1510895 (Migration)

[2016] AATA 4231

1510895 (Migration) [2016] AATA 4231 (8 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TAEHO YANG

CASE NUMBER:  1510895

DIBP REFERENCE(S):  CLF2012/165833 CLF2015/51539

MEMBER:Kira Raif

DATE:8 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 08 August 2016 at 4:58pm

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 28 July 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of South Korea, born in April 1948. He applied for the visa on 10 August 2012 on the basis of his relationship with the sponsor. The applicant was granted the temporary Partner visa in March 2012, however, his application for the permanent visa was refused because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. A number of friends and relatives attended the Tribunal hearing to present oral evidence but the Tribunal determined it was not necessary to take oral evidence from these witnesses, firstly because they all provided written statements to the Tribunal, and also because the Tribunal accepts that they believe the relationship to be a genuine one and have observed the couple together.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, 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).

6. 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 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.

7. ‘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).

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with the application evidence of having registered marriage with the sponsor in July 2012. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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?

9. The Tribunal has considered the nature of the household. The parties gave broadly consistent evidence about their living arrangements and daily activities and the Tribunal accepts that they reside together and share the housework. They have no joint responsibilities for care and support of children.

10. The Tribunal has considered the financial aspects of the relationship. There is evidence before the Tribunal that the couple have a joint account from which they pay for various expenses. The Tribunal acknowledges that evidence and accepts that there is a degree of sharing of financial resources. The Tribunal accepts that the parties jointly contribute to certain expenses. However, the Tribunal has also formed the view that they prefer to keep their finances separate and that there is little discussion between the applicant and the sponsor about their financial affairs.

11. In his oral evidence to the Tribunal, the applicant

    a.Did not know how much the sponsor received from Centrelink. He explained it is her “personal matter” and that they do not discuss such matters. The applicant also said that maybe the sponsor’s nephew provides financial support to her but he was not sure.

    b.Did not know how much the sponsor had in her own bank account. The applicant informed the Tribunal that he also had a term deposit but that he did not inform the sponsor about it because culturally, Korean men do not discuss such matters with their wives.

    c.Both the applicant and the sponsor said the applicant’s children send him money. The applicant said the money is always sent through other people and never formally, such as through a bank or a money transfer. The sponsor said the money is transferred into the applicant’s bank account. She ultimately said she did not know how the money is sent.

    d.Both partners agreed that they did not inform Centreilnk about the marriage until about 2014 or 2015 and both said the Centrelink payments were reduced. The applicant informed the Tribunal that the sponsor had to repay the debt to Centrelink but he was not certain if it was being repaid. The sponsor said there is no debt to Centrelink.

    e.The applicant said he has a term deposit at NAB. The sponsor said he may have another account or two but she was not sure. She did not know in which bank the applicant’s accounts were held or the amount in these accounts.

12. The Tribunal acknowledges that the rent and some other expenses are paid from the joint account and that there is a degree of sharing of resources, but the couple’s limited knowledge about each other’s finances, their deliberate withholding of information from each other (for example, in relation to the applicant’s ‘secret’ deposit account), their failure to discuss financial affairs with each and the applicant’s reference to it being a ‘private matter’ is of significant concern to the Tribunal.

13. The Tribunal acknowledges the submission from the applicant’s representative that consideration must be given to the applicant’s claims that culturally, financial matters are not discussed in Korean families and that does not imply the relationship is not genuine. Putting aside the fact that there is little independent evidence to confirm that finances are not discussed in Korean families, the Tribunal is mindful that the parties do claim to be sharing their financial arrangements and rely on the fact of such sharing as evidence of their committed relationship. Having regard to the parties’ oral evidence, the Tribunal has formed the view that the sharing of finances is minimal. The parties’ unwillingness to discuss their financial affairs with each other suggests to the Tribunal that they do not view their relationship as a long term one and lack mutual commitment to the relationship.

14. There are several statements from third parties attesting to their belief that the relationship is a genuine one. As noted above, several witnesses attended the Tribunal hearing, willing to attest to their belief that the relationship is a genuine one. The Tribunal acknowledges that evidence and accepts that the applicant and the sponsor represent themselves to others as being married. The Tribunal accepts that friends, acquaintances, certain relatives and community members believe the relationship to be a genuine one. The Tribunal accepts that the parties plan and undertake joint social activities.

15. The Tribunal has considerable concerns about the limited recognition of the relationship by family members. The applicant’s evidence to the Tribunal is that he has not formally introduced the sponsor to his immediate family in Korea, even though he claims to have a close relationship with them, and because of that there has been no contact between the sponsor and his sister and children. The applicant claims Korean culture demands a formal introduction first before there could be any contact between the sponsor and his family but the sponsor’s evidence to the Tribunal is that she was curious about the lack of introduction. That is, the cultural considerations to which the applicant referred do not appear to be of any concern or significance to the sponsor or she is simply unaware of these. In such circumstances, the Tribunal does not accept that either cultural considerations or any other constraints prevented the applicant from introducing the sponsor to his sister and children. It also does not appear that the applicant explained to his wife his failure to introduce her to his relatives and in the Tribunal’s view, if the sponsor was interested in getting to know the applicant’s family, she could have insisted on an introduction or at least an explanation for its absence. The applicant’s failure to introduce the sponsor to his immediate family in Korea offers a strong indication to the Tribunal that he does not view the relationship as a long term one and lacks commitment to the relationship.

