Cheng (Migration)

[2023] AATA 740

Cheng (Migration) [2023] AATA 740 (6 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chun Kit Cheng

REPRESENTATIVE:  Mr Zi Yue Han (MARN: 0635512)

CASE NUMBER:  1837066

HOME AFFAIRS REFERENCE(S):          BCC2017/413163

MEMBER:Cheryl Cartwright

DATE:6 January 2023

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)(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 06 January 2023 at 11:52am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – validly married two weeks before application made, now 5 years – documentary evidence and supporting statements provided – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 360(2)(a)
Migration Regulation 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221

CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 February 2017 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 the delegate was not satisfied that the evidence provided demonstrated that the applicant and the sponsor were in a genuine and ongoing spousal relationship as defined in Section 5F of the Act.

4. On 18 December 2018, the applicant applied to the Tribunal for review of the refusal decision.

5. Prior to the hearing, which was scheduled for 6 February 2023, the applicant submitted further evidence, including financial statements, family and social photographs, utilities invoices and travel documents. Upon receipt of the further evidence, the Tribunal considered that a hearing was no longer required and cancelled the in-person hearing that had been scheduled.

6. Pursuant to s 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour based on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether, at the time of application on 1 February 2017, the applicant and the sponsor were spouses for the purposes of the Act.

9. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

   Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

10. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

11. In the circumstances of this case the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.

    Background

12. The parties met in November 2015 when the applicant was working in Geelong and the sponsor living in Melbourne and began dating soon after.

13. The parties were married on 18 January 2017 in Australia and planned a “celebratory” marriage in Las Vegas as part of a visit to the United States with the sponsor’s parents to visit family. The parties renewed their vows at a small ceremony in Las Vegas on 19 September 2019.

14. The parties have travelled together to a range of destinations in Australia and the applicant helps the sponsor to care for her elderly parents.

15. After renting for several years, the parties invested in an apartment in Maidstone, Victoria.

    Whether the parties are in a spouse or de facto relationship

16. 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 citizen. A copy of the sponsor’s passport is on the Department’s file.

17. ‘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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

19. In the primary decision, the delegate referred to the parties’ “Certificate of Marriage”; however, the copy of the Department’s file provided to the Tribunal no longer contains the marriage certificate. The date of the marriage is mentioned in various statements to the Department and to the Tribunal, and the Tribunal is satisfied that the parties were married in Australia on 18 January 2017.

20. The parties renewed their vows in Las Vegas, California, on 19 September 2019. Again, no official marriage certificate was provided to the Tribunal, but the Tribunal is satisfied that the numerous photographs of the wedding and the extended tour of the United States with the sponsor’s family provide evidence of the commitment to the vows undertaken in January 2017.

21. 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?

22. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.

23. In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file.

    The financial aspects of the relationship

24. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

25. There is no evidence before the Tribunal that, at the time of application and at the time of this decision, one person in the relationship owes any legal obligation in respect of the other.

26. The parties provided a series of bank statements demonstrating they pool financial resources, share household expenses and responsibility for liabilities. While ownership of their apartment at [Address], is in the sponsor’s name, documents provided demonstrate shared financial responsibility for the costs associated with the home. Photographs provided also show shared contribution to home improvements in the apartment.

27. The Tribunal notes the information provided to the Department at the time of application and the further documentation submitted to the Tribunal since the delegate’s decision on 17 December 2018 and gives some weight to this documentation. The Tribunal is satisfied that, at the time of application and at the time of this decision, the parties pool financial resources and share financial responsibilities for their household.

    The nature of the household

28. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

29. There is no evidence before the Tribunal that the parties have any children together.

30. The parties provided evidence of sharing rental accommodation from August 2016 until August 2020, and living in their own home after that date.

31. The parties currently work shifts for Western Health at the same local hospital and provided a statement describing the sharing of housework around the shiftwork.

32. The parties provided copies of utilities invoices addressed to individual names, the gas utilities invoices to the applicant and the electricity utilities invoices to the sponsor at [Address].

