Cao (Migration)

[2018] AATA 3231

Cao (Migration) [2018] AATA 3231 (12 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yaxin Cao
Mr Yuqiao Cao

CASE NUMBER:  1607769

DIBP REFERENCE(S):  BCC2016/1496497

MEMBER:Kira Raif

DATE:12 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 12 January 2018 at 11:38am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) – Subclass 820 (Spouse ) – Genuine relationship – Married after knowing each other for three months –Communication difficulties – Sponsor visited applicant’s family – Range of inconsistencies in the applicant’s and sponsor’s evidence – Lack of common interests – Use of partner visa to remain in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359AA
Migration Regulations 1994 (Cth), r 1.15A Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 17 May 2016 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of China. The first named applicant (the applicant) was born in April 1968. She applied for the visa on 19 April 2016 on the basis of her relationship with the sponsor. The application includes her son. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl. 820.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 11 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and a number of witnesses nominated by the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. 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 a permanent resident of Australia.

6. ‘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 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).

   Are the parties validly married?

7. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with her application evidence of having registered marriage with the sponsor in Australia in March 2016. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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?

8. The Tribunal has considerable concerns about the timing of this relationship. The applicant claims she made several visits to Australia as a Tourist to visit her son and met the sponsor on 24 January 2016. Her evidence to the Tribunal is that although they saw each other online prior to that meeting, they did not communicate other than to say ‘hi’ to each other. That is, there was no meaningful contact between the parties until their face to face meeting on 24 January. The applicant stated on the application form that they committed to a relationship the day after, on 25 January and she explained to the Tribunal that after spending a few hours together at dinner (when their communication would have been limited at best), they decided they were suitable and happy about each other. The applicant states that the day after they met, the sponsor introduced her to his family and they commenced cohabitation.

9. The couple registered marriage on 12 March 2016. The Tribunal is mindful that they would have been required to wait a month after lodging the Notice of Intention to Marry to be able to register their marriage, so the NOIM would have been filed no later than 11 February 2016, barely three weeks after the couple met for the first time. The applicant’s oral evidence to the Tribunal is that they agreed to marry by 7 February and attended the Registry. The Tribunal is not convinced that it is possible to form a genuine commitment to marriage, and to get to know someone well enough to form such a commitment, in such a short period of time. This is particularly so as the applicant claims in her visa application form that her English is ‘limited’ and her English proficiency would have also affected the couple’s ability to get to know each other. All parties gave oral evidence to the Tribunal that the applicant’s English has improved but on the applicant’s own evidence, it was very limited when she first met the sponsor and when they claim the relationship developed.

10. The applicant told the Tribunal she had a three months visa and her application for the Partner visa was made a short time before visitor visa was due to expire. The duration of the applicant’s visitor visa appears to have played a significant role in the manner in which the present relationship developed. The haste with which this relationship formed and the couple registered marriage suggests that the applicant was keen to enter marriage – with any one rather than specifically with the sponsor - in order to remain in Australia.  The Tribunal acknowledges that a desire to obtain residence is not necessarily inconsistent with the existence of a genuine relationship. However, in this case the Tribunal has formed the view that the prospect of an Australian visa was, and remains, the only motivation for the applicant to be in this relationship.

11. The applicant’s evidence to the Tribunal is that she has very limited English. She claims she can communicate with the sponsor on simple matters and they also use WeChat. The Tribunal considers it problematic that the couple would choose to have a relationship when they have very limited ability to communicate and need to use a computer to communicate over anything other than most simple matters. The Tribunal acknowledges the applicant’s evidence that technology is very strong, and the evidence of others that her English has improved and that the couple communicate well, but the Tribunal considers it questionable that the applicant would seek a relationship in which she can barely communicate or express herself meaningfully. Her decision to enter such a relationship supports the Tribunal’s view that the sole reason for entering and maintaining this relationship was to enable her to remain in Australia.

12. The applicant repeatedly told the Tribunal that she knew straight away that the sponsor was the right person for her. She said he was ‘honest’. The Tribunal is mindful that the applicant was able to make that assessment within 24 hours of first meeting – when the couple started cohabitation and the sponsor introduced the applicant to his family – and decided to marry only two weeks later. Both the applicant and the sponsor repeatedly referred to ‘love at first sight’. If the couple were able to discover the ‘right person’ and discern each other’s positive characteristics within such a short period of time (despite not be able to communicate freely), it is odd in the Tribunal’s view that neither had found a suitable partner since their respective previous relationships ended.

