Feng (Migration)

[2018] AATA 2724

Feng (Migration) [2018] AATA 2724 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhenguo Feng

CASE NUMBER:  1730094

DIBP REFERENCE(S):  BCC2015/1702275

MEMBER:Justin Owen

DATE:29 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2018 at 10:21am

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Spouse or de facto partner – Sponsorship withdrawn – Relationship ceased – Remain married – Financial demands by sponsor – Departed Australia to care for family – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65, 359, 359A
Migration Regulations 1994 (Cth), Schedule 2 cl 801.221

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 13 November 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 June 2015 on the basis of his relationship with his sponsor. At that time, Class BS 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). 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. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant was not, at the time of decision, the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner. The delegate also found that the applicant did not meet or claim any of the exceptions of subclauses 801.221 (2A), (3), (4), (5), (6) or (8). Relevantly to this matter the primary criteria include cl.801.221 of Schedule 2 to the Regulations.

3. The Tribunal received from the applicant a valid application for review on 30 November 2017. 

4. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Departmental decision record provided by the applicant to the Tribunal. 

5. On 23 April 2018 the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to comment on or respond to information by 7 May 2018.

6. The particulars of the information were that the applicant had made an application for a Partner visa. It was pointed out that it is a requirement for the grant of that visa that at the time when the application is made, and at the time of the decision, the applicant was the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applies.   The Tribunal pointed out that information in the decision record provided by the applicant indicated that his relationship with the sponsoring partner has ended.

7. The Tribunal pointed out that the information was relevant as the Tribunal may conclude that at the time of this decision, the applicant was no longer the spouse or de facto partner of the sponsor. The Tribunal stated that if it was not satisfied that the applicant was the spouse or de facto partner of the sponsor, and if he did not meet any of the alternative criteria for the grant of the visa, the Tribunal may conclude that he did not meet the requirements for the grant of the visa for which he had applied.

8. The applicant was invited to give comments on or respond to the above information in writing.  He was also invited to provide in writing any claims he wished to make as to the exceptions under which he could be granted the Partner visa. These included the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.  The Tribunal invited the applicant to provide information that he believed may be relevant to these exceptions.

9. The applicant responded on 7 May 2018 providing a submission to the Tribunal.

10. The applicant appeared before the Tribunal on 18 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister Ms Xueyan Feng.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

11. The applicant was represented in relation to the review by his registered migration agent.  The agent attended the hearing.

12. The Tribunal noted the evidence before it concerning the status of the applicant’s sponsorship.  The Tribunal invited the applicant to comment on his relationship with the applicant.  He said that right now his relationship was ‘still the same’ as after he first married the sponsor.  He stated that he and the sponsor are still married and they are living apart because of work. 

13. The Tribunal notes the written submission of the applicant dated 6 May 2018 where he has stated that even though the sponsorship had been withdrawn by the sponsor, the marriage relationship had not ‘totally broken up and ended’ because the sponsor had kept the wedding ring plus a gift ring he had provided her; the sponsor had prepared food for him when he came to Inverell to collect his belongings from the sponsor; and the sponsor had visited him in his hotel room the day before he departed Inverell. 

14. The Tribunal enquired when it was that the applicant returned to Inverell to collect his personal belongings from the sponsor.  He replied October 2017.  He said in questioning that he last saw the sponsor in person at this time in October 2017.  He said that he still communicates with the sponsor via WeChat and was last in communication about a month ago.  He said he did not speak to the sponsor often as he didn’t want to trouble her.  

15. The Tribunal noted that the applicant had submitted the applicant was running a restaurant in Inverell with her ex-husband.  He said that they were business partners. 

16. The applicant said in oral evidence and in his written submission that some of the sponsor’s family did not like him because of the fact he was not working in Inverell.  In his written submission he said that he was offered a job in Brisbane but had to remain in Inverell as the sponsor didn’t want him to live apart from her.  As a result he said he stayed at home to look after home duties whilst the sponsor ran the restaurant with her ex-husband.  This was viewed he submitted as a ‘serious defect’ by the sponsor’s family as they considered the applicant useless as he was not generating income.  Over time he submitted the sponsor became influenced by her family. 

