1412483 (Migration)

[2015] AATA 3356

1412483 (Migration) [2015] AATA 3356 (7 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr David Hua Mo

VISA APPLICANT:  Ms Dai Hua Tang

CASE NUMBER:  1412483

DIBP REFERENCE(S):  2013024307

MEMBER:Kate Timbs

DATE:7 September 2015

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 criteria in cl.309.211 and 309.221 of Schedule 2 to the Migration Regulations 1994.

Statement made on 07 September 2015 at 10:30am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application by Mr Mo for review of a decision made by a delegate of the Minister for Immigration on 7 May 2014 to refuse to grant Ms Tang a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Tang applied for the visa on 28 June 2013 based on her relationship with Mr Mo, her sponsor. At that time, Class UF contained only one subclass: Subclass 309 - Partner (Provisional). The criteria for the grant of this visa are in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly, for the visa to be granted, Ms Tang must satisfy the primary criteria that she was the spouse or de facto partner of Mr Mo at the time of application and the time of the delegate’s decision (clauses 309.211 and 309.22)

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy those criteria. On 16 July 2014, Mr Mo applied for review of that decision by the Tribunal.

4. The Tribunal heard the application on 13 August 2015.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant law and matters for the Tribunal to consider

5. Ms Tang will satisfy the criteria in cl.309.211 and 309.221 if she was the spouse of an Australian citizen when she applied for the visa and at the date of the decision about the visa. Mr Mo is an Australian citizen at relevant times. It follows that the issue for the Tribunal to determine is whether they were spouses at those times.

   Evidence considered

6. The Tribunal considered records relevant to the decision under review provided by the Department of Immigration and Border Protection (the Department) and documents provided by Mr Mo. It heard oral evidence from Mr Mo and Ms Tang at hearing.

   Whether the parties are in a spouse or de facto relationship

7. ‘Spouse’ is defined in s.5F of the Act. It provides a person is the spouse of another if they 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.

8. Regulation 1.15A provides that, to form an opinion as to these matters, the Tribunal (in place of the Minister) must consider all of the circumstances of the relationship between the visa applicant and sponsor, including:

   ·     the financial aspects of the relationship;

   ·     the nature of their households;

   ·     the social aspects of the relationship

   ·     the nature of their commitment to each other.

   Are the parties validly married?

9. A sealed certificate on the Department’s file shows the Ms Tang and Mr Mo married in on 20 June 2012 in Guangzhou City, Guangdong Province, China. Based on that evidence, the Tribunal finds the marriage is valid.

   Are the other requirements for a spousal relationship met?

   Mr Mo and Ms Tang’s Background

10. Mr Mo was born in Guangzhou Province in China and is 50 years old. He came to Australia in 1987 and became an Australian Citizen in 1996. He currently lives in Marsfield with his mother. He was not previously married but had a de facto relationship from 1999 to 2003. He has two teenage children from the relationship who live with their mother.

11. Ms Tang was born in Hunan Province in China and is 34 years old. She has lived in Guangzhou at relevant times. She was previously married for a short period in 2005. She had no children when she applied for the visa.

    Development of relationship

12. The evidence of both parties is that they met in late 2007 through Ms Tang’s brother.  They both gave the Tribunal consistent evidence of their meeting and a business relationship between Mr Mo and Ms Tang’s brother. They both said they started an intimate romantic relationship in early 2008. Mr Mo has visited China two to four times each year since then. He said he has some business interests in China but, from late 2008, the main reason for going to China has been to see Ms Tang. He said he was committed to the relationship from then and the relationship became more serious when Ms Tang moved into a property that he owned in 2011. Their evidence is that, except for a period (discussed below), she has lived in that property or a jointly owned property they later purchased. They both said they live together when he is in China.

13. As noted, they married in 2012 and they had their first child together in March 2015.

    Financial aspects of the relationship

14. Mr Mo said they bought a property together in 2013. He said Ms Tang contributed her savings and that he used money from the sale of his other property. They have a mortgage and Ms Tang was concerned about the debt. In September 2013, she moved to live with her sister and rented the property out to foreign students. (Both gave consistent evidence about the nationality of the students.) They stayed in a hotel together when Mr Mo was in China until about ten months later when Ms Tang moved back into the property. They said they have since lived there together when he is in China.

15. As noted, Mr Mo and Ms Tang jointly own their home in China. The Department noted that the mortgage was in Mr Mo’s name only. Mr Mo told the Tribunal that he did not know why this was the case but, in any case, he has always been responsible for paying the mortgage.

16. Mr Mo and Ms Tang both said that Ms Tang met her other day-to-day expenses from her work as a bookkeeper or selling clothes before she was pregnant. Mr Mo transferred her money to pay the mortgage and for unusual expenses (such as medical treatment). He now meets her day-to-day expenses because she stopped work when she became pregnant. The Tribunal accepts this evidence and finds the pooling of resources and sharing of expenses is consistent with a mutual commitment to a shared life.

17. There is no evidence that either party has a legal obligation to the other party, other than any obligation of support owed under Chinese law to a spouse.

    Nature of the household

18. As noted, the parties live together in their jointly owned home when Mr Mo is in China. Ms Tang has primary care of the baby and her sister presently lives with her to help with the baby. Both said Mr Mo supports her in this role and shares the care for the baby when he is in China.

19. Both said that they share the housework when Ms Tang is in China except that Mr Mo does almost all of the cooking (because Mr Mo is not a very good cook).

