Chen (Migration)

[2019] AATA 4661

Chen (Migration) [2019] AATA 4661 (18 October 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Qichao Chen

CASE NUMBER:  1816996

DIBP REFERENCE(S):  BCC2013/2133756

MEMBER:  Christine Kannis

DATE:  18 October 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2)(c) of Schedule 2 to the Regulations

Statement made on 18 October 2019 at 6:41am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spouse or de facto relationship – validly married – financial, household and social aspects of relationship – nature of commitment – relationship genuine and continuing – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2)(a), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(c)

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 1 June 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 19 December 2013 on the basis of his relationship with his sponsor, Ms Qiongwen Xu. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.

1. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2)(c) because the delegate was not satisfied the applicant continued to the spouse of the sponsoring partner.

1. The applicant appeared before the Tribunal on 24 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

1. The applicant was represented in relation to the review by his registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant continues to be the spouse or de facto partner of the sponsoring partner as required by cl.801(2)(c).

Background

1. The applicant is a 34 year old Chinese national. The sponsor is a 35 year old Australian Permanent Resident.

1. The applicant and the sponsor were married on 19 November 2013 in a civil ceremony in Perth. They had a religious wedding ceremony on 2 August 2014 in Perth and a further traditional Chinese wedding ceremony in China on 22 December 2014.

1. On 6 January 2015 the applicant was granted a Subclass 820 visa.

1. On 23 May 2018 the Department interviewed the applicant by telephone (the telephone interview).

1. Prior to the hearing the applicant’s representative provided documentation which included but was not limited to Relationship Statements made by the applicant and the sponsor in August 2018, Statutory Declarations, photos, bank account statements and evidence of purchase of real estate. The Tribunal had before it significantly more information than was available to the delegate.

Whether the parties are in a spouse or de facto relationship

1. The evidence before the Tribunal included a Marriage Certificate issued by the Registry of Births, Deaths and Marriages, Perth WA which showed the applicant and the sponsor were married on 19 November 2013. The Tribunal was satisfied 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).

1. Section 5F 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.  In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the parties’ relationship as well as evidence with respect to the nature of their household and their commitment to each other, as set out in r.1.15A(3), which is extracted in the attachment to this decision.

1. The Tribunal considered the r.1.15A(3) matters.

Financial aspects of the relationship

1. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including the joint ownership of assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party and any sharing of day- to-day household expenses.

1. During the telephone interview the applicant told the Department that both he and the sponsor were employed and that their wages were deposited into a joint account. Statements for the joint account for the period 30 December 2017 to 29 March 2018 were provided. When he was advised that the statements did not show that wages were deposited into the joint account he said he was not sure where his wages were paid and said the sponsor handles the finances.

1. During the telephone interview the applicant told the Department that the sponsor paid the mortgage repayments on the house in which they lived and which was purchased prior to the marriage however the delegate noted that he did not appear to know the mortgage repayment amounts.

1. In Relationship Statements dated August 2018 the applicant and the sponsor each said that the sponsor is in charge of the couple’s finances. In her Relationship Statement the sponsor said in Shanghainese families the female generally assumes responsibility for managing the family’s financial affairs. She said they have an investment property in the applicant’s name however she arranges the Tenancy Agreement and the lodgement of the Security Bond. She said the applicant has no idea of his online banking log in details and she arranges the transfer of money from their individual accounts to a home loan offset account and their joint account.

1. The parties gave consistent evidence regarding the investment property and said the property and the mortgage are in the applicant’s name only. The property was purchased in August 2014.The mortgage repayments are made from the rental income and from their wages. Documentation evidencing the purchase and mortgage was provided.

1. The parties reside in a property at Orrong Road, Kewdale (Orrong Road).The property is in the sponsor’s sole name and the mortgage repayments are made from their wages.

1. In the Relationship Statements the applicant and the sponsor each said they run a business. The applicant said they started the business in September 2016. In her Relationship Statement the sponsor said the applicant is one of the directors and is the managing director of the business and she is the bookkeeper. She said they are both shareholders. She said the applicant has no idea of business management.

1. The applicant told the Tribunal he is the manager of the business and he works about ten hours each day. He said the sponsor has a full-time job however she does the bookkeeping for the business which takes about four hours each week.

1. ASIC records dated 13 July 2019 were provided which show there are three directors of the company which operates the business, Aumay Pty Ltd. They are the sponsor’s father, the applicant and Di Yu. The shareholders are the sponsor’s father, the sponsor’s mother and Di Yu. The applicant identified Di Yu as the sponsor’s cousin and said he is an investor in the business. The applicant said that he and the sponsor were previously shareholders however they relinquished their shareholdings because they are planning to buy another property and the shareholdings may have made it more difficult for them to obtain a loan. ASIC records show the parties were previously shareholders.

1. The parties gave consistent evidence with respect to payment of living expenses and said they were paid either from the parties’ joint account or from the loan offset account. Their respective wages are paid into the joint account and the sponsor transfers money into the offset account if it is required to pay expenses. Bank statements for 29 December 2018 to 29 March 2019 and 30 March 2019 to 28 June 2019 for an account in the parties’ joint names were provided. The transactions include debit transactions for Woolworths, Coles, Vodafone, Dan Murphy’s, wages, Synergy, water and HBF.

1. Bank statements in the sponsor’s name show debit transactions identified as “Terry home loan” and “funds to aumay” and “amex Terry apr19”.

1. A HBF car insurance policy showing the applicant and the sponsor as the nominated drivers of the insured vehicle was provided.

1. The Tribunal accepts that the sponsor is responsible for managing the parties’ financial affairs.

1. The Tribunal found the parties jointly own a small business with others. The Tribunal found the parties pool their financial resources and share living costs. The Tribunal decided that these are indicators of a spousal relationship at the time of decision.

Nature of the household

1. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

1. The parties live with the sponsor’s parents at Orrong Road. In her Relationship Statement the sponsor said they live with her parents because she is an only child and she is expected to look after them.

1. In her Relationship Statement the sponsor said the wise thing they did before they got married was to allocate the housework. She said she is the Finance Controller. She said it is

very Shanghainese for a man to hand his cards to the wife and said her mother and her mother-in-law control the finances at home. The sponsor said she manages all the bank accounts, credit card accounts and other bills.

1. The applicant and the sponsor gave consistent evidence about the division of household tasks and the Tribunal did not identify any significant inconsistency in this regard.

1. The Department and the Tribunal has been provided with a range of documentary evidence to demonstrate that the parties have resided together at Orrong Road.

1. The Tribunal finds that the nature of the household of the applicant and the sponsor at the time of decision is an indicator of a genuine and continuing spousal relationship.

Social aspects of the relationship

1. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being in a spousal relationship with each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

1. The parties gave consistent evidence with respect to their close friends. Statutory declarations attesting to their relationship and recognition as a couple were provided to the Department. The Tribunal noted that the most recent statutory declarations were sworn in 2018 and consequently requested the applicant to provide more recent evidence. Following the hearing current statutory declarations from friends were provided.

1. The Tribunal noted that the sponsor’s parents attended the hearing and were available to give evidence if required.

1. Numerous photos were provided prior to the hearing. They included photos identified as “current social photographs” and noted to have been taken in 2018 and in 2019.

1. In their Relationship Statements the applicant and the sponsor each said that it has been more difficult for them to have holidays since they started their business.

1. The parties gave consistent evidence with respect to how they spend their leisure time. This included watching a Chinese television series together at home and dining out at Chinese restaurants.

1. The Tribunal was provided with the parties’ Individual Tax Returns (ITRs) for the 2016/17 and 2017/18 financial years. In their respective ITRs the parties nominated each other as their spouse for the relevant financial year.

1. The Tribunal accepted the parties’ written and oral evidence that they represent themselves to other people, including the Australian Tax Office, as being married to each other and that they engage in joint social activities at the time of this decision.

Nature of persons’ commitment to each other

1. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

1. In her Relationship Statement the sponsor said they had planned to have a baby two years previously and she had purchased Elevit tablets and changed her private health insurance to include maternity benefits. She said they had not been successful and they had an appointment to discuss IVF treatment. The evidence provided prior to the hearing included an Assisted Reproductive Technology Treatment agreement signed by the applicant and the sponsor on 26 July 2019.

1. The parties gave consistent evidence with respect to their future plans. They are currently undergoing IVF treatment and are planning to buy a property in Applecross because of its proximity to their business and good schools. They are also planning to visit China as the applicant has not been able to return for several years because of visa conditions and work commitments.

1. The applicant said the sponsor provides him with emotional support and said she has always been encouraging when he is having difficulties at work. The sponsor said the applicant currently provides her with emotional support by being present when she has her IVF injections. She said she feels more secure when he is around.

Conclusion

1. The applicant and the sponsor generally gave oral evidence at hearing in a forthright and credible manner. The Tribunal placed weight on the financial aspects of the relationship and the nature of the parties’ commitment to each other. The parties both gave evidence that they see their future together and their relationship as a long term one.

1. Regarding whether the requirements of s.5F are met at the time of decision, the Tribunal decided:

·the parties are married to each other under a marriage that is valid for the purposes of the Act;

·they are living together;

·they have a mutual commitment to a shared life as husband and wife to the exclusion of others; and

·that the relationship is genuine and continuing.

1. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c) and the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

DECISION

1. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2(c) of Schedule 2 to the Regulations

Christine Kannis 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).