Chiang (Migration)

Chiang (Migration) [2021] AATA 3901 (8 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yi-Ting Chiang
CASE NUMBER:  1732524
DIBP REFERENCE(S):  CLF2013/179670
MEMBER:Kate Millar
DATE:8 July 2021
PLACE OF DECISION:  Adelaide
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; and
·r.2.03A

Statement made on 08 July 2021 at 12:01pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Federal Circuit Court remittal – genuine de facto relationship – financial aspects – nature of the household – social aspects – digitally altered photographs – nature of the commitment – allegations of relationship breakdown – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 376
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cl 801.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Ms Chiang is a citizen of Taiwan. She came to Australia on a working holiday visa in 2010 and met Ms Xioajun Wang in Melbourne. Ms Chiang states they formed a relationship and moved to Adelaide together in early 2011.
Ms Chiang applied for Partner (Temporary) (Class UK) and Partner (Resident (Class BS) visas on 18 July 2013. The temporary partner visa was granted on 11 March 2014 however after receiving information that the relationship had broken down, a delegate of the Minister for Home Affairs refused the application for a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
Ms Chiang applied for a review of the decision, and the Tribunal (differently constituted) affirmed the decision. Ms Chiang applied to the Federal Circuit Court, and the matter was remitted by consent for reconsideration because a certificate issued under s.376 of the Act had not been disclosed to Ms Chiang.
Ms Chiang appeared before the Tribunal on 18 March 2021 to give evidence and present arguments and was represented by her registered migration agent. The Tribunal also received oral evidence from Ms Xiaojun Wang, Ms Yu-Wei Lin, Ms Xioming Feng, Mr Will Soon Chew Wee, and Mr Joseph Girda. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
SECTION 376 CERTIFICATE
A certificate may be issued under s.376 of the Act in respect of any information or document if (in summary) the Minister certificates that the disclosure of any matter contained in the certificate or information would be contrary to the public interest that could form the basis for a claim by the Commonwealth in a judicial proceeding or was given to the Minister or the Department in confidence.
A valid certificate issued under s.376 of the Act allows the Tribunal to have regard to the information or document and may, after having regard to nay advice given by the Secretary about the significance of the information, disclose it to the applicant or any other person who has gen evidence to the Tribunal.
The Department file contained a certificate purportedly issued under s 376 of the Act. A valid certificate issued under s 376 of the Act the Tribunal may have regard to the document or information, and if thinks it appropriate after having regard to any advice given by the Secretary disclose any matter continued in the documents.
A copy of certificate was provided to Ms Chiang before the hearing to comment on the validity of the certificate. Ms Chiang’s representative provided submissions regarding the disclosure of the information or documents the subject of the certificate.
As the certificate is not signed by the delegate, it is not valid. In addition, that part of the certificate that relates to folios 247 – 155 does not disclose a public interest reason.
Part of the certificate covers an allegation the relationship between Ms Chiang and Ms Wang had broken down. The record states in response to “remain anonymous” the answer is “no”.
This information was disclosed to Ms Chiang by the delegate, as was subsequent contact with Ms Wang as recorded in the decision of the delegate.
CONSIDERATION OF CLAIMS AND EVIDENCE
Ms Chiang applied for the visa on 18 July 2013 on the basis of her relationship with Ms Wang. At that time, the Class BS visa 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), and Ms Ching must meet the primary criteria to be granted the visa.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 the delegate was not satisfied Ms Chiang was the de facto spouse of Ms Wang. It follows that the issue in this case is whether Ms Chiang and Ms Wang meet the legislative criteria for being de facto spouses at the time of this decision.
Whether the parties are in a spouse or de facto relationship
Clause 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. Ms Wang is an Australian permanent resident, and she was the sponsor at the time of the application.
Are the parties in a de facto relationship?
De facto partner' is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
In forming an opinion whether they are in a de facto relationship, consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3).
Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
By way of background, Ms Chiang arrived in Australia on 11 January 2010 as the holder of a working holiday visa. She met Ms Wang on 15 January 2010 when they were both in Melbourne and working at Bread Top.
Ms Chiang said they liked Adelaide and came here to visit. In the application, she said the de facto relationship commenced 11 November 2010, but could not recall at hearing whether anything specific happened and then thought this may be the day they chose to come and live in Adelaide.
Ms Chiang states they started living together in Melbourne from December and arrived in Adelaide in January or February 2011, with neither of them having a job. They stayed in short stay accommodation before they obtained a rental property.
She could not recall the location of the rental property, but they now rent at another location and have purchased a property in which they do not live. They share the house they rent with other people.
They opened a business called “Sweet Kitty” in Adelaide, which operated until 2014. This business was not successful and when it closed, they both worked day jobs in hospitality.