16. It is of concern to the Tribunal that the parties appear to have little interest in each other’s families. For example, the applicant said his children are aged 43, 40 and 30. The sponsor suggested they are 40, 36 and 34 or 32. The sponsor said she did not know about their ages and that she had no contact with the applicant’s children. Similarly, the applicant informed the Tribunal that he speaks to his sister every three to four days, implying that he has a close relationship with his sister, yet the sponsor never spoke to the sister, was never introduced to her and did not know how frequently the applicant speaks to the sister. The applicant explained to the Tribunal that he does not tell his wife who he speaks to when he speaks to his friends or his sister. It is of some concern to the Tribunal that they do not appear to want to share information about their family and friends. In the Tribunal’s view, that suggests lack of mutual commitment to the relationship.

17. The applicant informed the Tribunal that he made several trips to Korea, primarily for health reasons. He stated that the sponsor never travelled with him because of the expense and because their schedules did not allow them to do that. The sponsor informed the Tribunal that she did travel to Korea to visit her sister who was ill. The applicant made no mention of visiting the sponsor’s sister and the evidence is that during that visit no attempt was made to introduce the sponsor to the applicant’s family because it was not convenient. The Tribunal accepts that they live in different cities but there may be other means of effecting the introduction, if there was any desire to make such introductions.

18. Thus, while the Tribunal accepts there is a wide recognition of the relationship among friends and community members and at least the sponsor’s family, the Tribunal finds that such recognition is lacking on the part of the applicant’s family. The Tribunal has formed the view that the applicant had deliberately avoided introducing the sponsor to his close relatives and that there are no good reasons for his failure to do so. The Tribunal is concerned that this signifies his lack of commitment to the relationship.

19. The Tribunal acknowledges that to date, the couple have been married for about four years. The Tribunal accepts that they live together and attend social activities together. However, there are other aspects of their relationship that the Tribunal considers to be problematic. For example, the applicant referred to his and the sponsor’s health. While both had some understanding of the applicant’s own condition, the applicant appeared to lack understanding of the sponsor’s condition. Both the applicant and the sponsor referred to the sponsor having high cholesterol. The applicant said she does not take any medication. The sponsor said that she takes medication daily and although at some point she thought she would not have to take it, the doctor advised against stopping the medication. The applicant appeared to be entirely unaware of it. The Tribunal acknowledges the parties’ evidence that the sponsor has been taking medication for a long time and it is not a significant issue but in the Tribunal’s view, knowledge about one’s health issues and concern for these is part of emotional support and comfort that partners may expect in a relationship and lack of such knowledge may suggest lack of interest in each other’s affairs.

20. It is also of some concern to the Tribunal that the parties know very little about each other’s previous relationships. The applicant’s evidence to the Tribunal is that they do not discuss their past with each other. The Tribunal accepts that their preference may be with their future together, rather than the past, but the Tribunal is concerned that they do not appear to be comfortable discussing certain matters with each other.

21. On the evidence before it, the Tribunal is not satisfied the parties provide each other with comfort and emotional support or that they rely on such support from each other. The Tribunal is not convinced they view the relationship as a long term one.

22. The Tribunal acknowledges that many aspects of the relationship point to the existence of a genuine and committed relationship. In particular, the Tribunal places weight on the length of this relationship, the fact that the parties do live together and represent themselves to others as being a married relationship. The Tribunal also acknowledges a substantial amount of documentary evidence has been presented with the application and to the Tribunal, which seeks to address the various aspects of the relationship. Against these considerations, the Tribunal is not satisfied that they genuinely share their financial affairs – other than at a fairly superficial level – or that they take any interest in each other’s families. The Tribunal is not satisfied they provide each other with the emotional support that may be expected in a mutually committed relationship.

23. The Tribunal has considered all aspects of this relationship. Overall, the applicant has not satisfied the Tribunal that he and the sponsor have a mutual commitment to a shared life together to the exclusion of all others. The Tribunal is not satisfied that their relationship is genuine and continuing. The applicant has not satisfied the Tribunal that he is the spouse of the sponsor.  The Tribunal is not satisfied the applicant meets cl. 801.221(2)(c). There is no evidence that the applicant meets any of the alternative criteria in cl. 801.221. The Tribunal finds that the applicant does not meet cl. 801.221.

    Conclusion

24. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Kira Raif
    Senior Member