Chau (Migration)

[2021] AATA 1496

Chau (Migration) [2021] AATA 1496 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ping Chau

CASE NUMBER:  1801382

HOME AFFAIRS REFERENCE(S):          BCC2015/3235561

MEMBER:Russell Matheson

DATE:17 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2) of Schedule 2 to the Regulations; and

·cl 820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 17 March 2021 at 2:08pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties were legally married – parties validly married – genuine married relationship at the time of application –credible and honest witness –decision under review remitted

LEGISLATION
Marriage Act 1961
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

CASES
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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant is a female national of Hong Kong born in December 1958. She applied for the visa on 2 November 2015 based on 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.   

4. The applicant appeared before the Tribunal on 16 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the applicant’s friend (Ms He). The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review by her 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 issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

8. The Tribunal has before it the applicant’s file from the Department of Home Affairs (the Department); its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

9. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

   Whether the parties are in a spouse or de facto relationship

10. 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 an Australian citizen.

11. ‘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 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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the marriage certificate registered under the Marriage Act 1961 indicating the applicant and sponsor were married at Bankstown in NSW, on 30 May 2015. There is no evidence before the Tribunal to indicate that the marriage is not valid. 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).

13. In forming an opinion as to whether they are in a marital relationship and in considering whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together and not separately and apart on a permanent basis as defined in s.5F(2)(b)-(d), the Tribunal has had regard to all the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3).

14. After careful consideration of all the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

15. The Tribunal had the benefit of the applicant’s, the sponsor’s and a witness’s oral evidence at the hearing and found their evidence to be detailed, consistent and overall, credible. The Tribunal gave all the evidence provided by the parties at the Tribunal hearing and evidence provided by the applicant to the Department and the Tribunal file due regard. The applicant provided a significant amount of additional documentary and documentary and photographic evidence to the Tribunal.

16. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor during the hearing and the Tribunal is satisfied that the parties were genuine and credible witnesses. 

    Are the other requirements for a spouse relationship met?

    Financial aspects

17. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of daily household expenses.

18. The parties gave evidence that they operate a joint Westpac account which is utilised for their day-to-day living expenses. The sponsor stated that he has his own personal Westpac account that his pension is deposited into and that he uses to pay all the household bills such as rent and utility bills by direct debit. The sponsor provided copies of Westpac bank statements confirming the direct debits. The parties provided evidence of debit cards #1240 and # 5792 in individual names linked to their joint account and statements showing usage of the cards for regular small purchases indicating the transactions were for daily living expenses. The applicant stated that she works as a cleaner and is paid by way of cash and she deposits (via ATM) differing amounts into the joint account on a regular basis depending on her work hours for the couple’s daily household expenses. The applicant further stated that she had her own Commonwealth Bank Australia account with no savings. The applicant provided her Australian Tax Office (ATO) assessments for the past three years and several receipts for household purchases in joint names.

19. The parties had a sound knowledge and presented detailed and consistent evidence of their financial affairs, including individual income, bank accounts, daily living expenses, payment of personal and household bills and future financial plans and commitments.

20. The parties gave detailed and consistent evidence in relation to the financial aspects of the relationship. The parties’ evidence is that they have no joint liabilities, no major assets such as property together and limited savings in the joint account. There is limited evidence before the Tribunal of pooling or sharing of financial resources or any ongoing financial obligations.

21. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. The Tribunal accepts that the parties are prepared to share their financial resources and any ongoing or future financial responsibilities.

22. The Tribunal places some positive weight on this aspect of the relationship.

    Nature of the household

23. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, the living arrangements and daily routine of the parties and the sharing of the responsibility for housework, to form an opinion as to whether the parties are living together and not living separately and apart on a permanent basis.

24. The applicant, sponsor and witness gave consistent and detailed evidence of the parties cohabiting at their current home address at Lidcombe. The sponsor provided evidence that the applicant looks after the household responsibilities due to his poor health and looks after the financial aspects of their relationship such as paying the household bills. He further stated that without the applicant’s love and care he might not be alive today after suffering a fall and passing out at home resulting in him being hospitalised. The parties provided detailed and consistent evidence of their personal history, living arrangements, household responsibilities, household purchases, daily routine, employment and work hours. The parties provided a significant amount of documentary evidence such as utility bills, medical attendance certificates, mobile phone bills, tax assessments, club membership, mail from Service NSW and Health NSW and other correspondence addressed to them individually and jointly at their current address confirming that they are cohabiting. They also provided photographic evidence of themselves in a household environment and the applicant providing care and support to the sponsor due to his health issues. The Tribunal found the parties’ oral evidence and the documentary and photographic evidence persuasive. The parties stated that they have informed government authorities such as the ATO they are in a spousal relationship.