In the period 2014 – 2016 Ms Wang had a break and studied. Ms Chiang thought this was study to be a nurse or a carer but could not quite recall. Ms Wang finished the course and gained the license or qualification but did not work in that field. Ms Chiang could not recall where she went to do the course and said she did not know how much it cost, but thought it was a couple of thousand dollars.
Ms Chiang works as a chef and supports them financially, and Ms Wang works as a barista.
Financial aspects of the relationship
The financial aspects of the relationship include:
(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.
Ms Chiang and Ms Wang do not jointly own any major assets.
The parties claimed to own a house but did not initially provide any documentation or the mortgage. When asked at hearing, Ms Chiang said they purchased a property together, however it is solely in Ms Wang’s name as she is not an Australian resident and cannot get a loan, and if she did the interest rate would be too high.
After the hearing, information they provided an extract from the Revenue SA website stating that a foreign person who acquires an interest in residential land in South Australia are required to pay a foreign ownership surcharge of 7% of the value of their interest in the residential land. In examining the website, this applied from 1 January 2018.
The loan is solely in Ms Wang’s name and Ms Chiang said at hearing she transfers $1000 per month to pay for the mortgage. They provided a statement in which they said they leased the property to a friend and her parents and continued the lease they hold jointly at the property which they share with friends. They said they adopted this an a more economical lifestyle as Ms Wang’s employer did not continue operating over COVID and Ms Chiang’s hours were reduced. They state they plan to move to their house once the pandemic is contained.
Ms Wang provided bank statements which the parties state show she also contributes to the mortgage. However, the amounts she states show her contribution are equivalent to amounts Ms Chiang has deposited to that account (i.e. $1,000). Ms Chiang appears to transfer $2,240 per month to Ms Wang’s account, and the Tribunal is not satisfied that this shows Ms Wang contributes to the mortgage.
The Tribunal is satisfied they have a joint liability for the rent under a series of joint lease agreements with Mr Joseph Grida.
The parties jointly owned a business E & J Food Services Pty Ltd that operated as Sweet Kitty. An ASIC extract provided to the Department shows they were both office holders in E & J Food Services Pty Ltd, and both held shares in the company. They previously provided a business vehicle loan to E & J Food Services Pty Ltd naming them both as guarantors of the loan. They provided an Australian Taxation Office statement to the Trustee for the YT Chiang and XJ Wang self-managed super. They state the business ceased due to the pandemic and was a source of friction. The Tribunal considers the documents provided show the assumption of joint liabilities over the course of the relationship.
Ms Chiang said she transfers money to the joint account to meet their financial needs. Ms Wang arranges for payment of the household bills. They both transfer money to a joint account, but this is not a specified amount and Ms Chiang transfers more money than Ms Wang. The joint finances of Ms Chiang and Ms Wang were unclear at hearing, and remained obscure, as they failed to provide all of the bank statements requested prior to the hearing. Additional statements provided after the hearing did not include, as requested, the account to which Ms Chiang’s wages are paid. Ms Chiang appears to meet most their expenses.
Ms Chiang holds an American Express card in her sole name. Transactions appear on the account by Ting Song. The parties state they allow Ting Song to use the account so they accrue more points, and Ms Song repays the value of any transactions.
Their cars are owned solely, and they are not named as another driver on either car.
The Tribunal finds that they do not have joint assets but have had and continue to have joint liabilities. Ms Chiang pays for nearly all their expenses. While they submit there is some pooling of financial resources for the purchase of the property, the Tribunal is not satisfied this is the case as money reported to be Ms Wang’s contributions is equivalent to one of the monthly transfers to her account by Ms Chiang.
There is limited sharing of household expenses, as Ms Chiang pays nearly all their expenses.
Nature of the household
The nature of the household includes:
(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.
There are no children of the relationship.
The parties have provided information including utilities in Ms Wang’s name and mail delivered to Ms Chiang at this address which show they live at the same address and have done so since approximately 2011. They provided statements from their landlord Mr Grida, who also gave oral evidence that they have rented his property from 2011 to the current date. The Tribunal finds the utility bills, the lease, and the evidence of Mr Grida show they have lived in the same household for nearly 10 years.
Ms Chiang gave evidence that they share a bedroom. Ms Soon Chew Wee provided statutory declaration dated 1 April 2020 that they are lovers. Mr Wee also gave oral evidence to the Tribunal and said he has known Ms Chiang since 2011 when they were renting a corner at his restaurant selling coffee and drinks. Mr Wee said it is a same sex relationship and they are living in the same room. he said that they do not really expose the relationship because in their culture it is not accepted so they are quiet about it.
Mr Xiomeng Feng provided a statutory declaration dated 4 April 2020 stating (among other things) that they share a room. Mr Feng could not be contacted at the hearing.
