Chen (Migration)

[2022] AATA 3274

Chen (Migration) [2022] AATA 3274 (22 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Shu Qing Chen

VISA APPLICANT:  Mr Fengda Song

CASE NUMBER:  1826995

DIBP REFERENCE(S):  BCC2017/1305501

MEMBER:Meena Sripathy

DATE:22 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 22 July 2022 at 12:04pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – parties had not met in 2 years – not satisfied that the review and visa applicant have a commitment to each other consistent with a genuine and continuing relationship at the time of application or of this decision– decision under review affirmed

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

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 Immigration on 27 July 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 April 2017 on the basis of his relationship with his 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. 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.309.211 and cl.309.221 because the delegate was not satisfied on the evidence before the department that the visa applicant and sponsor were in a genuine spouse relationship at time of application or decision. The delegate placed weight on the fact that the parties had not met in 2 years. The delegate also appeared to have concerns as a result of the visa applicant’s migration history and his willingness to give false and misleading information in previous visa applications.

4. The sponsor applied for review of the decision to the Tribunal on 14 September 2018. 

5. On 18 March 2020 the review and visa applicant’s representative provided a submission and documents in support of the review.  A further submission and supporting documents were provided on 21 October 2021, following an invitation to provide information by the Tribunal.   

6. The review applicant appeared before the Tribunal in person on 26 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone and evidence from David Alexander, neighbour of the review applicant, in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review, although the representative was not present at the hearing. Following the hearing, the Tribunal was advised by the review applicant that they withdrew their authority for the representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has before it Department file BCC2017/1305501 which contains the following information. 

9. The visa applicant is male from Tianjin City, China born in 1964.  He is also known by another name, Song Yuqi. He has an adult daughter (born 1990), mother and two brothers in China.  He is sponsored by the review applicant, an Australian citizen, born in Vietnam in 1962.  She first arrived in Australia in 2000, as the holder of a Partner visa. She has a mother, two brothers and two sisters in China, three children (born 1987, 2002, 2004) and one sister in Australia.  The parties indicate they met in December 2012 in Australia  and married on 16 April 2013 in China. The visa applicant declared a previous marriage to Hong Zhang that ended by divorce in April 2003, and from which there was one child. The sponsor declared a previous marriage from 1986 to August 2005 to Thuong Van Duong which ended in divorce, and from which there were two children.

10. The following documents were provided in support of the application: translation and original of a statement setting out the “love story between Song Fengda and Chen Shuqing,” translation and original of a Chinese marriage certificate registering their marriage on 16 April 2013; various ID documents for the visa applicant and sponsor (including household register, national ID card, sponsor’s Australian passport and drivers licence); HSBC joint bank account statements for periods in 2013-2015; divorce documents; bundle of photos of the couple, including wedding photos; Form 888 Statutory Declaration of David Alexander, friend of the sponsor and visa applicant.

11. The delegate initially refused the application in a decision dated 12 June 2018, having considered the evidence and information before the Department.  Concerns were specifically made regarding the visa applicant’s adverse migration history, and the limited evidence of social aspects of the relationship and commitment to each other.

12. File notes indicate that this decision was set aside on 25 June 2018, despite being notified to the visa applicant, on the basis that the visa applicant was not afforded procedural fairness as an interview was scheduled but does not appear to have taken place. 

13. In a submission to the Department dated 26 July 2018, the visa applicant’s representative referred to the incorrect refusal decision of 12 June 2018 and delegate’s concerns and provided further submissions and supporting evidence.  The submission raised concerns that the delegate took into account irrelevant considerations relating to the visa applicant’s migration history in considering the issue of whether the visa applicant is the spouse of the sponsor.  Concerns were also raised in the submissions with the delegate’s comments about cultural norms of Chinese culture, and the applicant and sponsor’s failure to hold a wedding banquet in China, and failure to consider that they held a wedding reception in Australia. The submission went on to address the r.1.15A(3) matters and supporting evidence provided.

