FU (Migration)

[2019] AATA 4288

FU (Migration) [2019] AATA 4288 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms XINYAN FU

CASE NUMBER:  1821117

HOME AFFAIRS REFERENCE(S): BCC2016/1388970 BCC2018/4054231

MEMBER:Steven Griffiths

DATE:4 October 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 04 October 2019 at 2:10pm

CATCHWORDS

MIGRATION – refusal – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – validly married – social aspects of relationship – do not have a mutual commitment to a shared life together – relationship no longer genuine and continuing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cls 820.211(2)(a), 820.221

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant Ms. Xinyan Fu, applied for the visa on 6 April 2016 on the basis of her relationship with her sponsor, Mr. Tattoo Presley. 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 (the Regulations). The primary criteria must be satisfied by at least one applicant.

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 the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.

4. The applicant appeared before the Tribunal on 30 September 2019 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented by her registered migration agent, who attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration file and Tribunal file, including additional information provided to the Tribunal and the evidence from the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGROUND OF THE EVIDENCE

9. Ms. Fu was born in Sifang District, Qingdao City, China, in 1972. Her parents, born 1936 & 1940, and two brothers and a sister, born 1965, 1970 & 1979, all live in China. She married her first husband in 1996, and has a son, born 1998, and divorced in 2011. Her son lives in China and is not migrating with her. She married her second husband in 2014 and he died in 2015.   

10. Mr. Presley was born in Henley Beach, Adelaide Australia in 1954, with a birth name of Steven Kennedy, and changed his name in 2003. His father is deceased, and his mother, born 1926, and brother, born 1948, live in Adelaide. He married his first wife in 1975 and has two sons, born 1978 & 1979, who live in Adelaide, and was divorced in 1994.

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Section 376 documents – withdrawal of support by sponsor

    Movement Records

    Energy Australia in joint names, 3 accounts

    22 Pages of Facebook communications

    2018 Tax Summary for sponsor and includes applicant as spouse

    Car registration in joint names

    SA Water in name of applicant for August & November 2018 & May 2019

    Facebook posts for November 2017, June to December 2018 & January to April 2019

    18/19 Council rates in joint names

    Medicare letter 17/7/18 confirming applicant no longer eligible

    Home improvements quotes 5/6/16 to sponsor name

    Applicant evidence of deliveries to home

    Certificate of Title to home in joint names

    Gas accounts in joint names for October 2018 & January 2019

    58 photos with family and friends

    Bank SA joint names account, March 2018 to March 2019

    Migration Agent submission

    Bank SA joint names account, transaction listing for 26/4/19 to 23/9/19

    Letter 23/9/19 confirmation of future knee surgery for sponsor

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

12. 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. The Tribunal accepts that the sponsor is an Australian citizen by birth.  

    Whether the parties are in a spouse or de facto relationship

13. ‘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).

14. 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?

15. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with an Australian Certificate of Marriage as evidence of their marriage on 22 March 2016.

16. The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    Section 376 Certificates from the Minister for Home Affairs

17. The parties were advised that three Section 376 Certificates by the Minister for Home Affairs, which the Tribunal considers to be valid, on information provided to the Minister had been issued, with information received from three parties, with one of the parties contributing information each time a Section 376 Certificate was created.

18. Copies of the Certificates were provided to the parties and their registered agent, with the Tribunal adjourning for 5 minutes to allow the parties and migration agent to confer.

19. At the resumption, the parties indicated that they did not wish to respond to the issue of Sections 376 Certificates being issued, wanting to continue with questions.

20. At this time, the parties were asked if they consider the marriage to be a long-term one, with both responding yes, and the sponsor was asked if he wished to continue as sponsor to the applicant, and responded yes.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered 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 expense

21. The Tribunal determines from the documented transfer of property ownership provided and the oral evidence of the parties, that at the time of the visa application the parties did not have joint ownership of real estate or other major assets.

22. The Tribunal accepts the documented and oral of the parties on the ownership of the home in which they have resided being changed in July 2018 from the sole ownership by the sponsor to also include the applicant, and determines at the time of this decision the parties have joint ownership of real estate.   

23. The Tribunal determines from the oral evidence of the parties on the immediate payment by the sponsor of all accounts received, that at the time of the visa application and this decision, the parties did not and do not have any joint liabilities.

24. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.

25. The Tribunal accepts the documented and oral evidence of the parties, confirmed independently, of the joint bank account operated by in to which both parties deposit funds to pay for significant commitments, household and entertainment costs, and determines, at the time of application and this decision, this account confirms the pooling of financial resources in relation to major financial commitments and the sharing of day-to-day household costs. 

26. The Tribunal accepts the oral evidence of the parties, confirmed independently, of another joint account operated, the funds in which came from the applicant and were in her possession prior to the relationship commencing, and which the applicant has drawn from to make two loans to friends, and accepts the oral evidence of the sponsor that he has never accessed the account.

    Nature of the household aspects that must be considered include:-

    (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

27. The Tribunal accepts the oral evidence from the parties of the applicant having a son from her first marriage and the sponsor two sons from his first marriage, with all being adults and living independent of the parties, and determines at the time of application and this decision the parties do not have joint responsibility for the care and support of children.   

