Feng (Migration)

[2019] AATA 2681

Feng (Migration) [2019] AATA 2681 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuxian Feng

CASE NUMBER:  1723386

HOME AFFAIRS REFERENCE(S):           BCC2015/3235822

MEMBER:Kate Millar

DATE:24 May 2019

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations; and

·cl.820.221 of Schedule 2 to the Regulations. 

Statement made on 24 May 2019 at 2:20pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – overall consistent evidence – sponsor’s son’s evidence – initial scepticism – improvement in sponsor’s attitude and lifestyle – undertook religious activities and volunteer work together – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Ms Feng was invited to come to Australia by a friend in February 2015, and met Mr Penghui Chen at a dinner at her friend’s house.  She returned to China, and then invited Mr Chen to visit her for two months.  On 1 July 2015, she says he asked her to marry him and they married in Australia on 2 November 2015. 

2. Ms Feng applied for a Partner (Temporary) (Class UK) visa on 4 November 2015.  Her application was refused by a delegate of the Minister for Home Affairs because the delegate as not satisfied that Ms Feng was the spouse of Mr Chen as defined by the Migration Act 1958 (the Act) and Migration Regulations 1994. Ms Feng has applied to the Tribunal for a review of that decision.

3. Ms Feng appeared before the Tribunal on 22 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chen and his son Dun Huang Chen. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  Ms Feng was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. At the time Ms Feng applied for the visa 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 Regulations, and Ms Feng must meet the primary criteria to be granted the visa.

6. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl.820.221, which require her (among other things) to be the spouse of Mr Chen as defined in the Act and the regulations. 

7. It follows that in issue is whether at the time of application and the time of this decision, Ms Feng was and is the spouse of Mr Chen.    

   Whether the parties are in a spouse or de facto relationship

8. Clauses 820.211820.211(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. Mr Chen is an Australian citizen.

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:

   ·     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).

10. 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 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?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties married at the Births, Deaths and Marriages Registration office in Adelaide on 2 November 2015.  Mr Chen previous wife is deceased and Ms Feng is divorced. 

12. The Tribunal finds 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?

13. The Regulations set out at 1.15A(3) contains matter to be considered in forming a view about whether the definition of spouse in s.5F is met.  The Tribunal considered each of these in turn.  

    Financial aspects of the relationship

14. The financial aspects of the relationship include the joint ownership of assets, joint liabilities, extent of pooling of financial resources, any legal obligations owed to the other party and any sharing of day-to-day household expenses.

15. Mr Chen owns the house in which they live, and there is no mortgage on this house.  He also owns a car.  There is no evidence of legal obligations owed to the other party.  It follows there are no joint assets or liabilities.  The rei nothing before me that would show they owe legal obligations to the other party.

16. The parties provided consistent evidence on how they arrange their finances.  Ms Feng receives payments of approximately 2,260RMB per month (approximately $465AUD), and her daughter transfers money to her from China every three to four months.  When her daughter does not transfer money, she uses money she earns in Australia.  Mr Chen receives Centrelink payments, which Ms Feng described as superannuation.  They provided consistent evidence about the amount of each other’s income. 

17. They each deposit money from their personal accounts to a joint account.  They pay bills from the joint account.  Ms Feng said they pay utility bills at a shop in the shopping centre in Kilburn.  This was consistent with Mr Chen’s evidence that they pay bills at the post office. The parties have held joint account from 10 March 2015.

18. The Tribunal finds that while the parties do not have joint assets or liabilities, or owe legal obligation to each other, they do pool financial resources and share day-to-day expenses. 

    Nature of the household

19. The nature of the household includes any joint responsibility for care and support of children, the parties' living arrangements, and any sharing of housework.

20. The parties provide photographs with each other’s children and grand-child.  Both parties have adult children, and the joint responsibility for the care and support of children does not arise. 

21. The parties live together in a house owned by Mr Chen, and provide a petition in support of the application from neighbours. The Tribunal is satisfied they lived together at the time of the visa application and continue to do so at the time of this decision. 

22. Ms Feng said she does most of the house-keeping such as cooking and cleaning, and the Tribunal finds that she does the majority of household tasks for both of them. 

    Social aspects of the relationship

23. The social aspects of the relationship include 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.

24. Ms Feng provided list of names and signatures from neighbours stating they “signed below to approve them as their neighbours who live together as a married couple”.  They provided a number of photographs of them as a couple with others at various events. 

25. Ms Feng also provided a declaration Mr Chen’s son Dun Huang Chen, who also gave oral evidence.  Mr Dun Huang Chen said that he first met Ms Feng around the time she and his father planned to marry.  He said the marriage was a surprise to the family.  He said after his mother died he lost contact with his father. 

26. Mr Dun Huang Chen said he was initially sceptical about the relationship but could see an improvement to Mr Chen’s attitude and lifestyle.  He said the house is now clean and there is food in the fridge.  Mr Dun Huang Chen said his father has a gambling problem.  He has not met Ms Feng’s daughter and his brother has not met Ms Feng.  He has changed his view of the relationship over time as his father is happier and he has less stress because Ms Feng is caring for his father. 

27. The Tribunal found Mr Dun Huang’s evidence particularly convincing, as he did not seek to hide his initial scepticism of the relationship, and he has had an opportunity to observe the relationship over what is now a considerable period of time. 

