1826944 (Migration)

1826944 (Migration) [2020] AATA 6189 (29 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1826944
MEMBER:Joseph Francis
DATE:29 October 2010
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 29 October 2020 at 10:12am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine relationship – information provided in confidence – applicant’s employment as a sex worker – motivation for entering into the relationship – financial aspects – nature of the household –social aspects – nature of the commitment – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65, 375A, 376
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A; Schedule 2, cl 820.211
CASES
He v MIBP [2017] FCAFC 206
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 28 April 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). 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(2)(a) because the applicant did not provide sufficient evidence to satisfy the delegate of the genuine nature of the relationship with her sponsor with regards to consideration of regulations 1.15A and 1.09A.
The applicants appeared before the Tribunal on two occasions, 12 March 2020 and again on 10 August 2020 and to give evidence and present arguments.
The scheduling of the second in-person hearing was delayed due to the COVID 19 pandemic. As the Tribunal held concerns over the integrity of the visa applicant, the Tribunal determined to postpone the continuation of the hearing until such time as the visa applicant could again appear in person.
The Tribunal also received oral evidence from the visa sponsor, [Mr A], who appeared before the Tribunal on 10 August 2020. No other witnesses were presented to the Tribunal. The Tribunal hearings were conducted with the assistance of an interpreter in the Cantonese and English languages.
The review applicant was represented in relation to the review by their registered migration agent, [Ms B]. The representative attended the Tribunal hearings.
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 visa applicant and sponsor were in a genuine married relationship as required by cl.820.21(2)(b).
In addition to the oral evidence, the following evidence was provided to the Tribunal that was not available to the delegate includes:
·[A] fitness membership for visa applicant and sponsor dated 29 December 2016
·Loan approval notice from [Bank 1] for sponsor dated 28 July 2017
·[Bank 1] bank statements for account held in joint names from 27 September 2016 until March 2020
·Various [electricity] accounts for visa applicant issued in from 2018 to 2020
·Carers medical certificate certifying sponsor to care for visa applicant dated 29 July 2016
·House sharing agreement signed by visa applicant and sponsor dated 23 April 2017
·Pay advice for sponsor dated 9 July 2017
·[A] phone bill for sponsor date 9 May 2019
·Income tax return for sponsor for 2016/2017 financial year
·Income tax return for sponsor for 2017/2018 financial year
·Income tax return for sponsor for 2018/2019 financial year
·Income tax return for visa applicant for 2018/2019 financial year
·Photographs of marriage ceremony held [in] October 2018
·Certificate of insurance issued by [a insurance company] for sponsor dated 20 June 2017
·[Insurance] membership card and certificate for visa applicant and sponsor indicating membership since 23 March 2019
·[A] roadside assistance notice for sponsor issued 6 December 2016
·World Vision sponsorship letter addressed to visa applicant dated [in] January 2019
·Western Australian Marriage Certificate for sponsor and visa applicant dated [in] October 2018
·[Bank 2] transaction dispute notice addressed to sponsor dated 14 October 2016
·[Proposed sport facility] notice dated 3 December 2018
·Receipt from Louis Vuitton issued to visa applicant dated [in] December 2018
·Photographs of sponsor and visa applicant holding [specified pets]
·Photographs of sponsor and visa applicant in [Country 1]
·Photographs of sponsor and visa applicant in various restaurants
·Invitation to sponsor and visa applicant to attend infant’s party
·[Water utility] account for sponsor dated 13 June 2019
·Contract for sale of vehicle from [a car dealership] to visa applicant dated 3 July 2019
·[Mobile carrier] telephone contract for sponsor (undated)
·Receipt for office chair issued to visa applicant (undated)
·Receipt from Apple for [product], issued to sponsor and indicated receiver as visa applicant, dated [in] February 2019
·Receipt from Tiffany&Co issued to sponsor, dated [in] October 2019
·Receipt from [a retail store] for [product], issued to sponsor, dated 2 August 2019
·Order confirmation from [an online website] for Burberry bag, issued to sponsor
·Receipt from Samsung for mobile phone, dated [in] May 2019, issued to sponsor
·Receipt from Apple for mobile phone, dated [in] June 2019, issued to sponsor
·Movie tickets dated 21 January (year unknown)
·Photographs in various locations
·Photograph of visa applicant and sponsor with visa applicant’s mother, dated March 2018
