Mancka (Migration)

Mancka (Migration) [2018] AATA 4631 (24 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Elvira Mancka
Mr Blendi Mancka
Mr Geraldi Mancka
CASE NUMBER:  1619647
DIBP REFERENCE(S):  CLF2013/12383
MEMBER:Helen Kroger
DATE:24 September 2018
PLACE OF DECISION:  Melbourne
DECISION: The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the primary applicant meets the following criteria for a Subclass 801 (Partner) visa:
.cl.801.221(2)(c) of Schedule 2 to the Regulations

Statement made on 24 September 2018 at 3:53pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine relationship –
sponsor controls financial aspects of the relationship – sole income earner – applicant undertakes household chores – social aspects – modest social network of friends and family – married with support of their children – commitment to each other – shared cultural heritage – maturity of both parties – living together since 2012 – decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), Schedule 2 cl 801.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 November 2016 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 17 January 2013. The delegate refused to grant the visa on the basis of his relationship with the sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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. Relevant to this matter, the primary criteria include cl.801.221.
The applicant was granted a Partner (Temporary) (Class UK) (Subclass 820) visa on 23 February 2013, thus making him eligible for the grant of a Partner (Residence) (Class BS) (Subclass 801) visa. The delegate refused to grant the latter a visa on the basis that the applicant did not satisfy cl801.221(2) as the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor as defined under sections 5F and 5CB of the Act. The applicant provided the Tribunal with a copy of the primary decision.
The review applicant and one of the secondary applicants appeared before the Tribunal on 3 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor (husband). The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant and sponsor first met briefly at a food festival in Shepparton in March 2008, when the applicant was visiting her sister who lives in Shepparton. The meeting was described by the applicant as “a brief encounter”. The parties were introduced by her brother-in-law who knew him. The sponsor was married to his first wife at this time. He travelled to Albania in 2009 and was asked to give the applicant some money from her family in Australia, and they organised to meet again. The sponsor was a widower whose husband had died in a road accident when her sons were much younger.
The parties gave evidence about this time in Albania when they met, having coffee together and then went out and shared meals together. The sponsor had been married to his then wife for around 30 years and they had been dealing with difficulties in the marriage. The sponsor explained that it was during this time in Albania that he realised he wanted to “formally” separate from his wife and file for divorce. He claims that they separated in 2008. The parties didn’t discuss his marriage in any depth at that stage, but later discussed it, and it was submitted that there was significant conflict due to gambling issues he had. In June 2009, the sponsor applied for a divorce.
The parties continued to communicate by phone and the sponsor transferred money into her account occasionally, and also sent cash of around $200 to her via friends visiting Albania. Over a period of time the parties decided to marry and the applicant arrived in Australia on 5 September 2012 to be married on 27 October 2012. They held a traditional wedding service that was attended by her sons, his children, the applicant’s sister and niece.
The applicant lived with her sister in Shepparton upon her arrival and moved in with the sponsor in his family home, immediately following the wedding. The applicant was accompanied by her two sons, and Blendi, one of the secondary applicants, continues to live with them. Geraldi, the other secondary applicant, is currently living in Albania. He returned there for family reasons without organising the necessary bridging visa so that he could return to Australia.
The parties have lived continuously together since their wedding in 2012.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether, at the time of this decision, the applicant is the spouse of the sponsor for the purposes of the Act.
Based on the information before the Tribunal, it is satisfied that the review applicant is at the time of the decision, an Australian citizen.
The applicants have provided a certified and signed copy of the Marriage Certificate that is dated 27 October 2012, and took place in Croydon, Victoria. The Tribunal is satisfied that the Certificate of Marriage is genuine and that 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?
Regulation 1.15A(3) provide relevant factors for determining whether a de facto or spouse relationship exists, which is extracted in the attachment to this section. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other.
The parties have provided the Tribunal with further documentary evidence in support of their application, in addition to that provided to the delegate along with oral evidence provided during a hearing. The Tribunal has had particular regard to the parties’ financial relationship, the nature of their household, the social aspects of the relationship, and the nature of their commitment to each other. On these aspects the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows (the evidentiary basis for the following is the audio recording from the Tribunal’s hearing and all the documentary evidence submitted by the parties).
The Financial Aspects of the Relationship
The Tribunal must consider all the financial aspects of the relationship including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources (especially in relation to major financial commitments); whether either person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day to day household expenses.
The sponsor is the sole income earner and works a six day week on an orchard, having Sunday’s off. He estimated his salary was between $600-$800 per week, depending on the availability of work. The applicant does not work outside the home and assumes responsibility for the household responsibilities. The secondary applicant, Blendi, lives in Shepparton during the week, as he is employed on a farm in the area, and frequently returns ‘home’ to the parties on weekends. The eldest son Geraldi, who is now in Albania, worked in a tiling shop in Shepparton before returning to Albania to visit family.
The house is the family home of the sponsor that he lived in with his first wife and their children. His first wife moved out and lives with their adult son. The title of the house is held in the name of the sponsor and utility statements remain in either his name or his name and his son’s. There is no evidence before the Tribunal to indicate that any money is directed into an Australian bank account in either the applicant’s name or the joint names of the parties. This is consistent with information provided to the hearing by the sponsor, with regard to his management of all financial matters. The sponsor assumes control, management and payment of all bills for the household and gives the applicant money for the purchase of personal items when and if required. He continues to make mortgage repayments for the house they live in.
