Bu (Migration)

[2020] AATA 5951

Bu (Migration) [2020] AATA 5951 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rongmei Bu

VISA APPLICANT:  Mr Jianming Zhou

CASE NUMBER:  1834010

DIBP REFERENCE(S):  BCC2017/2190899

MEMBER:Joseph Francis

DATE:03 February 2020

PLACE OF DECISION:  Perth

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

Statement made on 03 February 2021 at 9:44am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – validly married in Australia – no evidence of financial, household or social aspects of relationship or nature of commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359A
Migration Regulations 1994 (Cth), r 15A(2), (3), Schedule 2, cl 309.211(2), 309.221

CASE
He v MIBP [2017] FCAFC 206

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 18 September 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 June 2017 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 or cl.309.221 because, based on the information available, they did not find the relationship between the applicant and the sponsor met the definition of spouse provided under section 5F of the Migration Act.

4. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether parties is whether the parties are in a genuine spousal relationship as defined under s.5F of the Migration Act.

6. The visa applicants’ background and claims were outlined by the delegate as follows:

   “The applicant, Mr ZHOU Jianming, is a 59 year old male from Shanghai, China. Mr ZHOU first travelled to Australia on a subclass 676 Tourist visa in 2007 in April 2007. In 2008, the applicant unsuccessfully attempted to change status onshore, and was granted a Subclass 010 Bridging visa. Mr ZHOU remained in Australia. For the period between March 2009 and October 2012, the applicant was granted 33 Subclass 050 bridging visas. In 2012 Mr ZHOU again attempted to change status, but was unsuccessful. The applicant remained onshore until 20 January 2017. Mr ZHOU has not since returned to Australia.

   “The applicant declared one prior marriage to Ms LU Feng (DOB: 3 April 1978), from January 2012 to July 2016. The marriage ended in divorce, with no children from the relationship. Departmental records reveal Mr ZHOU was previously married to Ms ZHI Deying (DOB: 5 November 1961), and has a son, ZHOU Yixian (DOB: 18 December 1988) from this marriage.

   “The sponsor, Ms BU Rongmei, is a 56 year old female born in Shanghai, China. Ms BU entered Australia on a Subclass 676 Tourist visa in August 2002, where she then absconded from an Approved Destination Status tour group. The sponsor remained onshore and acquired citizenship in 2006. Ms BU acted as a sponsor in a Subclass 309 partner visa for Mr TIAN Zheqing in 2007. In this application, Ms BU declared two previous marriages. The sponsor divorced from Mr TIAN in 2015.

   “According to their brief relationship statements, the applicant and sponsor (hereafter referred to as ‘the parties’) became acquainted at a party in Shanghai in 2000. They met again in Sydney in 2007 and kept in contact before falling in love “after a period of time”. The parties married on 16 January 2017. The applicant departed Australia 4 days later.”

7. The delegate refused the visa on 18 September 2018. The applicant lodged an application for review with the Tribunal on 20 November 2018.

8. The Tribunal received an unnamed, unsigned an undated submission that appears to be from the visa sponsor with the application for review.  No other evidence has been submitted to the Tribunal for consideration.

9. The Tribunal wrote to the visa sponsor on 02 December 2020, including an “evidence in partner case list”, under s.359A, indicating that if no response was received or no extension of time was requested, the review applicant would loose any entitlement they might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments. The Tribunal provided until the 16 December 2020 for the applicant to respond.

10. At the time of this decision on 03 February 2021, no evidence or reply in any form has been received by the Tribunal.

11. The Tribunal proceeded to make a decision on the application based on the information that was presented with the original visa application, and on the unnamed, unsigned and undated ‘statement’ submitted with the application for review.

12. The ‘statement’ submitted with the application for review appears to be from the visa sponsor, and outlines briefly how the parties met, claims that they have a joint bank account, and a brief explanation about some history of the relationship.

13. As the statement is unnamed, undated and unsigned; and no further evidence was submitted to substantiate and claims of the genuine nature of the relationship, the Tribunal places little weight on the ‘statement’.

    Whether the parties are in a spouse or de facto relationship

14. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.  

15. ‘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 visa applicant’s and review applicant’s 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?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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) on 16 January 2017.

    Are the other requirements for a spouse relationship met?

17. The Tribunal considered each matter in r.1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.15A(2).

    Financial aspects of the relationship

18. The Tribunal received no evidence to substantiate any of the financial aspects of the relationship.  The Tribunal places no weight on the financial aspects of the relationship.

    Nature of the household

19. The Tribunal received no evidence in support of the relationship. No claim was made by the parties that they reside together.  The Tribunal places no weight on the Nature of the household.

    Social aspects of the relationship

20. The Tribunal received no evidence in support of the social aspects of the relationship.  The Tribunal places no weight on the Social aspects of the relationship.

    Nature of the persons commitment

21. Whilst the Tribunal accepts the parties were legally married, The Tribunal has received no evidence to indicate the parties remain married at the time of this decision.  No evidence was received in support of the nature of the commitment.  The Tribunal places no weight on the nature of the commitment between the parties.

    Social aspects of the relationship

22. With consideration of the unnamed, unsigned and undated statement submitted to the Tribunal with the application for review, the Tribunal places no weight the social aspects of the relationship.

23. The Tribunal received no evidence in support of any other aspects of the relationship.

24. With consideration of the evidence as a whole that was submitted with the visa application, and the limited information provided to the Tribunal, The Tribunal finds that the applicant does not meet the requirements of s.5F(2) at neither the time of application or the time of this decision.

25. Therefore, the visa applicant does not meet cl.309.211 or cl.309.221.

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

27. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Joseph Francis
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).