·[A] Health insurance policy for visa applicant and sponsor dated 23 January 2020
·[Water utility] account for sponsor dated 29 January 2020
·[Water utility] account for sponsor dated 27 September 2019
·[A] car insurance policy issued to visa applicant and sponsor dated 29 October 2019
·[Water utility] account for sponsor issued 25 July 2019
·[Water utility] account for sponsor issued 27 September 2019
·[Water utility] account for sponsor issued 27 November 2019
·[Water utility] account for sponsor issued 28 May 2019
·[Water utility] account for sponsor issued 29 January 2019
·Multiple [Internet accounts] from [internet service provider] for sponsor issued during 2019 and 2020
·[Bank 1] property loan statements in name of sponsor for period Feb 2019 to August 2019
·Email from Perth Marriage Office to visa applicant dated [in] April 2020
·Virgin Australia flight tickets for both visa applicant and sponsor for [date] to [date] June 2017
·Certificates and photographs of products in support of claim visa applicant runs [a specified] business
·Employment appointment letter as [Occupation 1] for sponsor dated 5 March 2020
·[University 1] Graduate Diploma Certificate for sponsor dated 18 January 2017
·[University 2] Degree certificate for sponsor dated 9 April 2014
·Joint statement by visa applicant and sponsor addressing travel history, financial matters and wedding ceremony, unsigned and undated
·Personal statement by sponsor, unsigned and undated
The departmental file included a section 375A and a section 376 certificate which the Tribunal is satisfied are valid.
The section 375A certificate had been issued in relation to information provided to the Department and the related document contained information relating to people other than the visa applicant, that was provide either in confidence or as part of an ongoing investigation.
The section 376 certificate had been issued in relation to information provided to the Department was given in confidence and section 375A does not apply.
The applicant was provided copies of the certificates by the Tribunal.
The applicant was invited to make submissions as to the validity of the certificates. No submission regarding the validity was made either during or after the hearing.
The information alleged the visa applicant was working in the sex industry for a business known as “[Business 1]” at various addresses, the residential address the applicant used when working in that industry, and that the motivation for the relationship may have been for the purpose of maintaining a visa to stay in Australia.
The Tribunal exercised its discretion to disclose the substance of the allegation to the visa applicant as it relates directly to questions regarding the genuine nature of the relationship.
The Tribunal informed the applicant at the hearing held on 12 March 2020. The Tribunal gave the particulars of the information at the hearing to the visa applicant under section 359AA. The applicant was advised that there was information on the departmental file indicating she was working as a prostitute, including the location and name of the business she was working, and questioned the motivation for her entering into the relationship.
The Tribunal informed the applicant that the concerns the Tribunal held were not to do with the actual nature of the work, but was concerned for the motivation for the applicant entering into the relationship; and whether the sponsor was aware of the nature of her work or how much income it generated her.
The applicant was given the opportunity to seek advice from her representative and the hearing was adjourned for a period to allow her to seek such advice.
On resumption of the hearing, the visa applicant denied ever working as a sex worker and stated she had no idea of the details of the information, and that her employment was for the purpose of doing beauty work, in particular, ‘eyelash extensions’.
On further questions as to the business services provided by her employer, the visa applicant then stated that she did in fact work there and provide sexual services. The Tribunal asked if her husband was aware, to which she stated he was not.
The Tribunal, with consideration of the sensitive nature of the information, provided the applicant the opportunity to inform her husband of the evidence she had provided prior to the Tribunal putting such information to him. The hearing was again adjourned for that purpose.
On resumption of the hearing, the applicant informed the Tribunal that her husband was not overly concerned by the information relating to her employment as a sex worker.
The Tribunal adjourned the hearing after it became apparent the visa applicant was distressed and not in a state to continue to answer questions.
The Tribunal, with consideration to the vastly different replies given as sworn evidence from the visa applicant during the first hearing held significant concerns with regard to the credibility of the visa applicant as a witness.
