Chan (Migration)

[2020] AATA 283

Chan (Migration) [2020] AATA 283 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tim Hang Chan

VISA APPLICANTS:  Ms Yin Fu
Mr Yule Fu
Miss Minnie Chan

CASE NUMBER:  1902781

DIBP REFERENCE(S):  BCC2015/1864839

MEMBER:Helena Claringbold

DATE:3 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211(2) of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations; and

the second and third named visa applicants be considered against the relevant criteria for the grant of the visas.

Statement made on 03 February 2020 at 10:04am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – Federal Circuit remittal  – genuine spousal relationship – no joint ownership of assets – no evidence regarding social activities – inconsistent evidence – previously excluded for 3 years – oral evidence provided to support relationship – mutual commitment to shared life – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 5
Migration Regulations 1994 (Cth), Schedule 2 cls 309.211, 309.221, 309.311, r 1.15A(3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 29 June 2015, Ms Yin Fu (the visa applicant) applied for a Partner (Provisional) (Class UF) visa. The application was based on her spousal relationship with Mr Tim Hang Chan, the sponsor and review applicant. Mr Yule Fu and Miss Minnie Chan, who are the visa applicant’s children, are included in the application as secondary applicants.

2. On 2 November 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant and the sponsor are genuine spousal partners and that the visa applicant did not enter into the relationship for migration purposes. Therefore, the visa applicant did not meet clauses 309.211 and cl.309.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). As a consequence, the secondary visa applicants did not satisfy cl.309.311.

3. On 9 November 2016, the review applicant provided the Tribunal with a copy of the delegate’s decision record and sought review of the delegate’s decision. On 13 March 2018, the Tribunal affirmed the decision as it was not satisfied that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. On 30 January 2019, the Federal Circuit Court of Australia remitted the matter to the Tribunal for reconsideration.

4. On 4 September 2019, the Tribunal invited the applicant to a Tribunal hearing on 20 November 2019.  On 9 September 2019, the Tribunal received a request that the hearing be postponed.

5. On 3 December 2019, the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether the visa applicant is the spouse of the sponsor as defined in s.5F of the Act.

   BACKGROUND ON THE EVIDENCE

9. In 1971, the visa applicant was born in Yiwu City, Zhejiang Province, China. Her father is deceased. Her mother and one sibling live in China and she has one sibling who lives in Australia. On 17 February 1997, she married Mr Wang Tat Chan. On 31 July 2010, Mr Chan and the visa applicant divorced. There are two children from this relationship born in 2000 and 2008. The two children live in China and they have been included in this application as secondary visa applicants. On 26 September 2010, the visa applicant married Mr Alan Patrick Cropper. On 29 February 2012, she was granted an onshore temporary partner visa based on her relationship with Mr Cropper. The applicant had applied for permanent residence in Australia based on her relationship with Mr Cropper but was refused by the Department on 12 June 2012. The applicant had been unlawful in Australia and on 24 June 2015, she voluntarily departed from Australia. On 24 November 2013, Mr Cropper and the visa applicant divorced. There are no children from this relationship.

10. In 1969, the sponsor was born in Kowloon, Hong Kong, China. His parents and one sibling live in Australia and he has one sibling who lives in China. He first entered Australia on 29 June 1979 and on 12 December 2012, he acquired Australian citizenship. On 1 November 1995, he married Ms Shavone Chan and on 25 January 2005, Ms Chan and the sponsor divorced. There is one child from this marriage who was born in 1996 and resides in Australia. He subsequently married Ms Sik Mei Lui on 18 May 2005. Ms Lui and the sponsor divorced on 11 November 2012. There is one child from this marriage who was born in 2003 and resides in Australia.

11. On 15 February 2012, the parties met in Sydney, Australia. DF138. On 6 January 2014, they married in Kogarah, New South Wales. 

    Are the parties validly married?

12. At the time the visa application was made, the visa applicant provided evidence of her marriage to the sponsor. 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 parties in a spousal relationship?

13. ‘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).

    CLAIMS AND FINDINGS

    Are the other requirements for a spousal relationship met?

14. 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 sponsor’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.

    The financial aspects of the parties’ relationship

15. The parties do not have any joint ownership of real estate or other major assets; or other than their joint bank account, have any joint liabilities or legal obligation in respect of each other. Copies of ‘Debit Confirmation of Outward Remittance’ are dated 2016 and 2017.  They record remittances from the parties’ joint bank account to the visa applicant’s bank account. A transaction list for the joint bank account is dated 2019 and records various deposits and withdrawals. Various documents are provided with heading ‘WeChat transfer receipt’ to a skin management centre. These are dated 2017-2019 for varying amounts in an unstated currency. The visa applicant told the Tribunal that the sponsor transferred money to her via his and a friend’s ‘WeChat’ accounts. The parties told the Tribunal that they have a beauty shop business together in Australia. The visa applicant stated that from the shop they make cash deposits into their joint bank account. They told the Tribunal that they have a 40 percent share in yoghurt and tea franchises in China and have paid a deposit for a franchise business in Hong Kong.  In support of these claims they provided numerous documents, including lease documents and service agreements and receipts for payments all in the visa applicant’s name. In a statutory declaration dated November 2019 the visa applicant’s sister stated the following: she invited the sponsor to join her in her family home until the visa applicant returned to Australia. The parties do not pay any rent but the sponsor shares utility bills and some food expenses. The Tribunal accepts the following: The visa applicant has lease and service agreements in her name in China. The parties have a joint bank account and that various transactions have taken place through the bank account. The parties transferred money from the joint bank account to the visa applicant’s bank account and the sponsor sent money to her via bank transfer. The Tribunal accepts that the parties pool financial assets and share some day-to-day household expenses.