17. The applicant talked about the care he provided his ill elderly mother in China and how his absence from Australia caused further strain on his relationship with the sponsor.  He said he never asked the sponsor to look after his mother even though she was meant to do so as a daughter-in-law.  He said that the sponsor didn’t agree with the idea of his mother coming to Australia and his mother ultimately refused to come as she didn’t wish to be a burden on him and the sponsor.  The applicant was away in China looking after his mother between October and December 2016 and June to September 2017 respectively.  The Tribunal notes the medical evidence the applicant presented concerning his mother previously to the delegate and accepts he departed for these reasons.  The applicant submitted to the delegate previously that these visits caused the sponsor to be unhappy and angry with him but he had no real choice but to return to China to care for his mother.

18. The applicant said he was essentially blindsided by the sponsor’s decision to withdraw her sponsorship.  He said that he was offshore in China looking after his mother when he received correspondence from the Department informing him that the sponsorship had been withdrawn. 

19. The applicant said that he had already received notification from the Department that he had met the required period of ‘co-living’ with the sponsor but the sponsor now refused to sponsor him for the permanent stage of the visa.  He intimated that this should be considered in terms of the grant of the visa.  He said that in the beginning of the relationship the feelings towards each other were genuine and it was a genuine relationship.  The Tribunal does not accept this argument.  There is a requirement for the applicant to be sponsored and in a genuine spousal or de facto relationship with the sponsor at the time of decision for this visa.  On the facts before the Tribunal the relationship between the applicant and sponsor has ceased and the sponsor has withdrawn her sponsorship. 

20. Clause 801.221 subclause (1) of the Regulations requires that the applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4), (5), (6) or (8) of clause 801.221. Relevantly in this case, 801.221 subclause (2) requires that the applicant remains the spouse (as defined under section 5F of the Act), or de facto partner (as defined by section 5CB of the Act) of their sponsoring partner at that time. As evidenced in the delegate’s decision record the sponsoring partner withdrew her sponsorship of the applicant on 23 August 2017. No evidence has been provided that confirms the sponsor has reinstated her sponsorship of the applicant.

21. The Tribunal is not satisfied on the evidence before it that the applicant continues to be the spouse or de facto partner of the sponsoring partner. The Tribunal accepts that the parties’ remain married, but on the oral and documentary evidence submitted by the applicant the Tribunal is of the view that the spousal relationship between the applicant and sponsor has concluded. The applicant in this case no longer continues to be sponsored for the grant of the visa by his sponsoring partner. The applicant does not satisfy cl.801.221(2).

22. The applicant may satisfy clause 801.221 by meeting the requirements of at least one of the subclauses (3), (4) (5) and (6). These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsorship has ceased. These include the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children. The Tribunal invited the applicant to provide information he believed may be relevant to these exceptions. Following on from its previous written invitation to claim any of the exceptions, the Tribunal invited the applicant at the hearing to make any claims.

23. The applicant said the sponsor did not engage in physical violence but she had a bad attitude.  She would not talk to him for a long time and give him ‘poker face’.  He said that when his sister would telephone she would get upset him.  He said that the sponsor would also check his mobile telephone and get cross with him when finding messages. 

24. The applicant said to the Tribunal that he felt as though the sponsor placed him under a lot of pressure.  He said that she would take him to visit real estate for sale and give him the impression he should purchase her a property.  He said that he told the real estate agent that he couldn’t afford to purchase a property.  At that time he said their relationship deteriorated.  He said that she gave him the impression that he was a burden and causing her financial stress.  He said that she would even take some of his wages when he worked with the sponsor at the restaurant in Inverell.  The applicant’s sister Ms Feng said that the sponsor would sometimes give the applicant the ‘silent treatment’ and refuse to talk to him for days. 

25. The applicant’s sister Ms Feng spoke to the Tribunal about her own history with the sponsor.  Ms Feng said in evidence that she worried when the applicant went to China that the sponsor would not be happy with his absence.  Ms Feng said that the sponsor had wanted the applicant to sell his mother’s house in China in order to facilitate the purchase by her of a property in Inverell.  She said that the sponsor also wanted the applicant to sell his own property in China to help her purchase a property in Australia.  The applicant’s sister Ms Feng said the sponsor had become angry because the applicant refused to carry out her wishes in relation to the property and as a result started using the threat of removing the applicant’s sponsorship. 

