2110681 (Migration) - [2023] AATA 412

2110681 (Migration) [2023] AATA 412 (13 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Juan Wang
[Applicant 2]
[Applicant 3]
CASE NUMBER:  2110681
HOME AFFAIRS REFERENCE(S):          BCC2018/2762346
MEMBERS:Deputy President J.L Redfern PSM (Presiding)
Senior Member Michael Ison
DATE:13 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 13 February 2023 at 6:09pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – whether relationship was genuine and continuing – adverse information – allegation of contrived relationship – Department investigation and confidential allegation about contrived relationship – Chinese nationals linked to brothel – allegations of contrived relationship syndicate – alleged migration agents and other persons facilitating contrived relationships for the purposes of a migration outcome – no significant joint assets or liabilities – gaps about financial information to support pooling of financial assets – limited social activities together – credibility of claims that could not be tested at hearing – decision under review affirmed
PROCEDURAL – Invitation to hearing – failing to respond – whether inferences could be drawn – declined to appear before Tribunal
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359A, 359(2), 360, 376
Migration Regulations 1994 (Cth), rr 1.15A, Schedule 2 – cls 820.211(1), 820.211(2), 820.211(2)(d), 820.221(1)
CASES
He v Minister for Immigration and Border Protection [2017] FCAFC 206
Jones v Dunkel (1959) 101 CLR 298
Re Rodgers and Secretary, Department of Social Security (1991) 24 ALD 720
SZKUI v MIAC [2007] FMCA 1387
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 on 28 July 2021 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant, Ms Juan Wang, applied for the visa on 24 July 2018 on the basis of her relationship with her sponsor, Mr Trent Anthony Rocca. 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 (Cth) (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 to satisfy only the secondary criteria. The second and third named applicants are Ms Wang’s children from a previous relationship and are members of her family unit.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) because the delegate found Ms Wang was not in a genuine and ongoing relationship with her sponsor, Mr Rocca.
Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 412
Decision Date: 13 February 2023

CaseChat Overview and Summary

This matter concerned an appeal by Ms. Wang against a decision of the Department of Home Affairs to refuse her Partner (Temporary) (Class UK) visa, subclass 820 (Spouse). The central dispute revolved around whether Ms. Wang's relationship with her sponsor, Mr. Rocca, was genuine and continuing, with allegations of a contrived relationship syndicate facilitated by migration agents and other individuals. The case was heard by Deputy J.l Redfern Psm.

The court was required to determine whether the Tribunal had properly considered the prescribed matters under regulation 1.15A of the Migration Regulations 1994, which govern the assessment of partner visa applications. Specifically, the court needed to assess if the Tribunal made findings on each of the principal and specific matters relevant to the genuineness and continuation of Ms. Wang's relationship with Mr. Rocca, including aspects such as financial pooling, the nature of their household, social aspects of their relationship, and the couple's commitment to each other. A key issue was whether the Tribunal erred in drawing adverse inferences from Ms. Wang's failure to respond to a request for information and her subsequent failure to appear before the Tribunal.

The court noted that regulation 1.15A is prescriptive, requiring the Tribunal to give genuine and realistic consideration to each prescribed matter and to make findings on each, even if there is insufficient material to form a conclusion. The court found that Ms. Wang had provided a significant amount of documentation to support her claim, including statements from herself and Mr. Rocca, statutory declarations from family, financial documents, and evidence of shared household expenses. However, the Department had raised concerns about unexplained financial discrepancies, the lack of significant joint assets or liabilities, and limited evidence of shared household expenses. The Tribunal had invited Ms. Wang to appear to give evidence and present arguments regarding these issues, but she failed to respond to the invitation or provide further information by the due date. Consequently, the Tribunal proceeded to determine the review based on the material before it, drawing adverse inferences from Ms. Wang's non-compliance. The court affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