13. The applicant’s oral evidence to the Tribunal is that when she came to Australia in January 2016, she brought the divorce papers with her, but not all papers necessary for marriage registration. The applicant told the Tribunal that she brought the divorce certificate with her on that occasion but not during her earlier visits to Australia, which would suggest that entering marriage in Australia was part of her plans. The applicant explained that she brought the divorce certificate to show to the sponsor that she was single, which supports the Tribunal’s view that a relationship and marriage was something the applicant considered before she travelled to Australia and before she actually met the sponsor. There was simply no other reason for the applicant to travel with the divorce certificate and no need to prove to the sponsor her single status. However, the applicant’s evidence is that before she travelled to Australia, she only said ‘hi’ to the sponsor online and they had not otherwise spoken to each other. The applicant’s consideration of marriage with someone she knew nothing about supports the Tribunal’s view that the applicant planned to enter marriage with anyone who would enable her to remain in Australia and that her sole motivation for entering, and remaining in, this marriage was to be able to obtain the visa.

14. The applicant had great difficulties explaining what she and the sponsor had in common. She said they have different hobbies, she tries to take an interest in the sponsor’s hobbies and has little opportunity to indulge in hers. Given the apparent lack of common interests and hobbies and inability to communicate on anything meaningful without the aid of a computer, the Tribunal finds the applicant’s evidence that “it is all about love” unconvincing. The applicant told the Tribunal that the sponsor works and they have little time to think about their interests. The Tribunal acknowledges that there are different factors that make each relationship work but in this case, the applicant’s evidence suggests the parties have little in common. The review applicant told the Tribunal they support each other but when asked to provide an example, she said that when they decide to do something on the weekend, they do it together and they attend functions together. In the Tribunal’s view, that is not a sufficient basis to establish a committed and a genuine relationship. The Tribunal also invited the applicant to provide an example of how they provide comfort and support to each other. She said they lead a simple life. That is not a reason, in the Tribunal’s view, for lack of common interests or emotional support or comfort. The Tribunal is not satisfied on the evidence before it that they do provide each other with comfort and emotional support.

15. There were a number of inconsistencies in the applicant’s and the sponsor’s evidence, which are outlined below. These were discussed with her in accordance with s. 359AA of the Act.

    a.The sponsor told the Tribunal he changed jobs because in his last job he was a casual employee and a full-time person took over. He said there was no other reason for the change. The applicant said the sponsor changed jobs because the old job was too far away.

    b.The applicant told the Tribunal that her son was doing a Foundation course. The sponsor said he was doing an Advanced Diploma course. The applicant said her son completed one year of the course. The sponsor was not sure how much of this course has been completed or what other courses the son has done previously. The applicant said her son completed high school and an English course.

    c.The applicant told the Tribunal that she has a property in China which she leases to students. She also used to have a restaurant business. The sponsor said she has a taxi business in China and no other business. The applicant initially stated that it was her sister who had the taxi business and later said that she herself have a taxi business which she ‘forgot’ to mention. The sponsor referred to the applicant’s restaurant business which he said went ‘belly up’ and which the applicant did not make any money on. The applicant told the Tribunal that she sold that restaurant business.

    d.The applicant told the Tribunal she did not bring all the papers with her needed for marriage registration when she came to Australia and her sister sent some papers later on. The sponsor said that she did bring all the papers with her when she travelled to Australia and when asked why she would bring such papers before they even met, the sponsor suggested she always travels with papers. In the Tribunal’s view it makes little sense to bring one’s divorce papers when travelling on a visitor visa.

16. The applicant’s explanation to the Tribunal is that she did mention these matters to her husband but maybe he did not understand or forgot. The applicant repeatedly stated that there is a communication problem between her and her husband. The Tribunal acknowledges that these matters are minor and have little bearing on the nature of the applicant’s relationship with the sponsor. However, the Tribunal considers these matters to be significant because they suggest that the parties do not have adequate communication and, in the Tribunal’s view, cannot communicate effectively and meaningfully, contrary to the assertions of the applicant, the sponsor and their witnesses. The applicant herself concedes there is a ‘communication problem’ and she sought to explain these discrepancies by the partners’ inability to communicate effectively. In the Tribunal’s view, that inability to communicate may affect their ability to form and maintain a mutually committed relationship and to provide each other with comfort and support. The Tribunal is not satisfied that the couple are able to do that. The Tribunal is not satisfied that the applicant and sponsor provide each other with companionship or draw on emotional support.

17. The Tribunal acknowledges that a substantial amount of documentary evidence has been presented with the application and to the Tribunal, which seeks to address the various aspects of the relationship. However, the Tribunal is of the view that such documents and evidence can be obtained even if the relationship is not genuine. Thus, the fact that the parties reside at the same address does not mean they have established a joint household. The fact that they put their names on various documents, bills or receipts does not mean they genuinely share their financial resources. For example, the Tribunal is mindful that the various organisations that send letters to the applicant and the sponsor at the same address have not undertaken any verification as to whether the couple live together. Those that issue receipts in joint names make no assessment whether both parties had contributed the funds. The fact that they took some photographs together does not mean they are committed to the relationship. That is, if the relationship was not genuine but a person wished to obtain evidence to convince Immigration that it was, the same documents could have been obtained. As such, the Tribunal does not consider the documentary evidence to be dispositive of the issues at hand.