Tribunal had scheduled a second hearing for 14 April 2020. However, due to COVID-19 pandemic restrictions, this hearing was postponed until such a time as another in-person hearing could be scheduled. The hearing was eventually continued on 10 August 2020.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211(2)(c)(B) 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 a married couple 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 about 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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The application for the visa was lodged on 28 April 2017. As the parties were not married the delegate assessed the application under section 5CB for de facto couples. At the time of the delegate’s decision on 7 September 2018, the parties claimed to remain in a de facto relationship. The Tribunal was provided a marriage certificate for marriage held on 13 October 2018 in Western Australia and the Tribunal accepts the validity of that marriage. The Tribunal considered the relationship requirements under section 5CB for time of application criteria, and as well as section 5F(2)(a), married criteria for time of decision.
Are the other requirements for a spouse relationship met?
The Tribunal considered all of the aspects of each matter in r.1.15A(3)(a), (b), (c) and (d), and other circumstances of the relationship under r.1.15A(2), with the following findings
Financial aspects of the relationship
The Tribunal considered the financial aspects of the relationship - including joint ownership of assets; joint liabilities; extent of pooling of financial resources, any legal obligations or joint liabilities each has to the other, and the general sharing of household expenses.
The parties provided evidence of a [Bank 1] bank account held in joint names. The account is used for sharing of some expenses, as the visa applicant and sponsor earn their own incomes and the sponsor appears to have been paid into different accounts prior to transferring money into the joint account. The parties have some understanding of each other’s financial situation and the Australian taxation returns indicate they have declared each other as a relevant spouse for taxation purposes since 2017. The Tribunal places weight on this aspect of the financial situation.
The parties own no major assets together, such as real estate, and have no joint liabilities. The sponsor holds a mortgage for a property in Perth solely in his name. The Tribunal notes the difficulties that present to the visa applicant in being able to borrow money individually or jointly for such property, due to her visa status, and therefore considers it unrealistic to expect such joint liabilities. The Tribunal places little weight on the absence of such evidence.
The Tribunal received receipts for the purchase of goods including items such as mobile phones, a car, fashion accessories and a chair. As many of these receipts were provided without explanation as to whether they were individual purchases or gifts to each other, the Tribunal places little weight on these documents as support of the financial aspects of the relationship.
The Tribunal received accounts for utility bills issued in individual names. It is noted that they were issued to the same corresponding addresses the parties claimed to live at prior to their current address. The Tribunal considers this more as support for the claim the parties reside at the same address rather than share or pool financial resources. The Tribunal places little weight on these documents as evidence in support of the financial aspects of the relationship.
The Tribunal received copies of accounts for health and other insurance held in joint names. The Tribunal places some weight on these documents as evidence of sharing financial resources.
It is reasonable to expect the visa applicant to have some knowledge of the financial situation of her husband and vice versa. It became clear during oral evidence that the visa applicant was working for a period in a job her husband was unaware of, and similarly earning an income, claimed to be some $500 AUD per day, that he was also unaware of.
Likewise, it is reasonable to expect the visa applicant to have clear knowledge of the ownership of the property in which she resides with her husband.
At the time of this decision, It remains unclear to the Tribunal what financial arrangements are in place between the sponsor and his parents for the purchase of the property in which the parties live, other than the sponsors parents, resident in [Country 2], provided funding for the purchase. At the time of this decision I have received no evidence as to what name the property was purchased in, or whether there is a financial obligation owed by the sponsor to his parents for the property, or if any rent is paid or received by either party.
With consideration to all of the financial aspects of the relationship, the Tribunal is not satisfied that the parties have demonstrated sufficient knowledge of each other’s employment and financial situation to indicate they were in a genuine de facto relationship at the time of application, or a genuine marriage at the time of this decision.
Nature of the household
The Tribunal considered the evidence of the nature of the household, including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
The parties do not have any children. The Tribunal heard oral evidence that at previous and current addresses the parties have also shared their house with another friend.
With consideration of the accounts addressed to the parties both separately and combined, the Tribunal accepts the evidence indicating the parties have resided at the same location.
The visa applicant has two [pets], which have resided with the parties up until April 2020 when they moved into a house owned or financed by the sponsors father. It was submitted at that time the [pets] were placed with either a friend or a [temporary accommodation], as the sponsors parents, who live in [Country 1], would not approve of the [pets] being in the house; and is unaware the visa applicant resides in the same house as their son. The sponsor, in providing this evidence, also clarified that his parents remain unaware he is even married to the visa applicant.