Ms Yu-Wei Lin provided statutory declaration dated 5 September 2015 stating they live together in the same room. Ms Lin provided oral evidence in which she said she moved to Sydney in 2014 but returns to Adelaide approximately once a month. Ms Lin gave evidence Ms Chiang and Ms Wang share a bedroom.
On the basis of the evidence of the witnesses, the Tribunal finds Ms Chiang and Ms Wang live in the same house and share a bedroom and have done so for over 10 years.
Ms Chiang and Ms Wang have provided statutory declaration and gave oral evidence stating Ms Wang does the housework and Ms Chiang provides the food from the restaurant or does the cooking. Ms Wang arrangements payment of bills as she has better English. The Tribunal finds they share household tasks.
Social aspects of the relationship
The social aspects of the relationship include:
(i)whether the persons represent themselves to other people as being in a de facto relationship 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.
A concern previously raised with Ms Chiang was there was little evidence of them socialising with others as a couple. Ms Chiang provided photographs to the Tribunal purporting to show them in a variety of groups. These photographs appear to have been altered, with Mas Wang inserted into alt least three of these photographs, and Ms Chiang into at least one.
The Tribunal raised these concerns with Ms Chiang and invited her to comment on whether the images had been artificially inserted in these group photos, that Ms Wang’s image appears identical in the photographs, and there are differences in the angles and lighting on their images compared to the other people in the photographs. Ms Chiang was also provided the opportunity to provided further comments after the hearing.
Ms Chiang did not provide any comments at the hearing and was invited to provide any further comments or submissions on whether the photographs had been altered after the hearing. Ms Chiang obtained a copy of the recording of the hearing prior to providing further submissions. In a joint statement with Ms Wang provided after the hearing, Ms Chiang did not address this issue other than to state “we are a genuine couple living together and attending the social occasions together and taking photos with friends”.
The Tribunal finds that the photographs provided by Ms Chiang in support of the social aspects of the relationship and the time they spend with others are not genuine and have been digitally altered to make it appear they had been together with a group of people. The Tribunal is not satisfied that these photographs support that Ms Chiang and Ms Wang represent themselves to others as being in a de facto relationship.
Ms Chiang and Ms Wang could not name many of the people in the photographs. They could consistently name two people from these photographs and could consistently name one other person as the husband of one of these people. The Tribunal is satisfied they both know two of the people in the photographs.
Both Ms Chiang and Ms Wang said Ms Chiang is not very sociable and has few friends. Ms Wang named Ting Song as her closest friend. On being asked why Ms Song had not provided a statutory declaration in support of the relationship, Ms Wang said she “has already provided enough statutory declarations, but if you need I can ask for one”. After the hearing she submitted Ms Song had not previously provided a statutory declaration as she is not a permanent resident. This is not a reason a person cannot provide a statutory declaration.
Ms Song provided a statutory declaration after the hearing and declares Ms Wang told her about her partner Ms Chiang in 2012 and said at that time they had been together more than a year. Ms Song states she met Ms Chiang when she arrived in Australia and saw that Ms Wang and Ms Chiang are supportive and look after each other. She states they get together for different Chinese festivals and occasionally go on short trips on the weekend. Ms Song declares she can see their relationship is very stable and they rely on each other and in her opinion, it is a healthy and mature relationship between partners.
Ms Chiang could give details of Ms Wang’s family and named her parents. She said both her biological mother and stepmother met Ms Wang when they were in Taiwan 3 – 4 years ago, but they did not say they were in a relationship because they are a traditional family. her father only has one daughter and would not accept that she is in a same sex relationship. She introduced Ms Wang as a person who lives with in Australia, and they are very close.
Ms Chiang said Ms Wang is an only child. Ms Chang has met her parents on a video call, and Ms Wang calls her parents every week. Ms Wang’s parents are also not aware of the relationship.
At the previous Tribunal hearing Ms Chiang provided statutory declarations from Ming Chin Lee, Soon Chew Wee and Yutong Yang. Mr Soon Chew Wee provided a further statutory declaration prior to the hearing and also gave evidence to the Tribunal about the genuineness of the relationship, and that it is a same sex relationship.
With the original application, Ms Chiang a statutory declaration from Yu-Wei Lin dated 2 June 2013 who states she met Ms Chiang and Ms Wang in May 2012 at their café. She sates they became friends and she would visit their house, and also visits their business at least once a week. Ms Lin states they live in the same room, they attend social events together and pay for each other at these events and they have a plan for the future and have three rabbits which indicates their relationship will last. Ms Lin also provide a statutory declaration dated 5 September 2015 stating they live in the same room, they come together when they hang out, that they have plans for the future and have two rabbits which indicates their relationship will last, and they have been in a defacto relationship for a long time

Ms Qingqing Xia also provided a statutory declaration dated 2 July 2013 stating she became friends with June in 2008 when in Melbourne studying bakery and met Eva in 2010 when she was working with June at Bread Top. She said they became good friends and she knew they lived together. She states she visited them with her husband in 2011 and visited with her daughter in 2012. She states she stayed in the same house and they lived in the same room, and Eva pays for them both when they are out. June does the laundry.