    The nature of the parties’ household

16. There is no information before the Tribunal that the parties have any joint responsibility for the care and support of children. The visa applicant previously stated that she did the cooking and the sponsor helped with the housework. The sponsor told the Tribunal the following: the parties began living together in Blacktown. In February 2013, they moved to Parramatta and lived there until the visa applicant departed Australia in June 2015. The sponsor continued to live at the Parramatta address until its sale in 2017.  He then lived at the beauty shop and the visa applicant lived in Hong Kong in her sister’s accommodation and in China at her mother’s home. During the time the visa applicant lived in China and Hong Kong the sponsor travelled multiple times to be with her. The visa applicant returned to Australia in 2018 and the parties initially lived at one of their beauty shops. They then moved in with the visa applicant’s sister and her family where they continue to live. In a statutory declaration dated November 2019 the visa applicant’s sister stated the following: she invited the sponsor to join her in her family home until the visa applicant returned to Australia. The parties moved in after the visa applicant returned to Australia on 24 July 2018. The sponsor helps her take care of her cats and cleaning the house. The Tribunal accepts that the parties shared the responsibility of some housework.

    The social aspects of the parties’ relationship

17. The sponsor told the Tribunal that the parties enjoy walking together and grocery shopping and on Sundays find a quiet place to have lunch. In a statutory declaration dated November 2019 the visa applicant’s sister stated the following: she has gradually become to accept the parties relationship. The sponsor helped the family organise her mother’s funeral in Jinhua City just before Lunar New Year 2018. After she returned to Australia she visited the visa applicant’s beauty shop and witnessed that the sponsor was busy and the shop was organised.  WeChat records have been provided.  They do not provide any substantive information about the parties’ social activities.  Most of the entries contain one line and some entries contain images and other entries are in a language other than English and cannot be read by the Tribunal. Third party statements have been provided and collectively share a view that the parties’ relationship is genuine. Photographic evidence depicts the parties together and with others at different locations. Some photographs are captioned ‘with Ching (Yin’s sister) at Nan Tien Temple 2018’, while others record the parties at different locations. The Tribunal accepts that the parties represent themselves to other people and are accepted as being spousal partners. The Tribunal accepts that the parties plan and undertake joint social activities together.  

    The parties’ commitment to each other

18. The parties began living together in August 2012.  The parties married in January 2014 and  lived together as spousal partners until the visa applicant departed Australia in June 2015. The visa applicant remained offshore until July 2018. During this time the sponsor travelled to Hong Kong and China to be with her. When she returned to Australia in July 2018, the parties resumed living together. Since July 2018, the visa applicant has departed and entered Australia numerous times. The visa applicant told the Tribunal the following: the parties gave up a lot to be together. They endured the disapproval of the sponsor’s parents and of her own family. The partner visa application process was affected by her previous behaviour. She previously lied to the Department about remaining in a relationship with her ex-husband. This resulted in her being excluded from entering Australia for three years. Those years were difficult but the parties got through them. The sponsor told the Tribunal the following: the parties’ have had difficult times. In the last five years he has lived like a ‘back packer’.  However, since the visa applicant returned to Australia life has been good and he feels settled with the visa applicant by his side. The parties intend to travel to Hong Kong in December 2019 to research the market before setting up the yoghurt and tea shop there. If the visa applicant’s children came to Australia the parties would rent a property so that they could all live together.

19. The visa applicant’s sister told the Tribunal the following: she was estranged from the visa applicant and the sponsor and they didn’t speak for two to three years. She didn’t approve of the visa applicant’s relationship with the sponsor. Her relationship with the parties began to change during her mother’s illness and death.  Throughout this time the sponsor was supportive of the family and attended her mother’s funeral. She feels remorse for the difficult time the parties experienced and offered them accommodation in her home. She is impressed by the parties’ determination to try for a better future.  The Tribunal accepts that the parties provide companionship and emotional support to each other and see their relationship as long-term.

    Other considerations

20. The Tribunal carefully considered a number of aspects of the visa applicant’s and the sponsor’s oral evidence which concerned the Tribunal because it was inconsistent or caused the Tribunal to question (more broadly) the reliability of the parties’ oral evidence. Specifically, on one occasion the visa applicant provided different information about the parties’ financial matters in Australia. This contrasted with the sponsor’s information which was succinct, spontaneous and therefore reliable. On another occasion the sponsor was asked about where the parties had lived together. He provided vague responses. However as the Tribunal hearing progressed the chronology of events were logical. The Tribunal put other questions to the sponsor who gave wandering responses and appeared unable to provide a cogent response or indeed any consistent response, rather he changed responses and later blamed inconsistencies on misunderstanding or the passing of time.  On the other hand, the parties gave consistent evidence about other aspects of their relationship. This included consistent evidence about the unorthodox beginning of their relationship and of them facing family opposition to the relationship. This evidence was supported by oral evidence given by the visa applicant’s sister, who the Tribunal considered to give honest evidence. Although the Tribunal has concerns about these inconsistencies, it has weighted them against the other evidence of the case and has determined that the inconsistencies are not fatal to the application under review.

21. Overall, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. 

22. On the basis of the above the Tribunal is satisfied that the requirements of s.5F of the Act are met at the time the visa application was made and the time of this decision. Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

23. Therefore the visa applicant meets cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations.

24. As the visa applicant satisfies the criteria for the grant of the visa, the Tribunal directs that the second and third named applicants be considered against the relevant criteria for the grant of the visas.

25. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 309 visas.

    DECISION

26. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211(2) of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations; and

    ·the second and third named applicants be considered against the relevant criteria for the grant of the visas.

    Helena Claringbold
    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).