25. The Tribunal accepts that the parties live together, and they have established a joint household and share the responsibility of the housework. There are no children from the relationship.

    Social aspects

26. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

27. The parties provided a significant amount photographic evidence of their social activities together (some captioned and dated) prior to COVID-19. The applicant gave evidence that the parties generally socialise at home and invite friends over for dinner because of the sponsor’s mobility problems. She further stated occasionally the parties rely on friends to take them to a restaurant or the club when the sponsor is capable. The Tribunal accepts the sponsor has health and mobility issues that restrict the parties’ social activities outside the home environment.

28. The sponsor admitted that he is somewhat of a recluse due to his health issues and mobility and his only close friend is his neighbour who lives in the same building as him. He further stated that the applicant’s family are his family because he has no contact with any of his own relatives. The Tribunal accepts that the parties’ relationship is supported by the applicant’s family based on the evidence presented.

29. The parties provided several Form 888 statutory declarations and statements to the Tribunal from family and friends of the applicant. The declarations state they have known the parties for a limited period and attest to the genuineness of the relationship. However, the statements give little insight into the inception and development of the relationship over time. The Tribunal places little weight on the statements as convincing evidence of the parties being in a genuine spousal relationship. The applicant’s friend gave evidence of her knowledge regarding the inception and development of the relationship over time. The Tribunal accepts that the witness had a sound knowledge of the parties’ relationship and the Tribunal places some positive weight on her evidence.  

30. Overall, the Tribunal accepts that the relationship is socially recognised by family and friends and they represent themselves to other people as being married to each other. The Tribunal accepts that the parties plan and undertake joint social activities together.

31. The Tribunal places some positive weight on the social aspects of the relationship.

    Commitment

32. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other and whether the parties view the relationship as a long-term one.

33. The parties claim to have entered a committed relationship in November 2014 and married in May 2015. The applicant provided a copy of the couple’s marriage certificate. The Tribunal accepts the parties are legally married. To date, the parties have been in a relationship for a period exceeding five years.

34. The Tribunal questioned the applicant as to why she regularly travelled to Hong Kong when she claimed that the sponsor required her care and support due to his health issues. The applicant responded that her mother was placed in aged care and she had a responsibility to visit her mother as the only daughter and her mother wanted her to visit. She further stated that she travelled for dental treatment on other occasions after her mother’s death. The applicant gave evidence that she arranged for her friend to provide care and support for the sponsor when she was absent visiting her mother and receiving dental treatment. The parties provided evidence that the sponsor could not travel due to his poor health and lack of mobility.  The sponsor in his written submission stated that the applicant cancelled one trip to visit her dying mother to provide care and support to him after he had an accident at home, and he was hospitalised. He further stated that he has had two serious incidents at home and may not be alive today if it wasn’t for the applicant’s presence. The parties provided evidence of their communication with each other (phone records and WhatsApp dialog and messages) during times of separation.

35. The parties gave evidence that they share the same religious beliefs (catholic) and are accepting of each other’s cultural background and they have both developed their English and Cantonese language skills for better communication with each other. They further stated that they have enriched each other’s lives and are at an age where they enjoy each other’s company and common interests in food and music. The Tribunal found the parties to be genuine when providing evidence of their relationship.

36. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence regarding their commitment to each other plausible, persuasive and genuine.

37. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their religious beliefs, cultural differences, common interests, expectations and future together.

38. The Tribunal is satisfied the parties provide each other with a strong degree of companionship and emotional support that is commensurate with a couple having a commitment to a shared life together. The Tribunal is satisfied the couple view their relationship as a long-term one.

    Findings

39. The Tribunal is satisfied, having had regard to the totality of the circumstances and the evidence provided at the hearing, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together and not separately and apart on a permanent basis. Having considered all the evidence and the circumstances of the relationship as detailed above, the Tribunal is satisfied the parties were in a spousal relationship at the time of application.

40. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an Australian citizen who had turned 18.

41. The applicant’s movement records provide evidence of her having been the holder of an Electronic Travel (Subclass 601) visa at the time of application which was valid until 10 November 2015. She held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 2 November 2015. As the applicant held a substantive visa at the time of application, further requirements in cl.820.211(2)(d) need not be met.

42. Based on the above the Tribunal is satisfied that the requirements of s.5F(2)(b)-(d) of the Act were met at the time the visa application was made and are met at the time of this decision.

43. Therefore, the applicant meets cl.820.211(2) and cl.820.221(1)(a).

44. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

45. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    · cl.820.211(2) of Schedule 2 to the Regulations; and

    · cl.820.221(1)(a) of Schedule 2 to the Regulations.

    Russell Matheson
    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).