14. Departmental file notes indicate that interviews were subsequently held by telephone with the visa applicant and sponsor on 26 July 2018. Handwritten notes of the interviews are held on the file.   

15. A further decision was made on 27 July 2018 refusing the visa application, referring to the information obtained at the telephone interviews being taken into consideration.

16. Another decision record, dated 1 August 2018, is also contained on the Department file.  This decision record refers to information obtained at the telephone interviews and subsequent material, including existing documents and new material submitted to the Department by email following the interviews, being considered in the decision.  This likely is a reference to the representative’s submissions and supporting evidence provided on 26 July 2018.

    Evidence before the Tribunal

17. In a submission dated 18 March 2020, the review applicant provided a response to the delegate’s reasons for decision and the following further evidence:

    ·Money transfers to the sponsor in the amounts of $10,000 dated 2/8/2018, $6000 on 9/11/2018, $5000 on 24/6/2019

    ·Receipts of spending for sponsor’s travels in China

    ·Photos of visa applicant and sponsor’s family in China

    ·Evidence of mailing items to Australia for sponsor

    ·Joint bank account statement

18. On 21 October 2021, in response to a Tribunal invitation to provide updated evidence and information, the following documents were provided:

    ·Further submissions from the representative

    ·Statutory Declaration Form 888 by David Alexander dated 14 October 2021

    ·Statutory Declaration Form 888 by Cam Hong Lieu dated 19 October 2021

    ·Statement dated 14 October 2021 by review applicant (sponsor)

19. On 14 April 2022 the review applicant provided her Response to Hearing Form and attached the following further evidence:

    ·Joint bank account statement August – November 2021

    ·Untranslated marriage certificate document

    ·Letter from David Alexander stating his knowledge of the review and visa applicants as their former neighbour and friend, dated 2 February 2017

    Tribunal hearing 26 May 2022

20. At the hearing the Tribunal took evidence in person from the review applicant first, followed by the visa applicant over the telephone.  The Tribunal questioned the review applicant in some depth about her current circumstances, family and children, history of the relationship with the visa applicant and the circumstances of their physical separation and contact since then.  The Tribunal questioned the visa applicant about similar matters. Details of relevant evidence given by the parties is included in the discussion below.

21. On 27 May 2022 the Tribunal wrote to the applicant, pursuant to s359A, to invite comment or response to information which the Tribunal considers would be the reason or part of the reason for affirming the decision under review.  The letter provided particulars of various pieces of information provided by the visa application at hearing, explained its relevance to the review and the consequences of the Tribunal relying on the information in affirming the decision.  The Tribunal received a response from the applicant by email on 20 June 2022.  The Tribunal has considered the applicant’s comments in response, and this in included in the discussion below. 

    Whether the parties are in a spouse or de facto relationship

22. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

23. ‘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 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?

24. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. In this case, the evidence reveals the review and visa applicant registered their marriage in China on 16 April 2013.  A copy and translation of the marriage certificate has been provided. They were both previously married and divorced, and copies of their divorce documentation was also provided. Following the official registration of their marriage in China, they had a wedding celebration in a church in Australia in the presence of the review applicant’s family and friends.  Photos of this event has been provided. On the evidence, the Tribunal accepts 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?

25. As indicated above, in forming an opinion about whether two persons are in a married relationship, the regulations require that regard must be had to all of the circumstances of the relationship, including in particular matters set out in r.1.15A(3) relating to financial and social aspects and the nature of the household and their commitment to each other.  The Tribunal has considered these matters in the particular context of the present case, being that the review and visa applicant married in 2013 in China. Following this, the visa applicant travelled regularly to Australia on visitor visas between 2013 to 2016, staying for various periods ranging from several weeks to, on the last occasion, just under 12 months. He last departed Australia on 3 August 2016.  In January 2017 his then current visitor visa was cancelled and he has not returned to Australia since. The visa applicant lodged the present Partner visa application on 7 April 2017.