18. For example, the applicant presented a lease agreement in both names. However, she could not name the real estate agent or the agency name that is responsible for the lease, stating her English is not good enough. The applicant stated the amount of the rent they pay weekly but did not know when the rent is paid, stating that the sponsor is responsible for these matters. The applicant said the rent is taken from the joint account but she could not understand when that happens because she could not read the bank statement. The applicant told the Tribunal that the sponsor is responsible for all the expenses and she does not understand the content of the financial papers. That is, the applicant appears to have no involvement in the rental arrangements and very little, if any, involvement in managing the financial issues. The inclusion of the applicant in these documents appears to have been made for the benefit of the visa application and the Tribunal is not satisfied that the joint papers including lease agreement and bank statements, represent the joining of affairs.

19. The Tribunal acknowledges there is substantial documentary and oral evidence from third parties about the relationship and the Tribunal accepts that the parties do socialise together and represent themselves to others as being in a relationship. The Tribunal accepts the others believe the couple to be in a genuine relationship.

20. There is evidence that the couple live together and they provided broadly consistent evidence about their living arrangements. The Tribunal accepts the couple have established a joint household. The applicant’s evidence is that she is primarily responsible for the housework.

21. There is evidence that the couple operate a joint account. The applicant’s evidence to the Tribunal is that she has no income and does not contribute to the account and also that due to her limited English she does not understand the transactions in the account. That is, there appears to be no reason for the couple to operate a joint account. When asked why they opened the joint account, given that the applicant does not contribute, The applicant told the Tribunal that they need the joint account to pay the bills (the Tribunal notes that there is no need for the joint account for that purpose) and to have easy access (however she told the Tribunal she uses cash and barely uses the account). Both the applicant and the sponsor also noted that their migration agent advised them it was necessary to have a joint account. That seems to be the real and the only reason the couple opened the joint account. The applicant’s evidence is that she does not contribute to the account and uses it infrequently. The Tribunal is not satisfied the joint account represents the sharing of resources. Rather, it adds to the Tribunal’s concern to that at least some of the documentary evidence in this case was prepared for the benefit of this application.

22. Nevertheless, the Tribunal accepts that the sponsor is providing financial support to the applicant and there is evidence that he has given at least some money to the applicant’s son. There is no evidence of joint ownership of assets or joint liabilities. There is no evidence of any legal obligations owed to the other party. The Tribunal accepts there is some sharing of funds for daily expenses.

23. Overall, the Tribunal accepts that there are several factors that suggest that the relationship may be a genuine one. In particular, the Tribunal accepts that the parties live together and represent themselves to others as being in a relationship and socialise together and that others believe them to be in a genuine relationship. The Tribunal accepts that the sponsor is providing financial support to the applicant and her son. The Tribunal accepts the family members are aware of the relationship and support it and the sponsor travelled to China to meet the applicant’s family. The Tribunal acknowledges that these factors indicate that the relationship exists between the applicant and the sponsor. However, the Tribunal has formed the view that the applicant entered, and maintains this relationship for the sole purpose of obtaining the visa. The haste with which she decided to enter this relationship, ensuring the application was made before the expiry of her visa, and the decision to enter the relationship before the parties learned much about each other, the fact that the applicant travelled to Australia with the apparent intention of entering marriage by bringing her divorce papers with her, all suggest that the applicant was keen to enter a relationship – any relationship rather than the relationship specially with the sponsor – for the sake of remaining in Australia. The Tribunal Is not satisfied that these motivations have changed since the parties met or since their relationship commenced. The Tribunal is of the view that obtaining the visa continues to be the applicant’s sole motivation and that she does not view the relationship as a long term one. The Tribunal also places weight on the fact that the applicant appears to have difficulties explaining what the couple have in common or why they make a good couple. The Tribunal finds the couple’s references to ‘love at first sight’ unpersuasive.

1. The Tribunal acknowledges that the relationship has been in existence for about two years. However, the Tribunal has formed the view that the applicant maintains the relationship for the sole purpose of the visa and does not view it as a long term one. The Tribunal is not satisfied the couple provide each other with comfort and emotional support. While the Tribunal is prepared to accept that the sponsor may be committed to this relationship, the Tribunal is not satisfied that the applicant is. That is, the Tribunal is not satisfied there is mutual commitment to this relationship.

2. Having regard to all the circumstances of this relationship, the Tribunal is not satisfied that when the application was made, and at the time of this decision, the applicant and the sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is not satisfied their relationship is genuine and continuing. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at [the time the visa application was made and the time of this decision. Therefore the applicant does not meet cl.820.211(2)(a).

3. There is no evidence that the applicant meets any of the alternative criteria for visa grant. There is no evidence that the sponsor has passed away, there are no claims and no evidence of family violence and no relevant evidence in relation to children. The Tribunal is not satisfied the applicant meets cl. 820.221. The secondary applicant does not meet cl. 820.321.

   Conclusion

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

   DECISION

5. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

   Kira Raif
   Senior Member