1604108 (Migration)

1604108 (Migration) [2016] AATA 4882 (14 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Lijuan Chen
Mr Yixi Lu
Mr Yihan Lu
CASE NUMBER:  1604108
DIBP REFERENCE(S):  BCC2015/2653046
MEMBER:Rieteke Chenoweth
DATE:14 June 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.
Statement made on 14 June 2016 at 2:44pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether a genuine spousal relationship exists – Limited evidence of joint finances – Limited evidence of joint household – Limited evidence of social aspects of relationship – Limited evidence of commitment
LEGISLATION
Migration Act 1958, ss 5F, 65, 362B(b)
Migration Regulations 1994, r 1.15A(3), Schedule 2, cl 820.211(2)(a), 820.221, Schedule 3, Criterion 3001

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 4 March 2016 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (the applicant) applied for the visa on 9 September 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant and the sponsor were in a spouse relationship. The delegate was not satisfied that the applicant met the Schedule 3 criteria or that there were compelling reasons for not applying those criteria.
The Tribunal invited the applicant to appear before it on 14 June 2016 to give evidence and present arguments in relation to the issues arising in her case. The Tribunal informed the applicant that if she failed to attend the scheduled hearing the Tribunal could make a decision without taking any further action to allow or enable him to appear before it.
The applicant failed to attend the scheduled hearing for 14 June 2016. The Tribunal is satisfied that the review applicant was properly served with the notice of hearing. The Tribunal records show that the letter of invitation to the hearing was properly delivered
On 14 June 2016 the applicant’s representative contacted the Tribunal and advised that the applicant notified him she would not be attending the hearing and asked for the decision to be based on the information presently before the Tribunal..
As the applicant notified the Tribunal that she would not be attending the hearing and asked that the decision be made on the information presently before the Tribunal the decision on the review application was made without taking any further action (s.362B(b)).
The Tribunal has made its decision on the papers provided to it by the applicant and the documents on the Department’s file.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant and the sponsor are in a spouse relationship. The Tribunal also considered whether the applicant met the Schedule 3 criteria and if so whether there are compelling reasons for not applying those criteria.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
‘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?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties were married on 6 August 2015. There is a copy of the Marriage Certificate on the Department file. 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?
Financial aspects of the relationship
Ms Lijuan Chen, the applicant, submitted a copy of a joint bank statement dated 25 September 2015 to the Department. The letter from the bank states the account was opened on 23 September 2015. There is a further letter of the same date addressed to the sponsor which instructs his payroll officer to credit his salary to the joint account. There was no further evidence submitted to the Tribunal about transactions in the account or how the account was used. The Tribunal considers the information provided about the bank account gives little indication of a pooling of financial resources.
Ms Chen also submitted copies of a residential tenancy agreement and statements from the Real Estate Agent which shows the premises were rented in joint names and rent was paid on a regular basis. There is no indication as to who paid the amounts or which bank account the rental money was taken from. Had Ms Chen attended the hearing, the Tribunal would have asked her who paid the rent and from which account it was paid as well as who was responsible for the financial committment.
There was no further evidence submitted about joint assets or liabilities or the pooling of financial resources.
Nature of the household
Ms Chen submitted a number of rent receipts for the period 7 August 2015 and 14 November 2015 and a joint residential tenancy agreement from 15 August 2015. There was no further evidence submitted to show that both Ms Chen and the sponsor lived at the address at that time. She submitted a tax invoice statement for $189 dated 17 August 2015 which has no listed recipient. The Tribunal places little weight on this evidence.
In her relationship statement Ms Chen states that she lives with the sponsor together with her two children from her previous relationship. There was no further evidence submitted concerning how couple shared the responsibility for the care and support of the children or their living arrangements. There was no evidence submitted to indicate that the children are reliant on the sponsor for support. There was no evidence submitted concerning how household tasks are shared in the household.
Social aspects of the relationship
Ms Chen submitted a number of photos of herself and the sponsor together with her children and two photos of themselves with friends as well as one depicting her and the sponsor at their wedding. She further submitted two Forms 888 each from friends who say they have contact with her on a monthly basis and were both at the wedding.
The Tribunal accepts that Ms Chen and the sponsor represent themselves to these people as being married to each other. However, there is no evidence before the Tribunal that the couple plan and undertake joint social activities or are members of a wider social group.