33. The Tribunal notes the evidence of shared household arrangements both at the time of application and at the time of this decision and gives it some weight.

    The social aspects of the relationship  

34. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

35. The Tribunal has received numerous dated and labelled photographs of the parties socialising with groups of people, mainly with family but also with friends, and evidence of many trips within Australia as well as a visit to, and travel around, the United States in 2019.

36. The parties provided a statutory declaration dated 17 April 2019 from Thi Xuan Thuong Vo, who states that she has been friends with the sponsor since before the relationship with the applicant. Ms Vo states that she works at the same hospital as the parties and has observed the applicant bringing home-cooked dinners to hospital for them to share. Ms Vo also described the parties’ attendance at and participation in weddings of mutual friends. The statutory declaration provided by Ms Vo describes the parties’ social activities in detail and the Tribunal places great weight on this statement.

37. The parties provided a statutory declaration dated 26 November 2019 from Ms Kit Ying Wong, who states that she met the sponsor at work and the parties circulate in a group of friends of which Ms Wong is a participant. Ms Wong states that she and her now-husband shared a house with the parties earlier in their relationship and have remained in touch on a regular basis. The parties were bridesmaid and groomsman at Ms Wong’s wedding. The Tribunal places some weight on Ms Wong’s statutory declaration.

38. The Tribunal notes the evidence of social activities and from friends and acquaintances provided to the Department at the time of application and the further evidence provided to the Tribunal and is satisfied that, at the time of application and at the time of this decision, the parties presented and present themselves to friends and family as being in a genuine spousal relationship.

    The nature of the persons’ commitment to each other

39. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

40. The parties have provided statements and documentation to the Department and further statements and documentation to the Tribunal, in which they describe living together since August 2016.

41. In a statement dated 8 November 2022, the applicant describes his commitment to the sponsor’s elderly parents. This commitment was demonstrated in the parties’ decision to take the sponsor’s parents to the United States in 2019 to fulfil a long-term wish of the sponsor’s father to see his brother living there, as well as providing an opportunity for the sponsor’s parents to witness the renewal of the parties’ wedding vows in Las Vegas.

42. In his statement the applicant also states that, as both are health workers, the parties need to take great care to protect the sponsor’s elderly parents from contracting COVID.

43. In the statutory declaration by Ms Wong mentioned above, Ms Wong states that the applicant cared for the sponsor when she was unwell.

44. In the numerous photographs mentioned above, the parties are shown visiting a range of tourist destinations in Australia, as well as undertaking improvements to their current residence. The photographs span the term of the relationship from 2016 to 2022.

45. The Tribunal notes the lack of evidence of meaningful commitment provided to the Department and gives little weight to this lack of evidence.

46. The Tribunal notes that, at the time of application, the parties were married for approximately two weeks, and at the time of this decision they have been married for almost five years. The Tribunal gives some weight to this length of time.

47. The Tribunal notes the statutory declarations mentioned above by Ms Vo and Ms Wong and the statements that the parties are in a loving and respectful relationship and gives great weight to these statements.

48. The Tribunal places great weight on the evidence of the nature of the persons’ commitment to each other. In the Tribunal’s view, this evidence is strongly suggestive that the parties have a mutual commitment to a shared life to the exclusion of all others, they have a genuine and continuing relationship and they live together, not separately and apart on a permanent basis.

49. The Tribunal is satisfied that at the time of application and at the time of this decision the parties were and are in a committed spousal relationship.

    Conclusion

50. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.

51. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 1 February 2017 and at the time of this decision, the applicant and the sponsor:

    ·had and have a mutual commitment to a shared life as wife and husband to the exclusion of all others, as required by s 5F(2)(b) of the Act;

    ·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·lived and live together as much as possible as required by s 5F(2)(d)(i) of the Act.

52. Given these findings, the Tribunal is satisfied that, at the time the visa application was made and at the time of this decision, the parties were and are in a spousal relationship. Therefore, the visa applicant meets cls 820.211(2)(a) and 820.221.

53. 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

54. 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)(a) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    Cheryl Cartwright
    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).