Mancka (Migration)

[2021] AATA 3528

Mancka (Migration) [2021] AATA 3528 (15 September 2021)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Enxhi Mancka

VISA APPLICANT:  Miss Klea Pajo

CASE NUMBER:  1821626

HOME AFFAIRS REFERENCE(S):          BCC2017/3557591 OSF2017/014708

MEMBER:David Crawshay

DATE OF ORAL DECISION:  15 September 2021

DATE OF WRITTEN STATEMENT:         17 September 2021

DATE CORRIGENDUM

SIGNED:30 September 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. On the cover page of the decision record, for

   ‘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, cl.300.214 and cl.300.216 of Schedule 2 to the Regulations; and

   ·cl.300.211, cl.300.214 and cl.300.216 of Schedule 2 to the Regulations for the purposes of cl.300.221 of Schedule 2 to the Regulations.’

   Read

   ‘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, cl.300.214, cl.300.215 and cl.300.216 of Schedule 2 to the Regulations; and

   ·cl.300.221 of Schedule 2 to the Regulations.’

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   REVIEW APPLICANT:  Mr Enxhi Mancka

   VISA APPLICANT:  Miss Klea Pajo

   CASE NUMBER:  1821626

   DIBP REFERENCE(S):  BCC2017/3557591
   OSF2017/014708

   MEMBER:David Crawshay

   DATE OF ORAL DECISION:  15 September 2021

   DATE OF WRITTEN STATEMENT           17 September 2021

   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, cl.300.214 and cl.300.216 of Schedule 2 to the Regulations; and

   ·cl.300.211, cl.300.214 and cl.300.216 of Schedule 2 to the Regulations for the purposes of cl.300.221 of Schedule 2 to the Regulations.

   Statement made on 17 September 2021 at 9:06am

   CATCHWORDS
   MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuine intention to marry and live together – planned ceremony within visa period did not take place – attempts to rebook date – parties’ intentions – limited financial, household and social aspects while visa applicant living in home country – travel and communication – nature of commitment – declarations from parties and others – decision under review remitted

   LEGISLATION
   Migration Act 1958 (Cth), ss 5F, 65
   Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 300.215, 300.216, 300.221

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. 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).

3. The visa applicant applied for the visa on 28 September 2017. 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). Relevantly to this matter the primary criteria include cl.300.211, cl.300.214, cl.300.215, cl.300.216 and cl.300.221.

4. The delegate refused to grant the visa on 26 June 2018 on the basis that the visa applicant did not satisfy cl.300.215, cl.300.216 or cl.300.221 of Schedule 2 to the Regulations. The delegate relevantly found that the parties did not genuinely intend to marry and did not genuinely intend to live together as spouses at the time of application. The delegate therefore found that the visa applicant did not satisfy cl.300.221 at the time of making his decision. Clause 300.221 requires that the visa applicant continue to satisfy cl.300.215 and cl.300.216, among other things.

5. The review applicant appeared before the Tribunal on 15 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The parties appeared via video as they were both in Albania at the time. The hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties genuinely intend to live together as spouses.

   Does the visa applicant intend to marry an eligible person?

9. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. At the time of application, the review applicant was an Australian citizen. Accordingly, the requirements of cl.300.211 are met.

   Have the parties met in person and are they known to each other personally?

10. Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally. The Tribunal has considered documents on the Department and Tribunal files and is satisfied based on those documents that the parties had met in person since they turned 18 and were known to each other personally at the time of application. Therefore, at the time of application, the requirements of cl.300.214 are met.

    Do the parties genuinely intend to marry?

11. 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.

12. Based on the evidence in front of it, the Tribunal makes the following findings. It accepts that at the time when the visa was applied for in June 2017, the parties had planned on getting married. It finds that they had a letter dated 2 June 2017 from an authorised marriage celebrant (refer Department folio 62) and had made plans to get married in March 2018. Although they did not end up getting married at that time (and still have not), the Tribunal finds that this did not affect their intention to do so at the time the visa applicant applied for the visa. Moreover, the Tribunal finds that it was reasonable for them to have nominated this date, which was around nine months after the date of application.

13. 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 was within the visa period as required by cl.300.215(b). Therefore, the requirements of cl.300.215 are met.

14. Furthermore, given that the review applicant has sought to rebook the date of the wedding ceremony a further two times, most recently in 2021, the Tribunal accepts that the parties still genuinely intend to marry and cl.300.215 is met for the purposes of the time-of-decision criterion in cl.300.221.