According to the Full Court in He v MIBP, reg 1.15A is prescriptive which means the Tribunal must give ‘proper, genuine and realistic consideration’ to each of the prescribed matters, which comprise of four principal matters and, thereafter, a series of specific matters relevant to the principal matters. The Full Court found that the Tribunal is required to make findings on each of the prescribed matters, even if the Tribunal’s answer may be that there is no material, or insufficient material, to form a conclusion on a prescribed matter. This not only includes the specific matters numbered with Roman numerals but requires findings in respect of the principal matters under the broad headings.[3] This is the approach we have taken to the consideration of the relevant criteria for the visa.BACKGROUND[3] He v Minister for Immigration and Border Protection at [73] to [77].Outline of evidence provided to the Department Ms Wang lodged her application for a partner visa on 24 July 2018. She was born in China in 1990. Her children, born in 2009 and 2013 in Australia, were included in the application as members of her family unit. Her sponsor was identified as Mr Rocca, who is an Australian citizen. He was born in 1995. Ms Wang and Mr Rocca are said to have been married on 5 June 2018, having first met on 12 August 2017. Their marriage celebrant was Ms Lifang Huang. The application was lodged by a registered migration agent, Ms Della Lee from Australia Visa Link. In the application for the partner visa, Ms Wang addressed certain aspects of her relationship with Mr Rocca as follows:·In relation to the financial aspects of the relationship, Ms Wang stated that she had worked as a full-time cook until March 2018, after which time she was unemployed. Mr Rocca worked as a tiler for his parents and then started working at Bunnings around March 2018. He had stable income and Ms Wang had savings from her previous employment. They opened a joint bank account to share their finances together and Ms Wang would transfer her salary from her personal bank account to the joint account while Mr Rocca would deposit cash into the joint account. According to the application, Ms Wang and Mr Rocca paid for their rent, household bills and living costs from this joint account.·In relation to the nature of the household, Ms Wang stated that she and Mr Rocca, together with her daughters, had been living together in Reservoir, Victoria, since 3 March 2018. The house was rented from one of her relatives. She was responsible for most of the household work and Mr Rocca would help her on the weekend with cleaning and grocery shopping. When Mr Rocca had to work in the mornings, they would send the children to school together and pick them up after classes. During the holidays and weekends, they would take the children to Melbourne Zoo or the Melbourne Aquarium. Ms Wang also stated that she wanted to start her own fish and chip shop business and that Mr Rocca would assist her to manage the business. Ms Wang further stated their plan was that after saving enough money they would invest in property and then consider having a baby together.·On the social aspects of their relationship, Ms Wang stated that Mr Rocca took her daughters out for fun, he introduced her to his family and friends and on 12 July 2018 they celebrated Mr Rocca’s birthday with his family. She introduced Mr Rocca to her relatives and her family who lived in Australia, and they spent time together, including at the Dragon Boat and Easter festivals. According to the application, Mr Rocca loves China and they were planning their first trip to China in early 2019 where Ms Wang would take Mr Rocca to her hometown to meet her parents.·Ms Wang stated that she and Mr Rocca loved and supported each other from the beginning when they fell in love. Ms Wang further stated that they have a good understanding of each other’s personal characteristics, Mr Rocca and his family did not mind about her past de facto relationship and they loved her children. She stated that their love was ‘unconditional and steadfast’ and she believed Mr Rocca was the right person for her and she wanted to spend the rest of her life with him.·When asked to give details about the development of the relationship, Ms Wang stated that she first met Mr Rocca at a party held by her friend on 12 August 2017. Ms Wang was impressed by his handsome appearance and bright smile, that he loved Asian culture and they hit it off from the beginning. After the party they exchanged telephone numbers and kept in touch for the next few months. Ms Wang stated that they were attracted to each other and on 18 November 2017 they confirmed their relationship as boyfriend and girlfriend. Ms Wang invited Mr Rocca to celebrate her older daughter’s birthday and after knowing Mr Rocca for six months she felt he was an ambitious and responsible young man and she wanted to spend her life with him. Ms Wang stated they then started planning a joint future and on 14 February 2018 Mr Rocca proposed to Ms Wang. She said yes without hesitation. They started sharing a house that they rented from one of her relatives from 3 March 2018 and started to share their expenses from this date. They officially registered their marriage in Australia on 5 June 2018.

