1416955 (Migration)

[2015] AATA 3941

1416955 (Migration) [2015] AATA 3941 (24 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YINGDA CHEN

CASE NUMBER:  1416955

DIBP REFERENCE(S):  CLF2012/136810

MEMBER:Catherine Wall

DATE:24 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the 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 December 2015 at 10:04am

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 on 3 October 2014 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Yingda Chen is a 34 year old citizen of China. He applied for the visa on 28 June 2012 on the basis of his relationship with his sponsor, Ms Qian Huang, a 27 year old Australian citizen. 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).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied that the applicant is the spouse of his sponsoring partner.

4. Mr Chen appeared before the Tribunal on 15 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Huang, and from Mr Chen’s aunt, Ms Ping Chen. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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 at the time of decision the applicant, Mr Chen, is the spouse of the sponsoring partner, Ms Huang.

   SPOUSE/DEFACTO (cl.801.221(2))

   Whether the parties are in a spouse or de facto relationship

8. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

9. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons 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: s.5F(2)(a) - (d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The Tribunal finds that the parties married in Melbourne on 25 July 2011, as evidenced by a marriage certificate issued by the Registry of Births, Deaths and Marriages, Victoria. There is no evidence before the Tribunal that either party was previously married. On the evidence, the Tribunal finds 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?

11. At the outset the Tribunal notes that the parties’ relationship since they married in 2011has been unconventional. During the period 2011 to 2014 they lived in different states and demonstrated little evidence of shared financial arrangements or shared social activities. However, the Tribunal must consider the parties’ circumstances at the time of this decision. For the reasons that follow, the Tribunal is satisfied on the basis of the material before it that the visa applicant is the spouse of the sponsor within the meaning of r.1.15A of the Regulations.

    Nature of the commitment

12. Mr Chen told the Tribunal that he met Ms Huang in April 2011 while she was living in Sydney and he was living in Melbourne, and that he and Ms Huang have been in a committed married relationship since July 2011. He said that they were unable to live together between 2012 and 2014 because Ms Huang was granted a Subclass 119 (Regional sponsored migration scheme) visa and was required to work for that employer in Esperance, Western Australia, for a 2 year period.  After they married, he remained in Melbourne because Ms Huang was expecting to start her 2 year employment contract in Esperance at any time, so they decided it was not worth either of them relocating temporarily. The Tribunal heard that Ms Huang waited over 12 months to receive her visa, and this is the reason for their separation prior to her move to Esperance. The Tribunal finds that Department movement records show that Ms Huang was granted a Subclass 119 visa on 28 May 2012, and Ms Huang provided a copy of a 2 year employment contract with Kungfu East Pty Ltd, Esperance.

13. The Tribunal asked Mr Chen why he did not accompany Ms Huang to Esperance. He said that he did go to Esperance for 3 months in October 2012, however he was unable to obtain local employment so he returned to Melbourne where he lived with his Aunt and worked.

14. The Tribunal asked how often the parties visited each other during the period that Ms Huang lived in Esperance. Mr Chen submitted documentary evidence of his flights from Melbourne to Perth on 19 July 2011 (return 22 July 2011), 3 October 2012 and 12 October 2012. He also submitted a copy of a return flight from Melbourne to Sydney on 27 January 2012. Ms Huang said that Mr Chen visited her 4-5 times in Esperance, and that she visited him in Melbourne 2-3 times.

15. Phone records submitted by Mr Chen for the periods Jan-February and May-September 2011 indicate that he made calls to Ms Huang’s mobile phone on an irregular basis, with periods of up to 2 weeks between calls. The Tribunals view, based on the evidence of communication between the parties between 2011 and 2014, is that they maintained contact however it was not frequent and it was of relatively short duration.

16. The Tribunal observed that the parties were married just 3 months after meeting for the first time, and that they appeared to lead quite separate lives from the time of their marriage until they rented an apartment together in Sydney in October 2014. Mr Chen said that their parents told them that they must concentrate on getting jobs and saving money so that they can purchase their own home and have children. He said that it was necessary for them to live apart in the short term so that they could achieve their longer term goals together.

