASE NUMBER:  1605086

DIBP REFERENCE(S):  BCC2015/736863

MEMBER:Justin Meyer

DATE:31 August 2016

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.300.211 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; and

·cl.300.221 of Schedule 2 to the Regulations

Statement made on 31 August 2016 at 5:44pm

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 5 March 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). 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 that the parties genuinely intend to marry, that the marriage is intended by the parties to take place within the visa period, and that the parties to intend to live together as spouses.

3. The delegate refused to grant the visa on 29 June 2015 on the basis that the visa applicant did not satisfy cl.300.215, cl.300.216 and cl.300.221 of Schedule 2 to the Regulations because the parties do not genuinely intend to live together as spouses or marry.

4. The review applicant appeared before the Tribunal on 19 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ana Dervishi. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether I am satisfied that at the time of application, and at the time of hearing, the visa applicant and the review applicant genuinely intended to live together as spouses and marry.

   Do the parties genuinely intend to marry?

8. 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.

9. The parties are both of an Albanian background. The review applicant was born in Albania, settled in Australia as an adult, and became an Australian citizen. The visa applicant was raised - and still lives - in Albania. 

10. The review applicant is a 44-year-old man, who is a divorced father of three children. The visa applicant is 31 years old and has never married.

11. Both parties gave evidence of how the review applicant’s mother made him aware of the existence of the visa applicant as a good prospective partner. The parties had vaguely heard of one another but had never met. There is a very distant family connection between the parties and they are not blood relations.  

12. Both parties gave credible evidence of having first spoken via Skype in October 2014.

13. I find that the parties then communicated almost every day until their first face to face meeting in Albania when the review applicant went there for four weeks, commencing in late December 2014. Both parties were above the age of 18 at first meeting and had met in person at the time of application, thereby satisfying cl.300.214 of the regulations.

14. There were several other one-on-one social meetings between the parties alone together at this time. I find the couple had commenced a personal relationship in October whilst communicating in their respective countries. Marriage was suggested at this time with both parties agreeing to marry. Therefore I find that the visa applicant was at the time of application intending to marry an Australian citizen and this satisfies cl 200.211 of the regulations.

15. The respective parents of the parties met in November 2014 to arrange for the visa applicant’s hand in marriage, per the customs of the parties’ families. This proposal was accepted and the meeting is evidenced in numerous photographs provided to the Tribunal.

16. Family were informed and the engagement was celebrated in January 2015 at a function at which approximately 30 people attended. The majority of attendees were relatives and friends of both parties. There is ample photographic evidence of this event.

17. I find that the intention of the parties is to marry as soon as possible in Australia, as the review applicant chooses to live in Australia because his family lives there and because the visa applicant is willing to make a new life in Australia with him. The expectation is that this marriage would therefore occur within the visa period, in this case in September 2016.

18. There is a further supportive declaration from a marriage celebrant, Bill Gani, to similar effect that I also give regard to.

19. 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 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?

20. 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). 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). 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.

    Financial Aspects

21. I find that there are sufficient and ongoing joint financial activities that support an intention to form a genuine spousal relationship. The review applicant and the visa applicant have resided away from one another for a considerable period and have had only one opportunity to be together in Albania (this being the visa applicant’s country of residence) including during the establishment of their relationship in 2014-2015. Thus the opportunity to arrange joint ownership of assets, joint liabilities, pooled financial resources, mutual financial legal obligations owed to the other parties, and sharing of day-to-day household expenses is limited. Nonetheless there is evidence of limited but clear joint financial activities taking place. The review applicant has in April 2016 arranged for the visa applicant to be a beneficiary under his superannuation policy for example. He has also sent cash amounts by Western Union to the visa applicant, totalling some AUD3000. I find these arrangements reflect how he sees himself as a provider and future husband.

    Nature of the Household

22. I give regard to the nature of the household (including any joint responsibility for care and support of children, parties' living arrangements; and any sharing of housework), and again, note that the review applicant and the visa applicant have resided away from one another for a long period and have had only three opportunities to be together. The review applicant has been prevented for a long period from travelling because of his responsibilities of attending to work and family responsibilities. Thus the opportunity on this score is limited. Nonetheless there has been a short stay of the parties together in 2015, which is a modest but real example of the relationship assuming more of the flavour of a household. I accept the evidence of all witnesses in the hearing that both parties wish to set up a household together once united in Australia, and start a family. I find that these are ongoing desires of the parties, from the beginning of their relationship to the present.

    Social Aspects

23. Turning to social aspects of the relationship, I am satisfied that the parties represent themselves to other people as being engaged to be married to each other. There was a number of guests - 30 - at the engagement ceremony of the couple in January 2015. Photographic evidence supports the presence of guests at such a ceremony. This situation points to a level of social recognition. The parties could nominate one another’s friends and the review applicant had informed colleagues of his engagement in Albania. I find that the parties represented themselves to others as being engaged from the beginning of their relationship to the present, and that they undertake joint social activities when together, with others.

    Commitment to Each Other

24. In respect of the persons' commitment to each other, the duration of the relationship spans some two years. A good deal of degree of companionship and emotional support is evident from records of and witness accounts of constant communication, electronic and otherwise, over a period of years to the present. Both parties state that they are in constant contact - as evidenced by very extensive phone and electronic message records - and that they wish to have children together. I find that this is a committed relationship which is treated as long-term, and that the lesser level of face-to-face contact comes about because of the inability of the review applicant to regularly visit due to legitimate constraints. This position adequately explains the time spent apart.

25. Having had regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons' commitment to each other, I consider these findings together demonstrate that there is an intention of a mutual commitment to a future shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and

    continuing. I am further satisfied that the parties do not live separately and apart on a permanent basis. They therefore would potentially meet the requirements of s.5F for a future spousal relationship.

26. At the time of application the parties did have a genuine intention to live together as spouses, and therefore cl.300.216 is met.

    Do the parties continue to meet time of application requirements?

27. 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 the 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.

28. I find that the visa applicant at the time of application intended to marry the review applicant, an Australian citizen, per cl 200.211 of the regulations. At the time of application the parties also had a genuine intention to marry and satisfy the requirements of cl.300.215(a). The proposed date for the marriage is within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 were met.

29. I further find that the visa applicant at the time of this decision still intends to marry the review applicant, an Australian citizen, from her corroborated evidence that this is her desire. From the evidence it is shown that the parties have indeed met and know each other personally. The parties have given strong evidence that the parties remain willing still to marry during the visa period, indeed as soon as possible. I am satisfied that the parties continue to genuinely intend to live together at the time of this decision.

30. Accordingly, cl.300.221 is met.

31. 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.

32. 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

33. 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; and

    ·cl.300.221 of Schedule 2 to the Regulations

    Justin Meyer
    Member