Evidence

Evidence Before The Court

Ms Wang did not respond to the Tribunal’s letter by 22 December 2022 or at all, nor did we receive a request for extension of time to respond. The above information was requested pursuant to ss 359A and 359(2) of the Act. Ms Wang’s failure to respond or comment by the due date resulted in her losing her entitlement to appear before us to give evidence and present arguments. We have therefore proceeded to consider Ms Wang’s application for review and determine the issues in dispute based on the material before us. EVIDENCE SUBMITTED TO THE TRIBUNAL As can be seen from the above, Ms Wang provided a significant number of documents to support her claim. These documents were provided at the time of the application and later, in response to queries raised by the Department or to notify the Department of her change circumstances or address. She and Mr Trent Rocca provided written statements in support of the application for the visa. The substance of these statements is set out above. They were provided to the Department around the time of the application, with a further short statement provided by Ms Wang in March 2021. Mr Trent Rocca provided a statutory declaration in May 2021 explaining why there were different addresses notified on official documents. She also provided statutory declarations or letters from family and relatives. Prima facie, these documents support her claim to be in a genuine spousal relationship with Mr Trent Rocco from about March 2020. By the time this matter came before us, we were on notice of allegations made about a contrived relationship between Ms Wang and Mr Rocca. It was apparent that these allegations had not been raised directly with Ms Wang, other than in general terms. While the allegations were serious and raised concerns about what appeared to be a common modus operandi used to facilitate visa fraud, the allegations were untested and none of the parties alleged to be implicated in Ms Wang’s case had been questioned about the alleged scheme. There may have been explanations for the similarities. It should also be noted that Ms Wang had not provided to the Tribunal any updated evidence about her relationship with Mr Trent Rocca. This was important as a critical issue for determination in this case is whether Ms Wang and Mr Rocca are in a genuine spousal relationship at the time of the decision. Because we could not be satisfied about these matters, we invited Ms Wang to appear before us to give evidence and present arguments relating to the issues arising in relation to the decision under review under s 360 of the Act. If the Tribunal is unable decide the review in the applicant’s favour on the basis of the material before it, it must invite an applicant to appear (refer subs 360(1) and (2)(a) of the Act). On 5 December 2022 Ms Wang provided documents in support of her claim, including bank statements for the joint bank account, utility statements and rental payments for the Balwyn North property, her individual tax return for 2021–2022 and copies of receipts for various expenditures. She also provided the personal statement extracted in full earlier in these reasons. As previously noted, this statement was to the effect that she and Mr Rocca had had a fight, he had left the home and he would not be attending the hearing.

Decision

Reasons for decision

Additional information provided to the Department by Ms Wang included an English translation of a letter from Ms Wang’s father stating that Ms Wang and Mr Rocca were ‘husband and wife’ and that he had ‘witnessed their relationship from the beginning when they fell in love to now living in life with full of happiness’. Ms Wang also provided a form apparently signed by the father of her children, Mr Xin Jie Yan, dated 18 July 2018 consenting for each of the children to be granted an Australian visa. In addition, she provided the marriage certificate of the marriage between her and Mr Rocca, birth certificates for her children, copies of invoices from Box Hill North Primary School recorded as being paid from the joint bank account of Mr T Rocca and Ms Wang and a copy of her driver’s licence. She also provided updated details from time to time about her changes in address.Decision under review In the decision record dated 28 July 2021, the delegate recorded the documents provided by Ms Wang and proceeded to assess her application for the partner visa by reference to the format as set out in reg 1.15A to assess whether Mr Rocca and Ms Wang were in a married relationship. In relation to the financial aspects of the claimed married relationship, the delegate noted the documentation and information provided but also stated that there are a number of concerns and unexplained circumstances around their finances which raised concerns about whether their finances were shared. The delegate was concerned about how Ms Wang was able to purchase a business on her income, noted that the investment did not include Mr Rocca and stated that, based on the evidence provided and financial discrepancies in that evidence, it appeared that Ms Wang and Mr Rocca must have separate finances that they utilise solely for their own purposes that had been deliberately kept from the Department. On this aspect the delegate concluded:You and your sponsor claim to have been in a committed relationship for a period of more than three years. The financial evidence provided raises concerns that you have not combined your financial affairs as claimed. I am not satisfied that you and your sponsor have joint ownership of assets and joint liabilities, that you pool financial resources, that you have legal obligations owed to each other, or that you share day-to-day household expenses. On the nature of the household, the delegate accepted Mr Rocca’s explanation about the different addresses but noted that in the interview where the Department officer put to both Ms Wang and Mr Rocca that there was information indicating that their relationship may be contrived and was not genuine, they showed no further concern or surprise at the allegation and simply responded that the information was not true. Even though the delegate accepted that there was evidence of common addresses in certain documentation, the delegate was not satisfied that this provided sufficient evidence that Ms Wang and Mr Rocca actually ran a household together. The delegate concluded that she was not entirely satisfied that they were residing together.

Ratio Decidendi

Legal Principle Established

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