28. A statement was provided from Ms Wei Wang who employs Ms Feng to help cook and look after her children in evening. Ms Wang states Ms Feng works at her house until about 7.30 and is picked up by Mr Chen when she finishes work.  The parties also provided statutory declarations form a friend from church and their general practitioner who said they normally attend appointments together as a couple.   

29. A further statesman’s was provided statements from Mr Genarth Krasnov, the President of the Xinjang Association at which they both volunteer.  Ms Feng described this volunteer work as cleaning up after functions and Mr Chen assists her with the volunteer work or comes to pick her up.  She said the last functions at which they volunteered was in December at a party held by the Uigher Association.   Mr Chen did not recall this event. 

30. Ms Feng said they also attend church activities together generally with friend, for example the Moon Festival.  They last attended a father’s day celebration, which Mr Chen could also not recall.  

31. Ms Feng’s daughter, Ms Xiyue Feng, provided a statement in support of the application.  Ms Feng said her daughter had visited her in Australia for Chinese New Year in 2016 with her husband, but their daughter remained in China.

32. The Tribunal is satisfied the parties represent themselves to others in the community including their neighbours and their general practitioner as a couple, and their immediate family recognise their marriage.  While the Tribunal had some concerns about Mr Chen not recalling some events, on balance and on the basis of the photographs of them together at social events with friends, it is satisfied they plan and undertake social activities, although this is generally initiated by Ms Feng. 

    Nature of the commitment to each other

33. The nature of the persons' commitment to each other includes the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

34. The parties have been in a relationship since at least 2015 and lived together prior to their marriage while in China and for a short period in Australia.  They have lived together since their marriage, with the exception of a period of approximately 6 weeks when Ms Feng was in China.  At the time of the application they had not lived together for a lengthy period, but by the time of this decision this is now approaching four years. 

35. The parties provide a consistent description of the type of work each performed prior to his retirement, which shows a level of communication.

36. The parties provided consistent evidence on the inception of the relationship and that Mr Chen travelled to China and spent two months living with Ms Feng at her house.  Ms Feng said she returned to China in once 2016 for two and a half months for treatment of her shoulder as she had inflammation in her shoulders and feet and retuned for acupuncture.  Mr Chen said she had never had problems with her shoulder.  

37. Ms Feng said Mr Chen suffers from diabetes and depression and that he has been much better since he met her.  Ms Feng and Mr Chen provided consistent evidence that he takes medication for diabetes and hepatitis B.

38. Ms Feng said during the evidence that they share the same interests and values in life, and shares the same religion.  She said she had started going to church since arriving in Australia, and Mr Chen drives her to church. 

39. Mr Linus Peng Yuen Li, the pastor of the Austral-Asian Chinese Church provided a statement in support of the relationship, stating that Ms Feng attends church and introduced him to Ms Chen.  The pastor states Mr Chen waits outside patiently for Ms Feng during the church services. 

40. On being asked why she said they shared the same religion if Mr Chen waits outside while she attends church, Ms Feng said before she came to Australia Mr Chen did not believe in religion and was Buddhist.  When she started going to church he would only attend church activities. She then said he did not attend church with her.  Ms Feng said he now attends the New Life Church and Mr Chen goes to church with her, but when she attended the Australian Chinese Church he did not attend.  Mr Chen said he attends the New Life Church, but has little belief in the Christian faith.  He said he went to both the New Life Church and the Australian Asian Church. 

41. Ms Feng was asked if Mr Chen has a problem with gambling.  She said he occasionally plays on the machines, but does not have a problem, and has not had a gambling problem in the past.  His son gave evidence that he does have a gambling problem.  In the circumstances of this case, the Tribunal considers this may be an issue a person may be reluctant to discuss in a public forum and was not unduly troubled by this inconsistency. 

42. Ms Feng said their long term plans were to have a small business when her English improves.  Mr Chen said he had no plans to start a business, and did not want to start a business.  He said his plans were to travel.   

43. Ms Feng said she planned to return to China for three months this year, but had not yet told Mr Chen this was her plan.  She said she is working and has to find a replacement before she can go.  She said she had not yet discussed this with Mr Chen because it was merely a plan and she would have to wait for a replacement for work and tell he employer first.

44. Ms Feng said they provide each other companionship and have provided photographs of times they are out together. 

45. The Tribunal was concerned about the inconsistency in the evidence of Ms Feng and Mr Chen about Ms Feng’s shoulder problems, their future plans, the last time they had undertaken volunteer work, and that Ms Feng has not discussed her plans to return to China with Mr Chen, overall they provided consistent evidence about Mr Chen’s health and their religious activities. However, they did provide consistent evidence about their religious activities and the volunteer work, albeit with inconsistency as to when this last occurred.   They provide consistent evidence about Mr Chen’s health including details about the medication he takes. Mr Chen’s son states he has seen his father’s mental state or attitude improve since the commencement of his relationship with Ms Feng.  On balance, the Tribunal accepts they provide each other with companionship and emotional support and see the relationship as long term. 

    CONCLUSION

46. Having considered the factors in r.1.15A(3), the Tribunal is satisfied that at the time of the application  and the time this decision, the parties have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and they live together.   

47. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was Choose one option and delete the other:

48. Therefore the applicant meets cl.820.211(2)(a). 

49. There is nothing before the Tribunal to suggest that Mr Chen cannot sponsor Ms Feng, and she held a substantive visa at the time of her application.  The Tribunal finds she meets cl.820.211.  AS she continues to do so at the time of this decision, she meets cl.820.221. 

50. 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

51. 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 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 of the Regulations.

    Kate Millar
    Senior 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).