26. At the hearing the Tribunal asked both parties why the application was not lodged until 2017, given they married in 2013. In her response the review applicant said that she had asked him that herself on numerous occasions and he kept deferring the question.  She said she believed that he wanted to travel back and forth between China and Australia for reasons of his work in China and was concerned that if he had an application pending it would complicate this.  Then in 2017 something happened with his visa, and he was unable to travel back and then he lodged the application.  She was aware that his visa was cancelled because someone made a complaint about him regarding the use of a different name. He told her that he did have another name and changed it in China and just forgot to mention it but he never intended to mislead the Department.  In his evidence the visa applicant explained that his original plan was to continue working in China until his retirement so that he could get his pension entitlement there and then come and live here, but then his visa was cancelled and he decided to lodge the application. He told the Tribunal that in the periods he was in Australia between 2013 and 2016 he stayed with the review applicant and her children and helped her to care for them.  When questioned about how the period of almost 12 months stay in 2015-2016 fits with his claim that he was working towards retirement in China, he said he brought substantial funds in cash each time he came into Australia, declared at the airport, and he lived from his savings.  He found gaps in his duties in China to spend time with his family here.  

27. The Tribunal has considered their explanations and the evidence before it relating to the period from 2013 to 2016 when the visa applicant spent significant time in Australia. It has considered the evidence submitted with the application relating to that period, including the Statutory Declaration Forms 888 from the neighbour and friends, photos and bank statements. Having regard to the matters referred to in r.1.15A(3) in respect of this period, the Tribunal is satisfied they were living together and accepts the evidence of matters relevant to household and social aspects of the relationship may be consistent with a spouse relationship, though it is less convinced by the evidence of financial and commitment aspects of the relationship in this period, particularly taking into account the failure to commence a partner visa application in this period.  

28. However, the subject of this review is the visa application lodged in April 2017. Therefore the issue for the Tribunal’s consideration does not relate to the period 2013-2016, but rather whether the visa applicant was the spouse of the review applicant at time of application (7 April 2017) and continues to be the spouse of the review applicant at time of decision (current). 

29. The Tribunal has considered the evidence provided to the Department and Tribunal, their oral testimony at hearing and the r.1.15A(3) matters to be taken into consideration in the context of the relevant points in time for this application.  Below follows a discussion of the evidence before it under the headings of matters required to be taken into consideration in making the assessment of the relationship.

30. For reasons explained in the discussion below, the Tribunal concludes that the visa applicant was not the spouse of the review applicant at time of this visa application and is not her spouse at time of this decision. 

    Financial aspects of the relationship

31. The parties provided statements for a joint bank account they have held since 2013. The statements show little regular activity in terms of transactions for daily living. In her oral evidence to the Tribunal the review applicant told the Tribunal they opened this account originally on advice from someone that if the visa applicant eventually wanted to apply for a Partner visa it would help to have a joint account.  The Tribunal asked her to explain how they arranged their financial affairs given it appears they did not regularly use this account.  She said the visa applicant occasionally deposited some funds into the account and she withdrew it and used it. He also had a Bank of China account which she had access to for a period until she lost the card for it and the bank has refused to reissue the card unless the account holder requests it in person.  The review applicant told the Tribunal that she has a CBA personal account and receives her Centrelink income into that account.  She told the Tribunal she receives a pension from Centrelink, at the single rate though she has declared the visa applicant as her partner, not present in Australia. She told the Tribunal that apart from the deposits for which evidence has been provided, she and the visa applicant rely on their own resources for daily living.  She said he sometimes sends gifts of jewellery and clothing to her and her daughters.  When asked for more details she said she could not recall the last time he sent anything. 

32. The Tribunal notes the evidence submitted about three significant deposits by the visa applicant of $10,000, $5000 and $6000 in 2018 and 2019.  Accompanying statements provided from HSBC show that a significant sum from the first deposit (almost $5000) was paid towards fees for the migration agent, and the remainder of this money was withdrawn in amounts of $1000 cash. The Tribunal also notes these sums were deposited after the delegate’s refusal which had noted the absence of evidence of financial pooling of resources. 