    Do the parties genuinely intend to live together?

15. 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). 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.

16. 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 findings below.

17. The Tribunal finds that the parties have combined their financial affairs to a limited extent. Although there is no evidence to show that the parties had any joint assets or debts at the time of application, the Tribunal accepts based on evidence in the Department and Tribunal files that the review applicant began remitting money to the visa applicant in October 2016, after he had returned to Australia from the parties’ claimed first meeting in Albania and almost a year before the visa was applied for. Based on the same evidence, it finds that he has made several money transfers since then. Even if it were to discount the remittances that are sent to the visa applicant’s brother, Mr Amarildo Pajo (presumably, on the visa applicant’s behalf), the remaining transfers when combined comprise a sizeable sum of money. Additionally, evidence in the form of a statement for a Commonwealth Bank travel card shows withdrawals that total $14,570 being made in Euros and Macedonian Denars during a period that corresponds with the period when the review applicant was outside of Australia in July to September 2018. The Tribunal accepts that this card belonged to the review applicant and that he paid for expenses during his time in the South-Eastern Mediterranean in 2018.

18. The Tribunal has considered the above evidence and other evidence on the Department and Tribunal files. Based on this evidence, it finds that the level of financial integration is appropriate to the circumstances faced by both parties, who have been living in separate countries for the vast majority of the length of their claimed relationship, are young and still live with their families It is given weight by the Tribunal in its overall consideration of whether the parties genuinely intend to live together as spouses.

19. The Tribunal has considered the evidence of the parties and of their families concerning the nature of their household, including declarations or similar made in favour of the parties’ relationship. It has also considered other documentary evidence such as movement records and other evidence of travel, and communications records including call logs and evidence of message conversations between the parties. The evidence shows that the review applicant travelled to Albania and the South-Eastern Mediterranean for one-and-a-half months between August and September 2016, five weeks in July and August 2017, almost two-and-a-half months between July and September 2018 and one month in December 2019 and January 2020. It also shows that the review applicant has been in Albania and surrounds since May 2021 and has not returned. At hearing, the Tribunal questioned him on when he plans to come back to Australia, and he replied that he has not booked a return flight and hopes to travel back together with the visa applicant.

20. In terms of the records of the parties’ communication, the Tribunal has seen a 14-page selection of the 1604 pages of text messages between the parties from July 2016 and December 2017. All up, it is said that there are upwards of 75,000 text messages during this period. The messages in the 14-page selection are written in a combination of Albanian and English, and while they are mostly short they are punctuated with longer messages that purport to give an insight into the love and emotional support that the parties offer to each other. Both parties contribute to the messages in roughly equal measure. While the Tribunal is not able to verify the exact number of messages, it appears clear to it that the parties have regularly communicated with each other since at least mid-2016 if not earlier.

21. Based on the above evidence and on other evidence in the Department and Tribunal files, the Tribunal finds that the review applicant has taken the opportunity to travel over to Albania and surrounding countries to visit and live with the visa applicant. It accepts based on this and the preponderance of other evidence such as photographs of the parties that the review applicant has been living with the visa applicant at her family home over several periods when he was there, and most recently since May 2021. Importantly, it accepts that at other times when the parties were not living together, they have communicated regularly and extensively with each other and have been offering each other emotional support. It accepts that this emotional support has sustained and strengthened their relationship. This evidence is given substantial weight by the Tribunal when considering the nature of the parties’ household.

22. Turning to the social aspects of the relationship, the Tribunal has seen several declarations and similar documents from the parties, their respective families and friends. The Tribunal raised concerns at hearing about the lack of evidence of engagement festivities, given the cultural significance said to be attached to this. The review applicant reiterated the engagement rituals that were said to have occurred in August 2015, including the giving of gifts and a lunch which was attended by members of both families.

23. The Tribunal went on to ask the parties about their plans to marry, including whether they had considered being married in a place of worship or by a religious person, given that they were planning to get married according to civil rites. The visa applicant told the Tribunal that it was not very common in Albania for people to get married in places of worship where they would have someone preside over the ceremony. Rather, she said, the signing of the papers would usually take place in front of the council. Both parties told the Tribunal that they plan to have a reception after their marriage. They said that this would take place in a function centre in Epping. The Tribunal is aware that the parties have attempted to make several bookings of the same celebrant, including for a date in 2021.