28. The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have lived together, other than for periods of approximately 3 weeks each of two occasions, one in which the applicant worked in Victoria and one in which the applicant travelled to China to visit family, since 21 January 2016.

29. The Tribunal accepts the photographic and oral evidence, confirmed by the parties independently, on the roles each undertakes in the household, and determines, at the time of application and this decision, the parties have shared the responsibility for housework.

    Social aspects of the relationship that must be considered include:-

    (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

30. The Tribunal accepts the photographic, documented and oral evidence and determines the parties married on 22 March 2016.

31. The Tribunal notes, as part of the information covered by Section 376 Certificates, the sponsor confirmed in writing, dated 24 April 2018 he “wanted her to leave and not have any more contact with me” and in a letter from a treating doctor, dated 12 June 2018, following a consultation with the sponsor, notes “and lately he has been mentioning how he is getting mentally disturbed by his wife”, and in a letter received on 8 January 2019 the sponsor notes “I do not want to be with her anymore”.

32. The Tribunal determines from this documented evidence that at the time of the visa application the parties were representing themselves to other people as being married to each other. 

33. The Tribunal accepts from this documented evidence the sponsor had confirmed to others since 24 April 2018 that he no longer wished to be married to the applicant, and notes at the hearing he confirmed verbally to the applicant and hearing that he no longer wished to married to her, and determines at the time of this decision that the sponsor was not representing himself to other people as wanting to remain married.

34. The Tribunal accepts the documented and photographic evidence of family and friends of the parties and determines, at the time of application, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.

35. The Tribunal accepts the documented evidence of two parties who provided written statements dated 20 September 2019 that they were aware of concerns by the sponsor on the relationship of the parties and expressed concerns based on their own observations of the manner in which the applicant treated the sponsor.

36. The Tribunal determines from this documented evidence, at the time of this decision, that not all friends and acquaintances were supportive of the relationship and marriage.

37. The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, and determines, at the time of application and this decision, the parties have planned and undertaken joint social activities

    Nature of the commitment to each other that must be considered include:-

    (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.

38. The Tribunal accepts the evidence of the parties first contact being on 10 October 2015, meeting on 1 January 2016 and marrying on 22 March 2016.      

39. The Tribunal accepts the photographic, documented and oral evidence that the parties have lived together, other than for periods of approximately 3 weeks each of two occasions, one in which the applicant worked in Victoria and one in which the applicant travelled to China to visit family, since 21 January 2016.

40. The Tribunal accepts the documented and oral confirmation from the sponsor that the relationship, as documented since 24 April 2018, has caused him significant concern and that he has not drawn emotional support from the applicant.

41. The Tribunal accepts the documented and oral evidence of the parties and determines, at the time of application, they were providing companionship and emotional support to each other.

42. The Tribunal determines, from the documented evidence provided by the sponsor since 24 April 2018, the applicant was not providing him with emotional support.

43. The Tribunal accepts the documented and oral evidence of the parties and determines, at the time of application, they had a commitment to each other and viewed the relationship as a long-term one.

44. The Tribunal determines, with the confirmation to the hearing by the sponsor that he no longer wants to continue with the marriage or to be the sponsor of the applicant, from the position of the sponsor the relationship has broken down and will not be continuing.  

    Section 359AA Adverse Information

45. The Tribunal, as required by Section 359AA, gave the details of Adverse Information provided to the Minister for Home Affairs and the Administrative Appeals Tribunal, with this information contained with Section 376 identified documents, noting the information was from the sponsor stating he no longer wished to continue with the relationship / marriage and that he wished to withdraw as sponsor.

46. The Tribunal confirmed that it considered this information to be of sufficient importance to give consideration to affirming the decision of the delegate.

47. The sponsor was asked to confirm that he had provided the information, with details of each issue outlined, with the sponsor confirming for each issue that he had provided the information, and then stating to the applicant that he did not wish to continue with the relationship / marriage and withdrew his support as sponsor of the visa application.

48. The Tribunal ensured the applicant was aware of the issues put and the answer given by the use of the interpreter, with the applicant provided with the opportunity to respond and ask questions.

49. The Tribunal notes the applicant by way of response asked one question, being how long the sponsor had been writing his issues, with the response from the Tribunal being that correspondence had been received over approximately the last 18 months.

50. The Tribunal notes that at no time through this stage of the hearing did the migration agent seek an adjournment to confer with the applicant.

51. The Tribunal, in noting the confirmation by the sponsor that he no longer wished to continue with the relationship / marriage or as sponsor of the visa application, determines the oral evidence provided to the hearing by the sponsor and applicant would could not be accepted in full given the questions raised on the validity of the relationship in the final stages of the hearing.

52. The Tribunal determines, at the time of this decision, the parties do not have a mutual commitment to a shared life together as a married couple to the exclusion of all others and that the relationship is not genuine and continuing.

53. The Tribunal accepts the oral confirmation by the sponsor that he no longer wish to continue with the relationship / marriage with the applicant or continue as sponsor of the visa application, which supports the written statements of the sponsor made since 24 April 2018, 

54. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision.

55. The applicant therefore does not meet cl.820.221(1)(a) and does not meet cl.820.221(1)(b), with no claims made on cl.821.221(2) or cl.820.221(3).   

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

    DECISION

57. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Steven Griffiths
    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).