33. Having considered the evidence before it relating to financial aspects of the relationship, the Tribunal finds that in the relevant periods under consideration, the parties have been, and are substantially self-supporting. It is not convinced the financial transfers that occurred following the delegate’s decision were for reasons other than in response to this issue raised in the delegate’s decision.  However, given the circumstances of the parties living in different countries, and their age and stage of life, the Tribunal does not place significant weight on the limited evidence of financial aspects of the relationship in its overall assessment of the relationship.

    Nature of the household

34. The review and visa applicants live in different countries and have no joint responsibility for children. The Tribunal takes this into account in its consideration of evidence relating to living arrangements or sharing of housework. In this context the Tribunal has considered the contact and time spent together since the visa applicant departed Australia in August 2016. 

35. Since that time, the review applicant travelled outside Australia on only one occasion from 19 to 28 December 2018.  The Tribunal asked her about this travel at the hearing. She gave evidence that her mother passed away and she was not present at the time of her death.  According to tradition, she had to return to her mother’s place within 100 days of her passing and so she travelled to Hainan for this reason.  She returned to her hometown in Haikou with her daughter, and her sister also returned with her.  When asked if the visa applicant visited her during this trip, she said he did not. When asked why not, she said their marriage was not approved by her mother so she did not think it was appropriate. Then she said that he did come to see her and her daughters but he stayed in a hotel because of her mother’s disapproval of him. In his evidence to the Tribunal, the visa applicant said that since his departure from Australia in 2016, he has seen the review applicant once in December 2018 in Haikou, her home town.   When asked why she was there, he said she likes it there because it is where she grew up.  When asked if there was any other reason she was there on that occasion he said no and that he does not recall as it was a long time ago. 

1. The Tribunal put the response of the visa applicant about this matter to the review applicant in its invitation to comment letter, explaining its concern that his lack of awareness of her mother’s death and the reason and purpose of her visit to Haikou in December 2018 may lead the Tribunal to have concerns about the extent they communicate with each other and draw emotional support and companionship and it may contribute to reasons the Tribunal is not satisfied the relationship between them is genuine and continuing.  In her response, the review applicant said that he was nervous and could not remember about her mother’s death and the reason they went to Haikou in December 2018. The Tribunal has considered this response, but it is not convinced that it reasonably explains the visa applicant’s lack of this knowledge.  The Tribunal considers the fact that they had not seen each other for two years and his lack of awareness about the reason she returned on this occasion are significant matters that suggest they are not in regular communication or sharing or drawing support from each other in a manner one would reasonably expect in a genuine and continuing relationship.  

2. The Tribunal also considers significant the following inconsistent responses given by the parties about each other’s current circumstances.  Firstly, the review applicant gave a different address for the visa applicant. In his evidence he stated the address provided in the visa application, which has been his address his 2005.   Regarding her family circumstances, the review applicant told the Tribunal her son, who lives separately, recently married and had a 6 month old baby.  She gave evidence that she and her daughters have a close relationship with the baby and she sometimes stays with them for the weekend. In his evidence, the visa applicant had no knowledge of her son’s new baby. The Tribunal considers this lack of knowledge by the review applicant of his address which has been a long term address, and the visa applicant’s ignorance of the new baby in the family which is clearly significant to the review applicant suggest they do not communicate as often or closely as claimed.  When put to her for comment, the review applicant responded that she had not shared this information about her son’s baby with him. She made no comment about the matter of the address.   

3. Having regard to the limited time they have spent together since the visa applicant’s departure in 2016, together with his ignorance about her mother’s death and reason for her visit in December 2018, and above inconsistencies in their evidence relating to each other’s current circumstances, the Tribunal is not satisfied the household aspects of the relationship in this case support the existence of a genuine relationship.

   Social aspects of the relationship

4. The parties have known each other since 2012 and have been married since April 2013.  As indicated above, much of the evidence submitted in support of the relationship relates to the period 2013 to 2016 when the visa applicant was in and out of Australia many times, and had spent a period of 11 months in 2015-2016 living with the review applicant.  The Tribunal notes the supporting statements from friends, neighbour David Alexander, and friend Cam Hong Lieu refer to personal observations of the couple when the visa applicant was in Australia in this period prior to 2016 and the Tribunal gives weight to that evidence.

5. However, neither of the declarants have personally seen the couple together in the period since he departed Australia in August 2016, and while their updated Statutory Declarations make reference to their opinion that the relationship is ongoing and continuing, the Tribunal places less weight on this given the limited evidence on which it is based.  Mr Alexander gave oral evidence at the hearing.  When asked what his opinion that they continue to be in a genuine and ongoing relationship is based on he said he visits the review applicant’s house often and has overheard them on the phone.  When asked how he knows who she is talking to and what they are discussing, he said they would be speaking in English.  The Tribunal has considered this evidence but gives it little weight, on the basis that it finds it highly unlikely that the review and visa applicant would be conversing in English about matters pertaining to their relationship.

6. The Tribunal acknowledges the review applicant’s evidence that she has declared her marital status with Centrelink, but continues to be paid the single rate on the basis that he is not present in Australia. It notes that she did not mention whether she has declared his overseas financial circumstances to Centrelink, or any transfers he has made for her.

7. On balance, the Tribunal accepts there is some evidence provided that the parties continue to represent themselves to other people as a married couple and their friends believe their relationship is ongoing. On the other hand, it finds that they have hardly spent any time physically together since the visa applicant departed Australia in August 2016.  The review applicant has travelled to China only once since then in 2018, for a family reason the visa applicant was unaware of.  The Tribunal finds the absence of joint social activity in a period over 5 years, even taking into account the restricted travel caused by COVID 19 from 2020-2022, to be highly significant and does not support the existence of an ongoing genuine relationship.

   Nature of persons' commitment to each other

8. The Tribunal acknowledges the parties have been married for over 9 years now and lived together in Australia for significant periods between 2013 and 2016.  However as indicated earlier, the Tribunal’s assessment in this application relates to the time this application was made and time of this decision.  They have not lived together at all in this period, acknowledging that they are in different countries and the visa applicant has no visa to come to Australia.  The Tribunal accepts the review applicant’s evidence that she had responsibilities to her daughters as well as her own health concerns that limited her ability to travel and visit the visa applicant.  However, even taking those explanations into account, the Tribunal finds the absence of visits in over 5 years to be significant and telling.   The Tribunal was also concerned about the inconsistent responses given by the  parties about why the review applicant would not consider living with him in China.  In her evidence the review applicant emphasised her health issues and concerns she has about costs and treatment available to her there, however the visa applicant made no mention of this when asked whether she would or could consider living with him there. In his response he stated it was only because of her children that she would not consider it.  The Tribunal finds the inconsistency in their responses to this issue significant, particularly given the passage of time that has passed.  It would be reasonable to expect they had discussed this in some depth and he would be familiar with her issues and concerns, and particularly her health concerns.  In her response to the s359A invitation, the review applicant re-stated that she would not return to China to live due to her health and children. 

9. The Tribunal is not satisfied, on the evidence before it, that the review and visa applicant have a commitment to each other consistent with a genuine and continuing relationship at the time of application or of this decision.  It is not satisfied the evidence supports that they have a degree of companionship and draw emotional support from each other; and it is not satisfied that they see the relationship as long-term.

10. For the reasons given above, the Tribunal is not satisfied that the review and visa applicants have a mutual commitment to shared life to the exclusion of others. It finds they are living separately and apart and are not in a genuine and continuing relationship.

11. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made or at the time of this decision.

12. Therefore the visa applicant does not meet cl.309.211 or cl.309.221.

13. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    decision

14. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Meena Sripathy
    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).