24. The Tribunal has viewed photographs of the parties in various holiday locations in Albania, North Macedonia and Turkey and accepts based on these and on evidence of travel such as itineraries, hotel bookings and flight tickets that they have been on holidays together. It has seen photographs of the parties with, mainly, members of the visa applicant’s family such as her mother and brother.

25. Based on all the evidence but especially the declarations from the parties and from others, and some photographic evidence showing the parties in the company of their families, the Tribunal accepts that they have been representing themselves to family members and some others as being in a relationship, and that these people regard them as such. It accepts as plausible the parties’ wedding plans vis-à-vis getting married according to civil rather than religious rites. In this regard, the Tribunal accepts that religion does not play a particularly large role in Albanian society, including the rites associated with marriage – the rate of and attitude towards intermarriage is an example of this.[1] It accepts that the parties have made plans as to their marriage ceremony (a civil ceremony officiated by a civil celebrant) and their reception (to be held at a venue that was identified by suburb by the visa applicant and by name by the review applicant). Lastly, the Tribunal finds that the parties have embarked on joint social activities, namely holidays in Albania, other parts of the Balkans, and Turkey. These findings, taken together, demonstrate to the Tribunal that the social aspects of the relationship point towards it being a genuine and continuing one.

    [1] See, e.g., Refugee Review Tribunal, “Country Advice: Albania – ALB36850 – Muslim-Christian Intermarriage – Albanian Social Attitudes – Italian Social Attitudes – Albanian & Italian State Protection – Relocation” (29 June 2010) 1, last accessed on 16 September 2021.

26. Dealing lastly with the nature of the parties’ commitment to each other, the Tribunal accepts based on the consistent and in most cases sworn evidence of the parties, members of their respective families and some friends, that they met through members of their respective families who live in Shepparton. It accepts that their families arranged for them to meet in Albania in August 2015. It accepts again based on their consistent written and oral evidence that they became engaged at that time. In making this finding, the Tribunal does not find it culturally atypical for members of a couple to become engaged to each other soon after meeting each other for the first time and through a “match-maker”.[2] Additionally, the review applicant highlighted the limited time he had in Europe (he returned back to Australia in September 2015 and spent most of August 2015 touring the region with his family on a pre-arranged holiday).

    [2] See, e.g., Hamzallari, “Engagement as a legal institution in the pre-comunist (sic) Albanian culture and its transformation as a social institution during the post-communist period”, European Journal of Research in Social Sciences (Vol 4, No 9) 2016, 28, last accessed on 16 September 2021.

27. The Tribunal has above found that the parties had been living together during periods when the review applicant was in Albania, staying at the visa applicant’s family home, and during periods when they went on holidays to various parts of the South-Eastern Mediterranean.

28. In relation to the degree of companionship and emotional support the parties draw from each other, the Tribunal relies in large part on the evidence already dealt with above in relation to the review applicant’s frequent travel to visit and live with the visa applicant and their constant and extensive communication with each other. Specifically, the decision taken by the review applicant to travel over in May 2021 during the very tight restrictions on overseas travel and risk not being able to freely return to Australia, his family and his employment is accorded significant weight. Lastly, the actions undertaken by the parties to maintain and strengthen their relationship over a period of six years from when they were first engaged indicate to the Tribunal that they view it as a long-term one.

29. Having taken into account the matters set out in r.1.15(3) in relation to the definition of spouse under s.5F(2), and based on the above evidence and findings, the Tribunal is satisfied that at the time of the visa application the parties genuinely intended to live together as spouses and continue to do so. Therefore cl.300.216 is met in itself and for the purposes of cl.300.221.

    Do the parties continue to meet time of application requirements?

30. 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 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.

31. The Tribunal has above made findings that cl.300.215 and cl.300.216 are met for the purposes of cl.300.221. Additionally, the review applicant continues to be an eligible person under cl.300.211 and the finding in relation to cl.300.214 about whether the parties have met each other in person since turning 18 and are known to each other remains.

1. Accordingly, these time-of-application criteria all continue to be satisfied at the time of decision, and cl.300.221 is met.

2. 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

3. 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, cl.300.214, cl.300.215 and cl.300.216 of Schedule 2 to the Regulations; and

   ·cl.300.221 of Schedule 2 to the Regulations.

   David Crawshay
   Member