26. The Tribunal enquired as to the threats the applicant claims the sponsor made to his sponsorship.  The applicant said in oral evidence that the sponsor sometimes shouted out loudly with the windows open in Inverell to give the impression there was big conflict within the household.  He talked about going for a walk with her when she started yelling at him.  He said he felt belittled by her when she did this and it affected his self-esteem. 

27. The applicant said later in the relationship the sponsor made financial demands which he could not meet.  He said that was why his visa application had reached the point where it was refused after the withdrawal by the sponsor of sponsorship.  No corroborative evidence was submitted in support of the claim

28. The applicant said that because he didn’t have a job and wasn’t earning money, he would try and save money.  He said the sponsor however would spend money.  He said they both had visas to travel to the United States of America.   He remained in Australia whilst the sponsor went to the USA for three weeks for a holiday. 

29. The Tribunal acknowledges the issues the applicant and the applicant’s sister have raised in evidence concerning the sponsor.  

30. The issue that arises on the evidence in this case however is whether these claims concerning the sponsor and the applicant’s life with the sponsor represent claims that may be considered exceptions under which the applicant can be granted the Partner visa. Whilst the applicant did not formally claim any exception for the grant of the Partner visa, the Tribunal has nevertheless considered whether any of the claims meet the family violence exception: cl.801.221 (6).

31. On the basis of the evidence before it the Tribunal has considered whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

32. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under r.1.22 a reference to a person having suffered or committed family violence is a reference to a person being taken under r.1.23 to have suffered family violence. The applicant is required to provide the necessary evidence in order to establish a valid claim of family violence under Regulation 1.24(b) of the Migration Act. No ‘evidentiary’ documentation has been provided to the Tribunal by the applicant that may support such a claim. The claims of the applicant concerning the sponsor in oral evidence and in his written submissions do not in themselves make a valid claim of family violence.

33. The Tribunal has provided the applicant with the opportunity to provide appropriate evidence in order to make a valid claim. The applicant has not provided evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined family violence. This is because the applicant has not provided a statutory declaration as required: r.1.25 and has not provided evidence specified by the Minister by instrument in writing for r.1.24(b) of the Migration Regulations 1994.

34. There is no claim, evidence or suggestion before the Tribunal that the applicant meets the other alternative criteria in cl.801.211 (3)-(6).  There is no claim made or evidence that the sponsoring partner has died and there is no claim made or evidence of any children or responsibilities towards children. 

35. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria cl.801.211 (2A) and (8) which rely on specific procedural scenarios that do not apply in this case.  

36. The applicant said that he made great efforts in coming to Australia. He said he spent significant time and money getting qualified to teach Chinese. He said that he is currently studying to become a masseuse. He said that if he had to return to China all the money that he had spent in Australia would be wasted. The applicant said that Australia welcomes people from all over the world. He said that he is professionally trained and can make a positive contribution to Australia. He asked the Tribunal to take into consideration his circumstances and give him a chance. The Tribunal notes that the applicant has applied for a Partner visa. This visa is granted on the basis of the applicant’s relationship with the spouse. On the evidence before the Tribunal this relationship has ended. In such circumstances the visa can only be granted if the applicants meet one of the specific exceptions available under the Act and the Regulations. Regrettably for the applicant he is unable to do so.

    FINDINGS     

37. The Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 801 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa: cl.801.221(2).

38. Accordingly the applicant cannot satisfy cl.801.221(2)

39. Further, the Tribunal is not satisfied that a valid claim of family violence has been presented in accordance with Division 1.5 of the Regulations. Accordingly, the Tribunal finds that the applicant has not made a valid claim of family violence under the Act. As the applicant’s relationship with his sponsor has ceased and he has not made a valid claim of family violence, the applicant does not meet the requirements of cl.801.221 for the grant of the visa.

40. Furthermore, the applicants have not claimed, and there is no evidence before the Tribunal, that they meet any of the other alternative criteria. 

41. Accordingly, for the reasons above, the applicant cannot satisfy the criteria in cl.801.221 (1).

42. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    DECISION

43. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Justin Owen
    Senior Member