The Tribunal accepts that the parties most likely do reside together and share to a degree housework. However, given as it appears that the sponsor won’t allow the visa applicant to keep her pets in the house in order to keep the marriage secret from his parents, the Tribunal finds the nature of the household is more representative of housemates sharing a house than that of a genuine married relationship.
Social aspects of the relationship
The Tribunal considered social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

It is clear from the evidence of the sponsor that his parents remain completely unaware that he is in the relationship, is now married, and that the parties reside together. The sponsor claimed this is because they did not approve of the relationship.
The parties claimed to have met in August 2015 and commenced their relationship in January 2016. They lodged the subclass 820 de facto partner visa application on 28 April 2017. The parties were married on 7 September 2018.
Photographs of the wedding ceremony submitted indicate only three other guests attended the ceremony other than the parties themselves.
The Tribunal accepts the parties have undertaken some joint travel, including a trip to [Country 1] and Sydney. The Tribunal also received some photographs showing the visa applicant and sponsor in various settings with some friends.
The Tribunal notes that no third-party witnesses were offered to provide evidence in relation to the social aspects of the relationship. Whilst it is submitted that the parties are introverted persons and remain private, it is reasonable to expect that a third-party witness might be submitted, considering the included photos of claimed friends in their company.
With little evidence from other parties as to how they represent their relationship to others, and with consideration that the sponsors family remain unaware of the relationship, marriage and co-habitation of their son with the visa applicant, the Tribunal places little weight on the social aspects of the relationship.
Nature of the persons’ commitment to each other
The Tribunal considered the nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
The Tribunal originally received sworn oral evidence from the visa applicant that at the time the parties met, she was not working in the sex industry, but had considered doing so and informed her sponsor that she was considering such work. She claimed in evidence that her partner, in order to dissuade her to work in that area, promised to take care of her. In a submission from their registered migration agent dated 3 August 2020, it is claimed the visa applicant was in fact working in that employment up until September 2019, and in fact the sponsor remained unaware of what his now wife was doing for employment until the Tribunal hearing of 12 March 2020.
The Tribunal also heard evidence that the sponsor returned to Hong Kong on a number of occasions without the visa applicant, for various reasons. It is noted that individual travel in itself does not indicate a relationship is not genuine. Many genuine couples travel and holiday individually.
Of concern to the Tribunal, however, is the evidence with regard to the return travel to Hong Kong of the sponsor in December 2018 in order to attend a friend’s wedding. The Tribunal heard evidence that at this time the sponsor engaged in a sexual relationship with another friend in Hong Kong, and that this person then came to Australia in early 2019 in order to visit the sponsor. The Tribunal further heard that, once the visa applicant had become aware of the affair, she returned to work in the sex industry as a form of revenge against her husband.
The Tribunal notes that neither engaging in a short affair, nor working as a sex worker, in themselves, disqualifies the ability for a relationship to be considered genuine or exclusive to all others.
The Tribunal, having heard multiple versions of greatly different evidence from the visa applicant about when she engaged in what work and when her sponsor was aware of her employment, finds the visa applicant to significantly lack credibility as a witness. I therefore place very little weight on her evidence of the relationship.
Whilst the parties submitted that they provide some companionship and emotional support to each other, I am not satisfied they see the relationship as long-term.
Other circumstances of the relationship
The Tribunal considered any other circumstances of the relationship, including the oral and written submissions by the visa sponsor.
The Tribunal is notes that, given the nature of the sponsor’s employment and the position of trust expected from such position, the sponsor has entered into the relationship in good faith. As noted above, the Tribunal holds serious credibility concerns about the applicant’s evidence of the relationship. Having regard to the evidence and in light of those credibility concerns, the Tribunal does not accept the commitment to the relationship was mutual.
The Tribunal remains unsatisfied that sufficient evidence was presented to establish the genuine nature of the de facto relationship at the time of the visa application.
Further, and in any event, given consideration as the evidence as a whole, the passage of time and including the subsequent marriage of the parties, the Tribunal is unsatisfied the parties remained in genuine a de facto or married relationship at the time of this decision.
On the basis of the above the Tribunal is not satisfied that the requirements of s. 5CB are met at the time of the visa application or s.5CB or 5F are met at the time of this decision.
Therefore, the applicant does not meet cl.820.211(2)(a) or cl.820.221 .
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Joseph Francis
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).

[2020] AATA 6189

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction