Chen (Migration)

[2024] AATA 2823

Chen (Migration) [2024] AATA 2823 (31 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peng Chen

REPRESENTATIVE:  Ms Baoyan Zhang (MARN: 0530432)

CASE NUMBER:  1935918

HOME AFFAIRS REFERENCE(S): BCC2018/2462436 BCC2019/6968084

MEMBER:Anne Grant

DATE:31 July 2024

PLACE OF DECISION:  Melbourne

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) of Schedule 2 to the Regulations.

Statement made on 31 July 2024 at 11:01am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint bank account – home purchase and renovation – child of the relationship – social recognition of the relationship – strong emotional support – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

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 (Cth) (the Act).

2. The applicant applied for the visa on 1 July 2018 on the basis of his relationship with his 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 (Cth) (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 they were not satisfied that the applicant and sponsor were in a genuine and committed relationship at the time of application.    

4. The applicant appeared before the Tribunal on 24 July 2024 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.

5. The applicant was represented in relation to the review, and the representative attended the hearing.

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 visa applicant and sponsor were spouses at the time of application, and if so, whether they are spouses at the time of making this decision.  

   Whether the parties are in a spouse or de facto relationship

8. 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 permanent resident. 

9. ‘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 parties’ 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties have provided a marriage certificate demonstrating that they married at the Office of Births Deaths and Marriages in New South Wales on 28 June 2018. Neither was previously married or in a registered relationship. 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 other requirements for a spouse relationship met?

11. The parties had provided extensive information and evidence to the Department and to the Tribunal prior to the hearing date.  That evidence included copies of financial documents, household bills, insurance and banking documents, supporting witness statements, their son’s birth certificate, chat and phone records demonstrating frequent and constant interaction over several years, photographs depicting them together and with friends at many different places and occasions over several years, information about a property purchased in 2024 and relationship statements from the parties themselves.

12. It is not proposed to list the documents and evidence individually here, in the interests of clarity, but where relevant and probative, I have referred to the information provided below in discussing and making findings related to each of the various aspects of the relationship.

13. The parties knew each other prior to coming to Australia as students.  They shared a house as housemates and friends in Australia prior to becoming a couple.  The information before me reflects that the sponsor had a boyfriend for some of that period, and that relationship ended in early 2018.  At hearing, the sponsor gave evidence that they had been friends for many years and when her relationship ended with her previous boyfriend, the visa applicant gave her a lot of emotional support and encouragement, helping her to move out of that dysfunctional relationship.  Because they knew each other so well, they realised that they had feelings for each other quickly and moved easily into their relationship.  The visa applicant was at pains to point out that they did not ‘get together’ until some time after the sponsor’s earlier relationship had ended, but they knew each other well so there was no reason to delay.  They went back to China to tell their parents and became engaged.  Their parents were very happy about the relationship.

14. I accept the parties’ evidence about the development of their relationship, and that it grew out of a strong foundation as friends, relatively quickly after the sponsor was free from her previous relationship.   I turn now to considering each of the various aspects of the relationship.

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

15. Like the delegate, I had noted that there was limited evidence related to the ownership and payment of major assets and liabilities – principally, the home in which the parties lived and the mortgage over that home. Additional evidence about these matters has now been provided.  Bank statements from the ANZ demonstrate that the parties have had a joint bank account since 2018 and that the parties both contribute to that account – the visa applicant via his salary and the sponsor by irregular deposits and transfers in due to her business income fluctuations. The joint bank account is used for bills, ordinary household expenses and also for some transactions which might relate to the sponsor’s pet (Cat breeding) business – eg, vet bills and pet food.   

16. At hearing, the visa applicant gave evidence that he lived with the sponsor in the home she already owned (‘Mary Street’) prior to and after they became engaged and later married.  Once they became a couple, they opened a joint account and put their money together.  The sponsor manages the finances, and the visa applicant gave evidence that his main ‘financial responsibility’ was to put his pay into the joint account, from where the sponsor organised all the bills and expenses.  He was aware that the home had a mortgage, and thought that it was around $800,000 when they became a couple, but was not sure.  Because that was her home, although he started contributing to all of the costs and expenses, (and of course to the mortgage as one of those expenses) he didn’t concern himself with exact balances.  However when they bought the new home, and now that they are renovating it, he has been involved and has contributed to the choice, the cost and also is managing the renovation.  His father sent him $100,000 which went immediately towards the purchase cost.  The house is jointly theirs, even though he is not on the title because of his status as a foreign resident and the extra taxes that would have to be paid. 

17. The sponsor confirmed that she had owned the first home (Mary Street) with assistance from her family.  In fact, she has always used an offset account and although the mortgage was ‘officially’ still $900,000 at the time the property was sold, they actually had almost exactly that amount in the offset account.  They therefore had a substantial amount to pay down on their new property and again use an offset account which will be used to pay for renovations.  Mary Street sold for 1.77 million.  In May this year they settled on the new property, which they purchased for 2.56 million and have a mortgage of 1.2 million.  They are currently living in a rental while the renovations on their new  property are completed. The sponsor confirmed that although the home is again in her sole name, she considers it to be a joint asset.  They will look at transferring it into joint names if (or when) the visa applicant is granted residency.  The parties also noted that they have contracted to buy an investment apartment under construction, which is due to settle in 2025.   The idea is that this property will be used by their parents when they visit Australia. They hope that by the time of settlement, the visa applicant will be able to be added to the contract and title as an Australian resident.

18. I am satisfied that the visa applicant and sponsor pool their financial resources, and have done since they moved from being friends to being an engaged couple.  Even though the sponsor was in a stronger financial position at the time their relationship commenced, I am satisfied that the parties jointly share all current expenses and housing costs, that they consider the assets of each other to be shared matrimonial assets, and that they are both committed to meeting their liabilities jointly, regardless of the fact that they may be in the sponsor’s sole name due to her residence status and to avoid additional taxes.  Consideration of the financial aspects of the relationship strongly suggests that the visa applicant and sponsor are in a genuine and continuing relationship. 

    Nature of the household – including any joint responsibility for the care and support of children; parties' living arrangements; and any sharing of housework.

19. The parties now have a son, born in 2020.  The information provided and the evidence before me reflects that they share the care of the child, with the visa applicant having a primary role based on their parenting approach which suggests that the father should have the lead role in providing care for sons, and the mother for daughters. The sponsor does most of the cooking, whilst the visa applicant undertakes cleaning and laundry tasks.  The sponsor runs her cattery business from the family home.  I accept that the parties have lived together since they married in 2018.  Consideration of the nature of the household reflects that the visa applicant and sponsor share joint responsibility for the care and support of their son, that they live together and share household responsibilities and chores in an unremarkable manner. The parties living arrangements suggest that the parties are in an ongoing spousal relationship and have been since they married shortly prior to the application for the visa.

    Social aspects of the relationship – including whether parties represent themselves to other people as being married to 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.

20. The parties have provided extensive evidence of their recognition and presentation as a couple.  They have provided photographs depicting them at events, functions, and in everyday occasions, at their son’s birth, at weddings, on holiday interstate and overseas.  They have provided supporting witness statements from friends who know them well and who describe their relationship as genuine.  One witness provides some insight into how their friendship developed from close friends into a loving relationship, and others reflect on their parenting and their healthy relationship. 

21. In this case, I accept the evidence related to the social aspects of the relationship and am satisfied that the visa applicant and sponsor have presented as a couple since they became engaged, and that they are considered to be a married couple by friends and family.  I am also satisfied that they represent themselves to any acquaintances, official organisations and health fund as spouses. 

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

22. The parties have been married now since June 2018, which is more than six years.  They have a child together, have recently purchased a new home and an investment property together, and are shortly travelling to China to visit their families.  On the basis of the information and evidence they have provided, I am satisfied that the visa applicant and sponsor provide each other with companionship and strong emotional support.  I accept that they both see the relationship as long term.  I accept that the parties are mutually committed to each other and to their marriage.

23. I refer to my consideration of each of the factors discussed above.  I consider that the evidence and information before me is of sufficient weight to satisfy me that the visa applicant and sponsor are married to each other under a marriage that is valid, and that they are and were at the time of application mutually committed to a shared life as a married couple to the exclusion of all others, that they live together, and that theirs is (and was at the time of application) a genuine and continuing relationship. 

24. On the basis of the above, I am satisfied that the requirements of s 5F(2) are met at both the time of the visa application and at the time of this decision.  The visa applicant was the spouse of the sponsor, an Australian permanent resident at the time of application.  The applicant meets cl 820.211(2)(a). 

25. The visa applicant is sponsored by his spouse, who was over the age of 18 at the time of application.  The visa applicant meets cl 820.211(2)(c). 

26. At the time of application, the visa applicant held a subclass 600 visitor visa.  This is a substantive visa and therefore subparagraph 820.211(d) has no application in this case.   Therefore the applicant meets cl 820.211(2) at the time of application for the visa. 

27. I am satisfied that the visa applicant continues to satisfy cl 820.211(2) at the time of making this decision.  The visa applicant therefore satisfies cl 820.221(1)(a).

28. 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 820 visa.

    DECISION

29. 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

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

    Anne Grant
    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).