1418506 (Migration)

[2016] AATA 3585

1418506 (Migration) [2016] AATA 3585 (24 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Li Zhang
Mr Jiachen Jiang

CASE NUMBER:  1418506

DIBP REFERENCE(S):  CLF2014/124611

MEMBER:John Billings

DATE:24 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.

Statement made on 24 March 2016 at 10:49am

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 31 October 2014 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are the first named applicant (Ms Zhang) and her 23 year old son (Ms Zhang’s son). 

3. Ms Zhang applied for the visa on 31 October 2014 on the basis of her relationship with her sponsor, Mr Da Wei Zhu, who is a 65 year old Australian citizen. At that time Ms Zhang applied, 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. Relevantly to this matter the primary criteria include cl.801.221 and cl.801.231.

4. The delegate refused to grant the visa on the primary basis that Ms Zhang did not satisfy cl.801.221.  The delegate was not satisfied that Ms Zhang and Mr Zhu were in a genuine and continuing spousal relationship. 

5. Ms Zhang provided a copy of the primary decision with the application for review.  The delegate noted there allegations made to the Department on 5 June 2014 to the effect that Ms Zhang and Mr Zhu were in a contrived relationship; that she had paid him $50,000.00 to sponsor her; that she and he were not living together; and that each of them was in a relationship with another person. The delegate referred to evidence that Mr Zhu’s former wife owned the property where Ms Zhang and Mr Zhu were claimed to live; that Mr Zhu and his former wife had travelled abroad together in October 2013 and September 2014 (after Ms Zhang married Mr Zhu); and that Mr Zhu’s former wife had declared that property as her address on her incoming passenger cards.  The delegate also noted inconsistent information given by the parties to the Department at an interview conducted on 7 October 2014.   

6. The applicants were represented in relation to the review by their registered migration agent.

7. There was no hearing.  The Tribunal invited the applicants to appear before the Tribunal on 24 March 2016 to give evidence and present arguments. The applicants’ response to the hearing invitation indicated that they, the sponsor and the representative would not attend the hearing.  A case note made on 21 March 2016 indicates that an officer of the Tribunal contacted the representative that day and that the representative stated that Ms Zhang would be making a request for the Minister to intervene.  In email dated the same day the representative advised the Tribunal that Ms Zhang did not wish to withdraw the application because she needed a decision of the tribunal in order to make a request for ministerial intervention.  On 23 March the Tribunal sent an email to the representative drawing her attention to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1 – 16.7 concerning referrals for ministerial intervention.  There was no attendance on 24 March.  In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it. 

8. Ms Zhang is a 48 year old national of China.  She first came to Australia in 2010 as a student.  She returned to Australia in 2011 and again in 2012 as a tourist.  On 26 February 2013 she arrived holding a Class TO Subclass 300 Prospective Spouse visa.  On 11 April 2013 she was granted a Class UK Subclass 820 visa.  Ms Zhang’s son first came to Australia in 2009 as a student.  In the next couple of years he departed and re-entered Australia twice.  He was granted a further Student visa in 2012.  He departed Australia at the end of that year before the visa ceased in early 2013.  He returned to Australia on 26 February as a secondary holder of the Class TO Subclass 300 visa.  He later became a secondary holder of the Class UK Subclass 820 visa.  Ms Zhang and her son currently hold Bridging A visas. 

9. According to the visa application, Ms Zhang and Mr Zhu first met in Australia on 8 September 2009.  They decided to commit to a long term relationship in March 2012.  They were married in Melbourne on 5 March 2013.  Both of them were previously married but had divorced. 

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether Ms Zhang and Mr Zhu have been and are in a genuine and continuing spousal relationship.  They provided limited material to the Department in support of the application.  They have provided no material to the Tribunal in support of the application despite an invitation to do so.  They have not given evidence or made submissions in relation to the concerns that the delegate had that are summarised above.  The Tribunal discusses specific considerations below.  In summary, the Tribunal is not satisfied that Ms Zhang and Mr Zhu have been and are in a genuine and continuing spousal relationship. 

    Whether the parties are in a spouse or de facto relationship

12. 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.

13. ‘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?

14. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. On the basis of the marriage certificate provided to the Department, which records the conjugal status of each party as “divorced”, 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?

    Financial aspects of the relationship

15. There is limited evidence in relation to the financial aspects of the relationship.  That consists mainly of some bank statements for joint bank account that were provided to the Department.  The statements provide limited evidence of any sharing of day to day expenses or pooling of financial resources.  In the primary decision the delegate noted that some of the financial information provided to the Department was incomplete and unexplained. 

16. The Tribunal places very limited weight on this consideration. 

    Nature of the household

17. The joint bank account statements mentioned above were addressed to Ms Zhang and Mr Zhu at a common address.  Otherwise there is no evidence to support the claim that Ms Zhang and Mr Zhu have shared a household.  On the contrary there is the evidence noted by the delegate in the primary decision indicating that Mr Zhu and his former wife were living together at that address, a property that Mr Zhu’s wife owned.  The delegate also noted evidence that Ms Zhang’s son was residing at another address but that the Department had not been notified of that.    

18. The Tribunal places no weight on this consideration.

    Social aspects of the relationship

19. The marriage certificate is apparently signed by witnesses but there is otherwise no evidence before the Tribunal in relation to the social aspects of the relationship.  Accordingly, the Tribunal places no weight on this consideration. 

    Nature of persons’ commitment to each other

20. There is no evidence before the Tribunal that would enable it to make findings in relation to the duration of the relationship; the length of time, if any, that Ms Zhang and Mr Zhu have lived together; the degree of companionship and emotional support, if any, that they have drawn from each other; and whether they see the relationship as a long-term one.  The Tribunal therefore places no weight on this consideration. 

21. On the basis of the material before it, the Tribunal is not satisfied that Ms Zhang and Mr Zhu have had and continue to have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them has been and remains genuine and continuing.  The Tribunal is not satisfied that Ms Zhang and Mr Zhu live together or that they do not live separately and apart on a permanent basis.  

22. Given these findings the Tribunal is not satisfied that Ms Zhang and Mr Zhu have been in a spousal relationship.

23. Therefore Ms Zhang does not meet the criterion in cl.801.221.

24. There is no claim that Ms Zhang satisfies any of the alternative criteria in cl.801.221 and there is no evidence that would support any such claim.

25. As Ms Zhang has not been granted a Subclass 801 visa her son does not meet the requirements of cl.801.321. 

26. For the above reasons, the applicants do not satisfy the criteria for the grant of the visas.

    MINISTERIAL INTERVENTION

27. Section 351 of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.  The Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1 – 16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in the Procedures Advice Manual 3.

28. The Tribunal drew the attention of the applicants’ representative to the President’s Direction.  No request for the Tribunal to refer the case has been made, and no evidence or submissions to support such a request have been provided.  Recent communications received by the Tribunal from the representative indicate rather that the applicants intend themselves to make a request for ministerial intervention. 

29. The Tribunal does not refer this case to the Department for the case to be drawn to the attention of the Minister.  The applicants have not requested the Tribunal to do that.  The Tribunal notes that the applicants may make a request directly to the Minister. 

    DECISION

30. The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.

    John Billings
    Senior 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).