The parties have provided statutory declarations form a number of people attesting to the relationship. Two people attend the hearing and gave evidence about the relationship. On the basis of the statutory declarations and the oral evidence of the witnesses, the Tribunal finds the relationship is viewed as a de facto relationship by others. Neither party had told their families about the relationship due to conservative family values.
The parties provided evidence of a trip together to Bali and a trip to Hong Kong and Taiwan. They have provided photographs of them together at various times and locations, generally in parks. The Tribunal is satisfied they undertake some joint social activities.
Nature of the persons commitment to each other
This includes:
(i)the duration of the relationship
(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.
Ms Ching and Ms Wang state they have been in a de facto relationship since November 2010, which is now a period of over 10 years. They state they have lived together since December 2010, also a period of over 10 years. They have provided mail going to the same address, a lease and their landlord provided evidence that they have lived at the same address, and the Tribunal accepts they have lived together for a lengthy period of time.
A significant component of the reasoning of why Ms Chiang’s visa was refused was the allegation that they had separated.
Ms Wang provided a statutory declaration to the Department dated 9 December 2015 stating the had a big argument one night and Ms Chiang left the house and did not return that night. Ms Wang states in retribution she wrote a letter to the Department which she later regretted but did not tell Ms Chiang she had written the letter. When nothing happened, she thought maybe the Department did not receive the letter or would ignore it. On 13 November 2015 they received the letter stating the relationship had broken down. In a subsequent telephone conversation, she advised they had never broken up, it was just an argument. As the parties have continued to live in the same household and provided evidence from witnesses that they continue to share a bedroom, the Tribunal accepts Ms Wang’s account that they had an argument but did not separate and reconciled shortly after the argument.
Ms Chiang and Ms Wang were also asked about why Ms Wang did not put Ms Chiang as her emergency contact on incoming and outgoing passenger cards. Ms Chiang said because her English is not very good, and she cannot answer her phone when she is at work, Ms Wang does name her as an emergency contact. Ms Chiang named Ms Wang as he emergency contact in 2013, but then named ‘Alice’ in 2014. Ms Chiang said Alice was put on the card on one occasion when she asked someone to help her fill in the card. She said “Alice” is her sister Alice, but not her biological sister.
The parties state they provide each other with companionship and emotional support but provided little detail. They state they see the relationship as long term, and it is now over 10 years since they state the relationship commenced.
The Tribunal finds the parties have been in a long term relationship and have lived together for over 10 years. They gave evidence that they provided each other with companionship and emotional support and have long term plans.
Whether the parties are related by family.
There is nothing to indicate the parties are related by family.
CONCLUSION ON DEFACTO RELATIONSHIP
There are aspects of this matter that attract some caution. The finances of the parties are not intermingled to a large extent with Ms Chiang paying most expenses. The Tribunal has found they have provided photographs that have been altered. The adverse impression this gave of their relationship was compounded by Ms Chiang giving diffident evidence at times, saying she did not know where Ms Wang studies, how much this cost, and they don’t spend much time with her friends. It was difficult to tell whether this diffidence was to do with the relationship or part of Ms Chiang’s personality.
However, there is considerable evidence before the Tribunal they have lived together for over 10 years, and they provided statutory declarations from others and provided witnesses that gave oral evidence that they share a bedroom and are in a same sex relationship. They share household tasks and while Ms Chiang provides most of the money, Ms Wang arranges payment of bills and hold those in her name. There have been joint liabilities for a business and they have been joint guarantors for a car loan.
Having weighed these factors, the Tribunal considers they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and they live together. The Tribunal had further found that they are not related by family.
the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of this decision. Therefore, Ms Chiang meets cl.801.221(2)(c).
Are the additional criteria for a de facto relationship met?
People claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. As it applies in his case, the applicant and the sponsor must be over 18 and the parties must either have been in a de factor relationship for a period of 12 months immediately before the date of the application.
In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
The application was made on 18 July 2013. The Tribunal is satisfied have lived together at the same address from February 2011 and were in a de facto relationship from at least this time.
It follows that the Tribunal is satisfied that Ms Chiang meets the additional criteria prescribed in r.2.03A.
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 801 visa.
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; and
·r.2.03A.
Kate Millar
Senior Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).

[2021] AATA 3901

8 July 2021

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