1421365 (Migration)

[2016] AATA 4137

1421365 (Migration) [2016] AATA 4137 (22 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms LIJUN XU
Mr QILONG LUAN

CASE NUMBER:  1421365

DIBP REFERENCE(S):  OSF2012/099705

MEMBER:Di Hubble

DATE:22 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Migrant) (Class BC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl.100.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 22 July 2016 at 5:20pm

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 11 December 2014 to refuse to grant the visa applicants Partner (Migrant) (Class BC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 April 2012 on the basis of the first named applicant’s relationship with her sponsor and spouse, Mr Kevin George.  At that time, Class BC contained one subclass: Subclass 100 (Partner). 

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.

4. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy cl.100.221(2)(b) because the delegate was not satisfied that the applicant is the spouse or de facto partner of her sponsor.

5. The applicants, who were represented by a registered migration agent, sought review of the delegate’s decision on 31 December 2014.

6. The applicants appeared before the Tribunal on 21 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

7. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In this instance, the applicant claims to be the spouse of the sponsor, who is a ‘sponsoring partner’ within the meaning of that term.

8. ‘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 parties’ 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?

9. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.

10. The applicant and the sponsor were married in Frankston on 3 December 2011.  The delegate raised no concerns and there is no evidence before the Tribunal calling into question the validity of the marriage for the purposes of the Marriage Act.

11. On the evidence, 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?

12. The delegate made, in essence, a “no evidence” decision, documenting in the decision his various contacts with the parties’ previous migration agent in an ultimately futile attempt to elicit supporting evidence of the parties’ relationship.

13. At the Tribunal hearing, the sponsor expressed his frustration at the previous migration agent’s conduct of this matter, as a result of which the Tribunal gave an extension of time for the parties to provide additional evidence for the Tribunal’s consideration.  Shortly after the hearing, the applicants appointed the current representative, who subsequently provided the Tribunal with a great deal of documentary evidence that was not available to the delegate. 

    Financial aspects of the relationship

14. The applicant claimed that the sponsor is responsible for all their living expenses, including utility bills, grocery shopping, clothing, the mortgage and her telephone bills (her telephone number is registered under his name).  They have their own individual bank accounts as well as a joint bank account.  However, they do not use the joint account as their day-to-day account as there is no need to do so.  Each week the sponsor gives her $300 cash for groceries and pocket money and he always uses his business account for all other expenses.

15. The applicant stated that in 2014 the sponsor opened a restaurant for her as a surprise.  She kept all the cash takings and was responsible for grocery shopping, whilst the sponsor kept all card payments and was responsible for paying the restaurant lease, utility bills, labour costs and other expenses.  However, the restaurant did not run well and they closed it down in July 2015.  She is currently a housewife.  However, the sponsor has several investment properties and a factory business to run, so money is not an issue to them.  She is included in the sponsor’s will.

16. The representative provided a copy of the sponsor’s will, which leaves the parties’ Karingal home to the applicant, together with a number of bank statements, the parties’ respective telephone bills and a number of energy bills, all of which are paid by the sponsor. 

17. The Tribunal notes that in the recent judgment of Singh v Minister for Immigration & Anor [2016] FCCA 114 the Federal Circuit Court held that the regulations do not require a sharing of household expenses to establish a genuine relationship. Rather, the regulations only refer to “any” sharing of household expenses, which could include one party paying for utilities and food whilst the other pays the mortgage or one paying for all the household expenses and the other keeping any earnings for personal use.

18. Based on the evidence currently before the Tribunal, when viewed in light of the Federal Circuit Court’s decision in Singh, the Tribunal is satisfied as to the financial aspects of the relationship.

    Nature of the household

19. The parties claimed that they live at their Karingal home with the applicant’s son, Qi Long (David), who is employed by the sponsor in his business as an apprentice.

20. The sponsor also claimed that his older son, Rasta, who was not well, lived with them for 3 to 4 months and was cared for by the applicant.  A statutory declaration by Rasta was provided, which confirmed that he lived with the parties from August to November 2015.  Rasta claimed that he witnessed the parties’ day-to-day interactions during this period and he expressed his belief that their relationship is genuine and continuing.

21. The parties both stated that the applicant attends to the housework, including laundry, cleaning and cooking, although the sponsor cooks whenever he is able.  The applicant has a vegetable garden with 9 chickens in the garden at their home.

22. On this evidence, the Tribunal is satisfied as to the nature of the household.

    Social aspects of the relationship

23. The applicant claimed that she and the sponsor always appear as a couple to all of their friends and the sponsor’s colleagues and it is known by his employees and business clients that she is the sponsor’s wife.  They attend family functions and socialise together with family, friends and business acquaintances. 

24. The applicant stated that she and Qi Long have a good relationship with the sponsor’s family and his children regularly come to their place for BBQs and family dinners.  In 2013 they also holidayed together with the sponsor’s children and his mother.  They are members of the Frankston RSL and go for dinner there about once a week.

25. Six statutory declarations were provided by various family members, friends and colleagues, attesting to the genuine nature of the parties’ relationship. 

26. On this evidence the Tribunal is satisfied as to the social aspects of the relationship.

    Nature of the persons’ commitment to each other 

27. In their respective statutory declarations, the parties set out the development of their relationship and their feelings for each other.  These statements demonstrate their knowledge of each other’s personal circumstances and their plans for the future.

28. The evidence available to the Tribunal establishes that the applicant and the sponsor are now in a long-term relationship which commenced 5 years ago, and they married more than 4½ years ago.  The Tribunal is satisfied that they provide each other with companionship and emotional support, and they see the relationship as long term.  Accordingly, the Tribunal is satisfied as to the nature of their commitment to each other.

29. On the evidence overall, the Tribunal finds that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others; the relationship between them is genuine and continuing; and they live together and do not live separately and apart on a permanent basis, thereby satisfying the requirements of s.5F(2) for being in a married relationship.

30. 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.100.221(2)(b).

31. Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.

    DECISION

32. The Tribunal remits the applications for Partner (Migrant) (Class BC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl.100.221(2)(b) of Schedule 2 to the Regulations.

    Di Hubble
    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).