The Tribunal has considered all the material provided, and notes whilst the parties do not share any substantial assets or debts, it is satisfied that the applicant and sponsor share all matters in relation to the financial aspects of their relationship, with the sponsor assuming all responsibility for both parties in relation to earning an income that is directed to the payments of all expenses. The Tribunal gives some weight to the shared nature of the financial aspects of the relationship.
The nature of the household
In assessing the nature of the household, the Tribunal gives weight to evidence of joint responsibility or shared responsibility for housework and chores, for the care and support of any children (where relevant), and the living arrangements of the parties.
The applicant and sponsor share the household with the two sons belonging to the applicant from a previous marriage. Whilst one of the sons is now living in Albania, he previously was located between Shepparton where he worked, and the family residence. Likewise, the second son spends his time between Shepparton and the family residence, depending on work availability and commitments. The sponsor continues to support this arrangement. Both sons are adults and therefore do not require the support and immediate care required by younger children, but return home on a regular basis, often weekly.
The parties provided consistent evidence in regard to the running of the household. As the applicant does not hold employment outside the home, she undertakes all the household chores, including the cleaning, laundry and cooking. As she does not drive, the sponsor drives her to the shops and together they shop for their weekly food supplies. The sponsor considers the maintenance and operations of the house as her responsibility as the sponsor works six days each week. She prepares all meals so that they are ready for his return home each day.
The applicant with her two sons moved into the family home immediately following her marriage and she has continuously lived there since.
The Tribunal has given careful regard to the current living arrangements of the parties, and the culturally traditional way in which the applicant undertakes all household chores and responsibilities whilst the sponsor works. The Tribunal recognises that this is an agreement that the parties have reached and has regard to their opinion that this is not unusual.
Accordingly, the Tribunal accords some weight to the nature of the household.
The social aspects of the relationship
In assessing the social aspects of a relationship, the Tribunal must have regard to all the social circumstances of the relationship including whether the parties represent themselves as a couple to other people as being married to each other; the opinion of the parties’ friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities.
The Tribunal has considered the nature of the relationship between the parties, neither who are youthful, and have both been previously married. Whilst the applicant was a widower, the sponsor was previously married for a significant time and has children to his previous wife. His ex-wife lives with his son Albert and evidence was provided that detailed when the son, his wife and mother needed to move in with the parties for a month whilst they were between properties. Details indicated that this arrangement was discussed and agreed upon between the parties, notwithstanding the potential awkwardness of having the ex-wife under the same roof as the applicant.
The second son who gave oral evidence, indicated that the marriage was something that his mother had discussed, and was supported by him and his brother. He indicated that he was young when his father died, and of his regard for his step father and his acceptance and welcome for the two sons.
A small number of photos were submitted of the parties that include events with the two secondary applicants along with a small group of extended family. The evidence before the Tribunal indicates that the parties have a very modest social network of friends and family and largely keep to themselves, as the sponsor works such a significant amount of his time.
The Tribunal has given careful regard to the social aspects of the relationship, the nature of the concern and responsibility for the secondary applicants, and the consultation with family members when making significant decisions. Accordingly the Tribunal gives some weight to the social aspects of the relationship.
The nature of the person’s commitment to each other
In assessing commitment to each other, the Tribunal must have regard to the duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the persons see the relationship as a long term one.
The Tribunal has carefully considered the length of the relationship and the nature of the relationship given the maturity of the ages of the respective parties. The parties have lived continuously together since their marriage in October 2012 and developed a respectful relationship prior to this, since 2009. The parties lived apart in these earlier years until the applicants moved to Australia in 2012.
The parties share a strong cultural and historical Albanian history, that provides the basis for the values they share and their priorities in their relationship. During the hearing, the sponsor indicated that the maturity of his age and the difficulties in finding employment in Albania to support his extended family was a mitigating factor in supporting the applicant to live with him in Australia.
Whilst the parties have indicated a simple lifestyle that revolves around work and family, the oral evidence indicates that they share modest ambitions for the future. Their shared heritage continues to be a factor in the way in which they consider and make plans. In their submissions to the Tribunal, the limited economic factors available in Albania is a factor in their wish to stay in Australia, in order to provide for themselves and extended family.
The Tribunal has had careful regard to the age of the applicant’s, the aspirations an “older couple” may share as opposed to a younger couple, that both parties have adult children, and that their wishes for a life together greatly vary to parties somewhat younger. The nature of this commitment to each other to safeguard their future together does not diminish their commitment to each other in any material sense.
Accordingly the Tribunal has given considerable regard to the oral evidence and documentation before it and the degree of understanding and commitment indicated. The Tribunal gives some weight to the nature of their relationship and finds that they demonstrate a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing.
FINDINGS
The Tribunal is satisfied that the parties’ marriage is valid for the purposes of the Act as required by s.5F(2)(a).
The Tribunal is satisfied that at the time of application and at the time of decision the review applicant and the visa applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal notes that due to geographical limitations, the parties live separately and gives little weight to their current living arrangements. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.
For the above reasons, the Tribunal is satisfied that at the time the visa application was made the parties were in a ‘married relationship’ within the meaning of s.5F(2) of the Act.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the primary 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.
It follows that the Tribunal also remits the applications of the other named applicants.
Helen Kroger
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day‑to‑day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long‑term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2018] AATA 4631

24 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice