Chen (Migration)

[2024] AATA 3863

Chen (Migration) [2024] AATA 3863 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yizhong Chen

VISA APPLICANT:  Mrs Meihui Ke

REPRESENTATIVE:  Mr Simon Sen Tao (MARN: 1277816)

CASE NUMBER:  2101850

DIBP REFERENCE:  BCC2019/4437258

MEMBER:Glynis Bartley

DATE:2 September 2024

PLACE OF DECISION:  Sydney

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

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 2 September 2024 at 2:05pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – Tribunal accepts that the marriage was valid – parties intend to establish a joint household in Sydney – limited evidence that the relationship is recognised by the review applicant’s family – satisfied that the parties have a long-term commitment to each other – in a genuine and continuing spouse relationship – decision under review remitted      

LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, rr 5F, 1.15, Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this review is whether the visa applicant, Mrs Meihui Ke, is the spouse of her sponsor, Mr Yizhong Chen, as defined in s 5F of the Migration Act 1958 (the Act).

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Act.

3. The visa applicant applied for the visa on 5 September 2019 on the basis of her relationship with her 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.

4. The delegate refused to grant the visa on 14 January 2021 on the basis that the visa applicant did not meet cl.309.211(2) of the Regulations. The delegate was not satisfied that the visa applicant was the spouse of the review applicant, as defined in s 5F of the Act.

5. On 17 February 2021, the review applicant applied to the Tribunal for review of the delegate’s decision.

6. The review applicant appeared before the Tribunal on 28 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the visa applicant and from a mutual friend; Mr Yizhong Lin. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin language.

7. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing in person.

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

   BACKGROUND

9. The review applicant is a 55-year-old Australian permanent resident. He was born in China and is a citizen of China. The review applicant has declared two previous marriages, both of which ended in divorce. He has one adult son from his first marriage. The review applicant’s parents are deceased. He has one older brother who lives in Taiwan. The review applicant is employed in the construction industry on a casual basis.

10. The visa applicant is a 49-year-old Chinese citizen. She has not declared any previous marriages or de facto relationships and does not have any children. The visa applicant’s parents, brother and one of her sisters live in China. Three of her sisters live in Hong Kong. The visa applicant is employed as an industrial equipment salesperson.

11. The review applicant and the visa applicant (the parties) stated in the application that they met in China in February 2018 after being introduced by a mutual friend, Mr Lin. They formed a committed relationship in February 2019, and were married in China on 12 March 2019.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Prior to the hearing, the review applicant’s representative submitted additional documents to support the application including but not limited to the following: electronic communication records between the parties, statements by the parties and witnesses, photographs and submissions by the review applicant’s representative.

13. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at the hearing.

14. The parties gave generally consistent oral evidence regarding the inception and development of their relationship and their living arrangements when the review applicant is in China. There were two discrepancies regarding the visa applicant’s family, which I put to the review applicant in accordance with s 359AA of the Act at the hearing. After consulting with his representative, the review applicant advised that he did not require additional time to provide a response after the hearing. The review applicant said that the parties tend to discuss their own lives rather than the living arrangements of their families. The review applicant also said he has some difficulties with his memory due to his physical health problems.

15. The review applicant’s representative submitted that the discrepancies in the parties’ oral evidence at the hearing were minor and likely due to the review applicant’s medical condition.

16. The review applicant’s lack of knowledge about some basic details of the visa applicant’s family, including that the visa applicant’s elderly parents live alone rather than with her brother was troubling. Nonetheless, I accepted that the review applicant has advanced  kidney disease requiring regular dialysis, which may well cause difficulties with his concentration and memory. The review applicant became highly distressed at one point during the hearing when discussing his kidney disease and the need for lifelong treatment. Understandably, he is concerned about and focused on his health. I accepted that the parties prefer to focus on their own lives rather than the personal circumstances of their families. The copies of electronic messages between the parties provides some support to the review applicant’s claims regarding the nature of their communication. I have therefore placed limited weight on the discrepancies in the oral evidence at the hearing.

17. Nevertheless, some other aspects of the evidence were concerning, including that the parties have never discussed their savings with one another and have never met or spoken by telephone or video with each other’s siblings. The visa applicant has also never met or spoken with the review applicant’s son. In contrast, there was other evidence before the Tribunal that was particularly persuasive, including that the parties lived together in China for a month from December 2023 to January 2014, and the visa applicant drove the review applicant to hospital every second day for dialysis and waited with him at the hospital for four to five hours while he received the treatment.

18. I considered that the parties’ oral evidence could generally be relied upon, in particular the review applicant’s as he attended the hearing in person and his sincerity could therefore be more readily assessed.

19. Mr Lin gave his oral evidence in an open and forthright manner. I have placed some weight on his evidence as I considered he was being truthful.

    Whether the parties are in a spouse or de facto relationship

20. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl.309.221. In the present case, the visa applicant claims to be the spouse of the review applicant who is an Australian permanent resident.  

21. ‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

22. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties provided a copy of their marriage certificate to the Department at the time of application. There was no evidence before me to cast doubt on the validity of the parties’ marriage in China on 12 March 2019, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find that 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 spouse relationship met?

    Financial aspects of the relationship

23. The review applicant lives in a granny flat behind his son’s home in Southern Sydney. The review applicant and his son purchased the property together, so the review applicant does not pay any rent to live there. The review applicant gave oral evidence that his son is solely responsible for paying the mortgage. The visa applicant lives in a two-bedroom unit that she rents from her employer. The unit is located at the site of her company.

24. The parties do not have any joint assets or debts. They are both employed and have some savings. The parties have not opened a joint bank account and do not owe any legal obligations to one another.

25. The review applicant works casually because he requires dialysis three times per week. The visa applicant is employed on a full-time basis. The parties have not discussed their savings with one another, and the visa applicant was reluctant to discuss her assets during the hearing. The review applicant told me that he has never raised this issue with the visa applicant as he considers it would be overly intrusive. The parties were aware of the details of each other’s employment and income. The visa applicant was aware that the review applicant jointly owns the property that he lives in with his son. The review applicant was open with the Tribunal that he has not sent money to the visa applicant as she is financially secure and does not require assistance to meet her day-to-day needs.

26. The parties have spent around three months in total living together in China since they formed a relationship in 2019. I accepted that they have pooled their financial resources and shared day-to-day expenses during their relatively brief periods of cohabitation.

27. The parties gave generally consistent oral evidence regarding their financial plans for the future. They hope to purchase a home together in Sydney and establish a grocery business. Their financial plans do not appear to be well developed because they have not yet had an open conversation about their respective assets.

28. I placed limited weight on this aspect of the parties’ relationship because they live in different countries.

    Nature of the household

29. The parties gave persuasive oral evidence regarding their joint living arrangements in China, including details of the review applicant’s most recent trip. I accepted that the parties have lived together in China for a total period of around three months since their marriage. When the review applicant is in China, the parties live together in the visa applicant’s two-bedroom unit. I accepted that their periods of cohabitation have been constrained by the COVID-19 pandemic and the review applicant’s health problems.

30. The parties gave consistent oral evidence that the visa applicant does the majority of the household chores, including cooking, cleaning and laundry when the review applicant is in China. The review applicant assists when he is able, but this is contingent upon his health. The parties do not have any joint responsibility for the care and support of children.

31. I am satisfied on the basis of their oral evidence that the parties intend to establish a joint household in Sydney.

    Social aspects of the relationship

32. The parties were married in China in March 2019 and celebrated with a small group of family and friends later that year. The visa applicant’s parents attended that celebration, as demonstrated by the photographs and witness statements submitted. The review applicant explained that he did not wish to hold a large wedding because this is his third marriage. The visa applicant told me that her siblings live far away, and they were therefore unable to attend the event. However, they are aware of the parties’ marriage.  

33. The parties gave oral evidence that they prefer to stay at home together when the review applicant is in China. They sometimes go out to eat with friends, including with Mr Lin, but this is infrequent. Their socialising is restricted to some extent by the review applicant’s ill health and need for dialysis. The parties said they enjoy going on walks and exercising together.

34. I am troubled that the review applicant has not introduced his son to the visa applicant, either in person or by video or telephone. Similarly, the parties have never met or spoken with each other’s siblings. I placed little weight on the statutory declarations that were provided to the Department as the witnesses had not met the visa applicant in person or seen the parties interacting. That evidence was entirely derived from the review applicant.

35. Mr Lin gave oral evidence at the hearing that he introduced the parties, attended their wedding and saw them together when the review applicant travelled to China in December 2023. He attested to the genuineness of the relationship and said the parties are a loving and close couple. Mr Lin told me that he observed the visa applicant being very attentive to the review applicant and rarely leaving his side during the most recent trip. I have placed some weight on Mr Lin’s evidence as he has spent time with the parties relatively recently and had an opportunity to observe their interactions.