Ms Chen submitted to the Department a letter with a rewards point voucher from Dooleys Lidcombe Catholic Club addressed to the sponsor at the residential address provided. There was no further evidence provided that the couple attended the club together or socialised there as a couple.
Nature of persons commitment to each other
In her relationship statement submitted to the Department and in the application form for the visa Ms Chen stated that she met the sponsor in 2012 and they committed to the relationship in October 2014. She stated that the sponsor attended the massage parlour where she worked and they formed a relationship there. They married on 6 August 2015.
The Tribunal notes there is no documentary evidence submitted such as a will or superannuation accounts that show the couple have combined their affairs and are committed to a long term relationship. There was limited evidence in the relationship statement as to how the relationship developed.
Ms Chen submitted to the Department a letter with a rewards point voucher from Dooleys Lidcombe Catholic Club addressed to the sponsor at the residential address provided. There was no further evidence provided that the couple attended the club together or socialised there as a couple.
In her relationship statement Ms Chen claimed to be in a relationship with the sponsor since October 2014. However there is evidence from Departmental records that she applied for a Bridging visa E on departure grounds with Mr Dongdong Lu as her partner and her 2 children. In her relationship statement to the Department Ms Chen stated that on 28 May 2012 she found out she was accidentally pregnant to her ex-boyfriend and had to give up work. She stated that it caused conflict between her and the ex-boyfriend and that she separated from him in late 2014. Had Ms Chen attended the hearing the Tribunal would have asked her to explain why she listed Mr Lu as her partner in the Bridging visa E application on 5 June 2015, some 6 months or more after the claimed date of separation. In the absence of any further evidence, the Tribunal is not satisfied that the applicant and the sponsor were in a genuine spouse relationship at this time.
The Tribunal considered the documentary evidence submitted with the application for the visa. It considers there is limited evidence that the couple are in a spouse relationship. There is also inconsistent evidence that at the time Ms Chen claims to have been in a committed relationship with the sponsor she was also representing herself be the partner of Mr Dongdong Lu.
The Tribunal is not satisfied that Ms Chen and the sponsor have a mutual commitment to a shared life of husband and wife to the exclusion of all others and that the relationship between them is genuine and continuing. It is not satisfied that they live together or do not live separately and apart on a permanent basis.
Given these findings the Tribunal is not satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship.
Therefore the applicant does not meet cl.820.211(2)(a) and cl.820.221.
There is no evidence before the Tribunal that the applicant meets the alternative criteria in cl.820.211. There is no evidence that the sponsor has died, there is a child of the relationship or that there was family violence perpetrated by the sponsor against the applicant.
In the decision record the delegate considered whether Ms Chen met the Schedule 3 criteria. There is evidence on the Department file that Ms Chen last held a substantive visa on 15 March 2011 and lodged the application for the partner visa on 9 September 2015. The delegate considered that accordingly Ms Chen did not meet criterion 3001.The delegate was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria. As the Tribunal is not satisfied that Ms Chen and the sponsor were in a spouse relationship the Tribunal has not made findings on the Schedule 3 criteria.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
As Ms Chen does not satisfy the requirements for the visa the application of the second and third named visa applicants also fails.
DECISION
The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.
Rieteke Chenoweth
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).
Schedule 3
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(c)if the applicant:
(i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii)      entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)     the last day when the applicant held a substantive or criminal justice visa; or
(iv)    the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:
(i)       the day when that last substantive visa ceased to be in effect; and
(ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.
3003
If:
(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and
(b)on 31 August 1994, the applicant was either:
(i)       an illegal entrant; or
(ii)      the holder of an entry permit that was not valid beyond 31 August 1994;
the Minister is satisfied that:
(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with the conditions that apply or applied to:
(i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(ii)      any subsequent bridging visa; and
(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3004
If the applicant:
(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with:
(i)       the conditions that apply or applied to:
(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B)any subsequent bridging visa; or
(ii)      the conditions that apply or applied to:
(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B)any subsequent bridging visa; and
(f)either:
(i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

[2016] AATA 4882

14 June 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice