Chen (Migration)

[2019] AATA 4282

Chen (Migration) [2019] AATA 4282 (2 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chieh-min Chen

CASE NUMBER:  1725423

HOME AFFAIRS REFERENCE(S):           BCC2017/2514333

MEMBER:Meredith Jackson

DATE:2 October 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 02 October 2019 at 4:48pm

CATCHWORDS
MIGRATION – refusal – Student (Temporary) (Class TU) visa – Subclass 500 – family unit – de facto relationship – relationship must have existed for at least 12 months before application – applicant lived in home of primary person’s family – characterisation of de facto relationships in Taiwan – boyfriend-girlfriend relationship not de facto relationship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.311

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 and Border Protection on 28 September 2017 to refuse to grant you a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2.    You applied for the visa on 14 July 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3.    You appeared before the Tribunal on 11 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the primary person, Mr Ching-Yen Kuan.  You were assisted in relation to the review by your registered migration agent.

4.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

5.    The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

6.    The issue in the present case is whether you meet the secondary criteria, in particular cl.500.311, which provides that:

500.311

The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

(a)   the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

(i)the primary person’s application under subregulation 2.07AF(3); or

(ii)information provided in relation to the primary person’s application under subregulation2.07AF(4);

or

(b)   the applicant became a member of the family unit of the primary person:

(i) after the grant of the student visa to the primary person; and

(iii)before the application was made.

Case summary

7.    The applicant is Ms Chieh-Min Chen, a 28 year old national of Taiwan who first came to Australia on a working holiday visa on 27 September 2016. In August 2017 you applied for the student visa under review as a member of the family unit of Ching-Yen Kuan, the primary person for the purposes of the regulations. Mr Kuan had also arrived in Australia on a working holiday visa on 27 September 2016 and on the same flight as you. He was granted a student visa on 28 September 2017, the day your visa was refused on the basis there was insufficient evidence before the delegate that you satisfied the de facto relationship requirement.

Delegate’s decision

8.    The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of cl.500.311. The delegate noted that in order to meet the criterion, a family member must have become a member of the family unit of the primary person before the grant of the student visa. For an application for a student visa, the de facto relationship must have existed for at least the 12 months immediately prior the date of application (hereinafter the 12-month requirement). The delegate found that you were not able to provide satisfactory evidence in relation to aspects of the relationship and you had been in the relationship since January 2017 only.

Written submissions

9.    Prior to and at the hearing, you submitted documentary evidence to the Tribunal including:

a.The delegate’s decision record;

b.Declarations in support of the existence of your relationship including a statement from the parents of Mr Kuan and from a former employee of Mr Kuan in Taiwan;

c.Submission by your migration agent regarding the matter under review;

d.Marriage certificate dated 4 September 2017;

e.Personal submission from you and Mr Kuan regarding the circumstances of your relationship;

f.A document indicating a shared rental arrangement in Byron Bay from 31 January 2017;

g.Evidence of Overseas Student Health cover insurance;

h.Information regarding joint banking arrangements;

i.Photographs taken between 20 December 2017 and July 2019;

j.Academic records and enrolment details;

k.Information regarding an education agency business venture in Taiwan in which Mr Kuan is described as the director of the company and you are described as a supervisor.

The hearing

1. Your migration agent asked the Tribunal to take into account the following factors in support of your claim that a relationship existed for more than 12 months prior to the application being lodged:

   a.You had been in a relationship in Taiwan while living with Mr Kuan and his family in Taiwan and you had provided a statement from Mr Kuan’s parents about the relationship’s circumstances;

   b.You had met in adolescence and only ever been in a relationship with each other, it has been a “natural flow” for you to come to Australia on working holiday visas and then apply for student visas;

   c.You did not have the advice of a migration agent at the time you applied for the visa;

   d.The term “de facto” would have meant “boyfriend-girlfriend” to you in a Taiwan context;

   e.Your application was lodged on 14 July 2017 and you married on 4 September 2017, which was during the visa processing period. A delay in the marriage certificate being issued in Hong Kong had meant the certificate was not lodged with the department until after the grant;

   f.You and Mr Kuan had had no doubt you would be eligible for the visa and did not raise the issue with your education agent;

   g.You have provided evidence of eight months in a de facto relationship in Australia and you are hopeful that together with that evidence, and Mr Kuan’s parents’ statement, Tribunal might to apply a discretion and accept the relationship existed for at least 12 months prior to the visa application.

2. You stated at the hearing in response to Tribunal questioning:

   a.When submitting evidence to the department, you did not understand the evidence requirements; at that time you had “been together” for eight years;

   b.You arrived in Australia together on 28 September 2016 on working holiday visas and had provided evidence of that joint travel;

   c.The main evidence of having been in the relationship for eight years can be found in the photographs you provided to the department which are dated from 2008;

   d.Because you lived together at the home of the Kuan family in Taiwan you had no rent agreement there, and joint bank accounts were not used in Taiwan; but you jointly used your (Ms Chen’s) account for savings;

3. Mr Kuan also gave evidence and stated:

   a.You met in high school and have been together a really long time;

   b.You lived as a couple within the family in Taiwan and did not consider getting married at that time because marriage was a big thing in Taiwan that took time and money to prepare for;

   c.De facto relationships were more likely to be characterised as “boyfriend-girlfriend” in Taiwan;

   d.While living together in Taiwan you opened an education agency together where Mr Kuan was the owner and you were an employee but the venture collapsed within eight months;

   e.Mr Kuan’s income was deposited in a joint account in Australia.

Analysis and conclusions

1. The Tribunal has had careful regard to all your evidence, including submissions to the department and to the Tribunal from Mr Kuan, your friends and Mr Kuan’s family, about the genuineness and duration of your relationship, and has closely examined your documentary and oral evidence about your past and current circumstances.

2. The Tribunal concludes that you have been in a married relationship since 4 September 2017 and is satisfied that your relationship is genuine and continuing at the time of this decision.

3. The Tribunal has considered your claim that at the time of the visa application, you had been in a de facto relationship with Mr Kuan for up to eight years and that therefore you were a member of his family unit for a period of more than 12 months immediately before the application for the visa on 14 July 2017. The Tribunal notes the department was satisfied that the relationship existed from January 2017. In order to reach a conclusion on whether this means the relationship existed prior to January 2017, and then, whether it existed for a period of 12 months prior to the visa application date of 14 July 2017, the Tribunal has taken into account you claims:

   a.That you were declared as a de facto partner in the initial visa application made on 14 July 2017 by the primary person, Mr Kuan;

   b.That after you were initially assessed by the department for the visa under review, you were given a period of 28 days to provide evidence of the that a de facto relationship with Mr Kuan had existed for at least 12 months prior to the initial visa application by Mr Kuan;

   c.That in response you provided the department a number of documents, primarily photographs of you and Mr Kuan taken between 2011 and February 2016; a letter regarding the direction of your salary to a joint account in Australia with Mr Kuan dated 30 September 2016; a joint rental agreement with Mr Kuan dated 31 January 2017 and travel documents.

   d.That you found it difficult to fully substantiate your relationship with evidence when asked to do so by the department, because the quality of advice you were receiving at the time was poor and you did not understand what was required of you;

   e.That you were married in Australia on 4 September 2017 while the application for the visa under review was being processed, but you did not submit your marriage certificate to the department in that period because its issuance was delayed in Hong Kong;

   f.That you met Mr Kuan in Taiwan while in high school in 2013 and that you lived in his home with his family for several years in a relationship that you believe aligns with the de facto status envisaged by the Regulations;

   g.That you claim to have founded an education agency in Taiwan on 12 November 2015 to counsel students and that you were a supervisor in the company while Mr Kuan was a director and this is evidence of joint financial arrangements.

4. The Tribunal has assessed each of these claims and the evidence provided and finds as follows.

5. With regard to your claim that you were not adequately advised regarding the type of supporting evidence required by the department, the Tribunal accepts that the quality and quantity of your submissions to the department were affected by the advice you received from your education agent, who was your adviser at that stage. The Tribunal also notes however, that you now have the benefit of advice from a registered migration agent and, despite that advice, you have not been able to provide the Tribunal with a convincing body of evidence about the length of your relationship when there is a clear and pressing need to do so for the purposes of the review. The Tribunal affords your claim that at times you have had poor advice from representatives, little weight.

6. With regard to your claim that you had “been together” for eight years prior to the application, the Tribunal is mindful that the evidence provided to support your argument is confined to photographs and a statement from Mr Kuan’s parents that you were “a couple”. The Tribunal notes the delegate found an ongoing relationship appeared to have begun in January 2017, when you began living together in Australia. The Tribunal accepts that it is possible that the relationship had an earlier start date, which was September 2016, the point at which you arrived in Australia on the same flight as Mr Kuan on your working holiday visas. Whether the start was in September 2016 or January 2017, however, is of little importance, because September 2016 is only nine months prior to the visa application date, not 12 months. The Tribunal has considered further whether you might have been in the relationship prior to the grant of the working holiday visas on 21 July 2016, and whether your relationship was such that it might have prompted your decision to work in Australia, but the Tribunal is mindful of the delegate’s statement that you were not declared as a de facto partner of Mr Kuan in the application for his working holiday visa and he was not declared in yours. In relation to whether you had a relationship of some kind prior to September 2016, the Tribunal is prepared to accept that you were in what you called a “boyfriend-girlfriend” situation over several years prior to September 2016, but finds this status is not sufficient to demonstrate that that you were in a de facto relationship for the relevant 12-month period. In your evidence you rely heavily on describing your commitment to one another post arrival in Australia, but to substantiate your relationship as it existed in Taiwan, you rely largely on photographs and family and friends’ statements and have little personally to say about it other than to say you lived together in the family home and briefly ran a business together, a matter examined in more detail below in these reasons.  You provide limited evidence about the nature and level of your commitment during that time; of the nature of the living arrangements you shared (except for your parents’ statement that you were a “young couple”), and while you say you “shared a bedroom” in the house, you provide scant evidence of any other indicator of a de facto relationship. Taking all the above into account, the Tribunal finds your claim to have been in a de facto relationship for up to eight years prior to the visa application is not made out and accordingly, affords it little weight.

7. With regard to your claim to have set up a business together in Taiwan, and to the significance of this in relation to your financial aspects, the Tribunal has examined the evidence you submitted at and after the hearing. The Tribunal is satisfied that you and Mr Kuan both served in the firm and that Mr Kuan was a director and you an employee supervisor. The Tribunal is prepared to accept that you set up the business together. The Tribunal is not satisfied, however, that this is evidence that you had joint financial arrangements of any significance. While you claim that you both contributed to the setting up of the business, the Tribunal notes you do not claim to have been a co-proprietor of the business. The Tribunal has taken into account Mr Kuan’s parents’ statement that you jointly founded a travel company, and has accepted that this refers to what you describe as an education agency.  Taking all into account, the Tribunal concludes that for the period of eight months in which the business was operating, your relationship there was of director and staff member and the existence of that arrangement is not convincingly, evidence that a de facto relationship existed prior to September 2016. The Tribunal finds the claim that the business is evidence of joint financial arrangements is of limited significance and affords it little weight.

8. Taking all the above into account, the Tribunal is satisfied that you were in a de facto relationship at a point on or after September 2016, when you arrived in Australia, but not satisfied that you were in a relationship for a period of at least12 months prior to the application for the initial visa, and finds you were not a member of the family unit on 14 July 2016, the time of the application for the initial visa, and that you therefore cannot satisfy the regulation.

9. Accordingly, the Tribunal is not satisfied that you meet cl.500.311.

10. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.