36. The visa applicant’s parents provided statements prior to the hearing, dated 10 August 2024, supporting the parties’ relationship and the application.

37. A mutual friend, Ms Xiaoben Lin, also provided a supporting statement, dated 11 August 2024. Ms Lin said she spent time with the parties in December 2023 and observed their respectful and affectionate relationship. She said their personalities complement each other in that the review applicant is reserved and not talkative and the visa applicant is outgoing, cheerful, talkative and confident. Ms Lin said the visa applicant accompanied the review applicant to all of his medical appointments while he was in China, including to dialysis, and took great care of him. Ms Lin said it is clear that that the visa applicant is a devoted wife, and she is happy to see that the review applicant has found such a considerate and attentive partner to spend his life with. I have placed some weight on the witness statements provided to the Tribunal as there was a reasonable amount of detail provided. I accepted that the witnesses, including the visa applicant’s parents, have spent time socialising with the parties in China.

38. The majority of the photographs provided to the Department and the Tribunal show the parties alone rather than with others. The photographs of the wedding are an exception as they show a small group of guests were present at the event. The review applicant gave oral evidence that his son is aware of the relationship but could not attend the Tribunal hearing because he was working. There is no independent or persuasive evidence that the review applicant’s son is aware of or supports the parties’ relationship.

39. While the evidence from third parties to support the social aspects of the parties’ relationship was not extensive, I am satisfied on the basis of the witness statements submitted to the Tribunal and the oral evidence at the hearing that the parties represent themselves to other people as being married to each other. There is limited evidence that the relationship is recognised by the review applicant’s family or more broadly in the community.

    Nature of the persons’ commitment to each other

40. The parties have been married for around five and a half years and have spent around three months living together in China. I placed substantial weight on the length of the parties’ relationship.

41. The review applicant’s representative provided copies of communication records prior to the hearing. I accepted that the parties communicate regularly by telephone and electronic messaging. While some of the content appears quite superficial, for example frequent conversations about food and the weather, the messages demonstrate that the parties are concerned about each other’s health and welfare.

42. I am satisfied that the review applicant was unable to travel to China to spend time with the visa applicant for around three years from 2020 until 2023 due to the COVID-19 pandemic travel restrictions and his own health problems. The visa applicant planned to visit the review applicant in Australia in 2023 but was unable to do so as her Visitor visa application was refused.

43. The visa applicant demonstrated an awareness of the review applicant’s health problems at the hearing. Importantly, she drove him to dialysis multiple times each week while he was in China between December 2023 and January 2024, and waited at the hospital while he had the treatment. The parties gave consistent evidence that the visa applicant took leave from her employment to ensure the review applicant received his dialysis treatment. I have placed substantial weight on this evidence as it indicates a high level of commitment to the relationship on the visa applicant’s part. The review applicant’s decision to travel to China to spend time with the visa applicant despite his advanced kidney disease and high care needs indicates he is committed to the relationship.

44. The parties demonstrated a reasonable understanding of each other’s daily routines and families at the hearing, although there were some exceptions as outlined above. They were aware of one another’s siblings, nieces and nephews. The visa applicant demonstrated some knowledge of the review applicant’s grandson and the nature of the review applicant’s son’s employment. The parties gave a similar account of their plans for the future, including to live together, purchase a home and establish a grocery business. The visa applicant presented as being genuinely concerned about the review applicant’s health and committed to providing him with day-to-day care. I am persuaded that the parties provide one another with companionship and emotional support.

45. Despite my concerns outlined above, I am satisfied that the parties have a long-term commitment to each other. This supports a finding that they are in a genuine and continuing spouse relationship.

    Conclusions

1. Given the above findings, I am satisfied that at the time of the visa application and at the time of this decision the parties were in, and continue to be in, a genuine and continuing relationship and have a mutual commitment to a shared life as husband and wife to the exclusion of all others. They have lived together for brief periods in China and intend to resume that arrangement in Australia. Therefore, the parties do not live separately and apart on a permanent basis.

2. I am satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. The visa applicant therefore meets cl.309.211 and cl.309.221.

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

   DECISION

4. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211 of Schedule 2 to the Regulations

   ·cl.309.221 of Schedule 2 to the Regulations

   Glynis Bartley
   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).