17. The Tribunal has had regard to a rental agreement in both parties names for a property in Lidcombe, NSW, for a six month period from October 2014, and a rental agreement in both parties’ names for a property in Silverwater, NSW, for the period August 2015 to August 2016. The Tribunal has also considered a contract of sale document which indicates that both parties purchased an off-the-plan property in Murrumbeena, Victoria, in August 2015. The parties told the Tribunal that their plan is to remain in Sydney, where Ms Huang has full-time employment, until their property in Murrumbeena is completed.

18. The parties said that they are currently trying to have a baby. The Tribunal asked how they will manage this financially, given that Mr Chen does not have work-rights and they are living on Ms Huang’s salary. Mr Chen said that their parents have told them that they must now have a baby, and it is not up to them to stop that plan. They also said that they will move to Melbourne when they have a baby so that Mr Chen’s aunt can care for the baby while they work.

19. The Tribunal is mindful that the parties have travelled overseas separately since their marriage, however the Tribunal considers that their explanation for the separate travel is credible.

20. The Tribunal found the parties’ evidence about their current circumstances and future plans to be consistent. They demonstrated that they have a sound understanding of each other’s family and personal circumstances, and that they share personal information in a manner consistent with being in a spousal relationship.

21. Despite the parties’ unusual past arrangements, the Tribunal is satisfied that at the time of decision they have a mutual commitment to a life together, that they have purchased a home together and are planning children. 

    Nature of the household

22. The Tribunal accepts that the parties have lived together in Silverwater since August 2015, on the basis of oral evidence and documentary evidence of a joint rental agreement. They provided credible and consistent accounts of their domestic activities.

23. On the evidence before it, the Tribunal is satisfied that the parties share a household at time of decision in a manner consistent with being in a spousal relationship.

    Financial aspects

24. The Tribunal heard that Ms Huang’s income is shared with Mr Chen, and this claim is supported by joint bank account statements which show regular transactions consistent with an active household account. Both parties said that Mr Chen manages their finances. When the Tribunal questioned Mr Chen about specific transactions, he demonstrated that he is very familiar with the management of the account.

25. The Tribunal accepts that the parties have purchased a property in Victoria together. On the evidence, the Tribunal is satisfied that the parties share financial resources and make joint financial decisions in a manner consistent with being in a spousal relationship.

    Social aspects

26. The parties gave consistent account of recent social activities and relationships with friends. The Tribunal gives weight to oral evidence from Mr Chen’s aunt, Qui Ping Chen. She attested to the parties’ genuine relationship, and her efforts to help them out by lending them money for the deposit on their home. She said that they will repay her when Mr Chen is able to obtain work.

27. The Tribunal has taken into account a statutory declaration from Ms Huang’s friend, Quiling Yu, dated 9 December 2015. Ms Yu describes the development of the parties’ relationship over time, and attests to their love for each other. The Tribunal has also sighted photographs of the parties in various social settings, including at Ms Huang’s citizenship ceremony.

28. The Tribunal is satisfied, on the evidence available, that  the parties represent themselves to other people as being in a married relationship with each other, that family and friends and acquaintances are aware of the nature of the relationship and socialise with them as a couple

    Summary

29. The Tribunal, at review, has strongly tested the genuineness of the spousal relationship, having regard to the relevant considerations in r.15A. The Tribunal accepts that, in these specific circumstances, the unconventional aspects of the parties’ relationship arise from family and cultural expectations. The Tribunal concludes that the parties adopted a very pragmatic approach to their relationship, having accepted their parents’ view that temporary separation was necessary in order for them to build the foundations for future success. The evidence indicates that, as soon as Ms Huang completed her 2 years of sponsored employment in Esperance, the parties starting living together in Sydney, and Ms Huang has been financially supporting Mr Chen since that time. In this context, and having found the parties’ evidence to be consistent and credible, the Tribunal is satisfied that the spousal relationship between Mr Chen and Ms Huang is genuine and continuing.

30. 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, the Tribunal considers these findings together demonstrate that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and the relationship is genuine and continuing. The Tribunal is further satisfied that the parties live together and do not live separately and apart on a permanent basis. They therefore meet the requirements of s.5F for a married relationship.

31. Given these findings the Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant meets cl.801.221(2)(c).

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 801 visa.

    DECISION

33. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2)(c) of Schedule 2 to the Regulations.

    Catherine Wall
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).