20. They said that, if the Department grants the visa, they plan to live together in the apartment Mr Mo now shares with his mother when he is in Australia. They both said Ms Tang would help care for his mother in the future. (She is currently well but is elderly.) The Tribunal noted Ms Tang told the Department that Mr Mo lives in a house, rather than an apartment and suggested, if they genuinely plan to live together in Australia,  it was likely that that they would have discussed where they lived. Ms Tang said it did not matter to her and she is sure that any accommodation provided will be suitable. The Tribunal did not find this to be a convincing explanation but finds it does not weigh heavily in the light of other evidence.

    Social aspects of the relationship

21. The Tribunal noted Ms Tang and Mr Mo provided some troubling evidence about the social aspects of the relationship.

22. Ms Tang gave the Department the contact numbers for her sister and brother to confirm details about the relationship. However, when the Department spoke to Ms Tang’s brother he did not know Mr Mo’s name. Mr Mo told the Tribunal that he was embarrassed and said that, despite a long acquaintance, Ms Tang’s brother did not know his English name. Ms Tang said that her brother always uses the nickname “old Mo” when talking to, or about, Mr Mo. This is surprising but the Tribunal accepts the explanation.

23. Ms Tang told the Department that there was one table at their wedding celebration while Mr Mo said that there were two tables. They both told the Tribunal that there was a children’s table and the Tribunal finds their evidence to the Department was therefore consistent.

24. Ms Tang’s sister told the Department that there were five tables at the wedding celebration. Both said that she is very shy; not used to speaking to officials; she speaks a dialect and does not speak Mandarin well. Ms Tang said that she was confused and exaggerated the number of tables because it would look better for the family. Again, the Tribunal accepts the explanation. It finds there was a wedding celebration attended by Ms Tang’s family and that they presented themselves at that time as married to each other to Ms Tang’s friends and family.

25. Mr Mo told the Department that he had not spoken about the wedding or the relationship in any detail with his parents. His mother and father did not attend the wedding celebration.

26. He said his mother and father separated a few years ago after a very long marriage and his father returned to China. He said his mother became very cynical about relationships generally and did not want him to become emotionally attached to Ms Tang. She worried about the age difference and that he might be hurt in the same way as she had been hurt when her marriage ended. In addition, he said that he did not talk to her about the wedding or invite his sister because the marriage was not very important to him. He noted he had not married his first partner and that it is more important to him to be together as a happy couple than to have a wedding and be publicly known as a married couple. He said his mother now accepts the relationship and she visited China in to see the baby in April 2015. They both said that Ms Tang and his mother get on well and his mother is looking forward to Ms Tang and the baby coming to live with them in Australia.

27. Mr Mo’s father did not attend the wedding celebration. Mr Mo said he has become difficult as he became older and, at that time, he believed Mr Mo was trying to steal his money. He said they have since reconciled and that his father came to live in their apartment in China after an injury to his leg. Ms Tang cared for him for some months. He gets on well with her and now supports the relationship.

28. The Tribunal is satisfied that, at the time of hearing, Mr Mo and Ms Tang presented themselves to his family members as being married to Ms Tang. In that light, it is not significant that they did not do so when Ms Tang made the visa application.

29. The Department noted that there was little evidence of social outings together (such as photos). They both described a quiet social life and that neither have a wide group of friends. Ms Tang spends time playing mah-jong with neighbours. Ms Tang has taught Mr Mo how to play and he now joins in with them. They have not been on holidays but Mr Mo has visited her family in a rural area on three occasions. (Ms Tang’s sister is living with them now to help with the baby.) The Tribunal finds they have a quiet life and this explains why they have little evidence of presenting themselves to others as a married couple. The Tribunal does not find this weighs against finding that this is the case.

    Nature of commitment to each other

30. The evidence is that Mr Mo and Ms Tang have known each other for many years and that they have lived together in China since 2011 during Mr Mo’s frequent visits. Both gave evidence that they are committed to the relationship. They appear to care for each other and there is no doubt they love their child. The Tribunal accepts that they provide each other with emotional support and companionship and their decision to have a child demonstrates they see their relationship as long-term.

31. The Tribunal finds that the nature of their commitment is consistent with a married relationship.

    Conclusion

32. The Tribunal has noted some troubling evidence provided to the Department that reasonably gave rise to suspicion that the relationship between Ms Tang and Mr Mo is not genuine. However, this was explained to the Tribunal’s satisfaction and there is significant evidence demonstrating otherwise. The Tribunal has had regard to the development of the relationship and the other relevant matters in the headings above. It finds that, at relevant times, they have had a mutual commitment to a shared life and their relationship is genuine and continuing.

33. As noted, Mr Mo has travelled frequently to China and that he lives with Ms Tang at those times. The Tribunal finds that they have not lived separately and apart on a permanent basis at any relevant time.

34. Having made the above findings, the Tribunal further finds that Mr Mo and Ms Tang were in a married relationship when she made the visa application and at the time of the Tribunal’s decision. This means she was the spouse of an Australian citizen at relevant times and meets the criteria in cl.309.211 and 309.221. In that case, the Tribunal will remit the matter to the Minister for consideration as to whether she meets the other criteria for the visa.

    DECISION

    The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the criteria in cl.309.211 and 309.221 of Schedule 2 to the Migration Regulations 1994.

    Kate Timbs
    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).