1513070 (Migration)

[2016] AATA 4451

1513070 (Migration) [2016] AATA 4451 (27 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Lijin Deng

CASE NUMBER:  1513070

DIBP REFERENCE(S):  CLF2012/237164

MEMBER:Helena Claringbold

DATE:27 September 2016

PLACE OF DECISION:  Sydney

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) of Schedule 2 to the Regulations; and

·cl.801.221 of Schedule 2 to the Regulations.

Statement made on 27 September 2016 at 7:14am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 29 November 2012, Mrs Lijin Deng applied for a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).  The application was made on the basis of her spousal relationship with Mr Yujian Zhou, her sponsor.

2. On 16 September 2015, a delegate of the Minister for Immigration refused to grant the visa. The delegate was not satisfied that Mrs Deng was the spouse of Mr Zhou as defined in s.5F of the Act.  As a result Ms Dent did not meet cl.801.221(2) and cl.801.221.

3. Mrs Deng requested review of the delegate’s decision and provided the Tribunal with a copy of the delegate’s decision record.  She appeared before the Tribunal on 20 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yujian Zhou. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant was represented in relation to the review by her registered migration agent.

4. At the time of application, 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.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence in the Department’s files CLF2012/237164, folios numbered 1-154 and the Tribunal file 1513070, folios numbered     1-128 and the evidence at the Tribunal hearing.

7. The issue in the present case is whether Mrs Deng is the spouse of Mr Zhou as defined in s.5F of the Act.

   BACKGROUND

8. Mrs Deng was born on 1 August 1993 in Guangdong.  She is a Chinese national. Her father Jianhua Deng, and mother Aifang Tan live in China.  At the time of application her brother, LiHao Deng was living in Australia on a Student visa.

9. Mr Zhou was born on 21 April 1993 in Guangdong.  He is a Chinese national.  He entered Australia on 2 July 2011 and is an Australian permanent resident. His mother is deceased.  His father, Guangxian Zhou and sister, Yanxia Zhou live in Australia.

10. On 1 November 2011, the parties began communicating via webchat. On 20 August 2012, the parties committed to a long term relationship.  On 9 October 2012, the parties married.

    Is the applicant the spouse or de-facto of an eligible citizen?

11. The Tribunal is satisfied that Mr Zhou, at the time of visa application and at the time of decision, is an Australian permanent resident 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.

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. Mrs Deng provided evidence of her marriage to Mr Zhou. 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?

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 sponsors household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

14. On these aspects the Tribunal has considered the evidence before it and is satisfied the facts of this case are as follows:  The parties share a joint account. The sponsor’s salary is deposited into this account. The statements show various deposits and transfers and other general transactions.  In addition, the parties have a saving account in the applicant’s name which is accessed by the sponsor. There is another account with a small amount of money in it.  Additionally, on 12 August 2016, the parties deposited $55,990 against the purchase of a villa for total sale price of $559,990. The parties told the Tribunal that they saved half of the deposit and the other half was provided to the parties by the sponsor’s father. The loan term is thirty years with repayment of approximately $2,000 per month.  The sponsor works six days a week as a chef and returns home from work at approximately 9.30pm.  The applicant is employed on a part-time basis.  Socially their free time together is limited by the sponsor’s work commitments.  However they attend family gatherings and celebrations and enjoy eating out together and going for a drive. Their families recognise the parties as being in a spousal relationship.  In 2016 the parties travelled to China and lived with the applicant’s family.  They visited the applicant’s family and visited local attractions.  The parties have lived together since their marriage in October 2012.  The parties told the Tribunal that they were looking forward to moving into their property and working hard for each other.  They stated that once settled in the property they would like to have a child.

15. In view of all the above, the Tribunal is satisfied that there is recognition of the parties’ relationship. The Tribunal is satisfied by the evidence that the parties are in a genuine and continuing spousal relationship.

    FINDINGS

16. The Tribunal has carefully considered a number of aspects of the sponsor’s oral evidence which concerned the Tribunal because it was inconsistent with the applicant’s oral evidence, or caused the Tribunal to question (more broadly) the reliability of the applicant’s oral evidence. Specifically, on one occasion the sponsor provided different information about the parties’ bank accounts.  This contrasted with the applicant’s information which was succinct, spontaneous and therefore reliable. On another occasion the sponsor was asked why the parties had travelled to China without each other.  He stated that it was due to employment commitments. The Tribunal put this question to the sponsor in various forms, but the sponsor seemed unable to provide a cogent response or indeed any consistent response, rather he changed responses and later claimed that he had asked the sponsor to travel with him but she had not wanted to do so.  On the other hand, the applicant responded that it was mainly because of financial difficulties. Although the Tribunal has concerns about these inconsistencies, it has weighted them against the other evidence of the case and has determined that the inconsistencies are not fatal to the application under review.

17. Overall, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.  The applicant therefore meets the requirements of s.5F of the Act.  Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

18. 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

19. 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) of Schedule 2 to the Regulations; and

    ·cl.801.221 of Schedule 2 to the Regulations.

    Helena Claringbold
    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).