Gan (Migration)

[2020] AATA 1643

Gan (Migration) [2020] AATA 1643 (19 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yu Gan

CASE NUMBER:  1727524

HOME AFFAIRS REFERENCE(S):          BCC2015/2824160

MEMBER:David Crawshay

DATE:19 February 2020

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 of Schedule 2 to the Regulations; and

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 19 February 2020 at 11:41am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing spouse relationship – limited integration of finances – shared household responsibilities – applicants are not sociable – companionship and emotional support – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

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 and Border Protection 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 is Mr Yu Gan, 29, who is a citizen of the People’s Republic of China.

3. The applicant applied for the visa on 28 September 2015 on the basis of his relationship with his sponsor, Ms Yu Ling (Elaine) Chan, 37, who is an Australian permanent resident. 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).

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because ) because he did not meet the definition of spouse under s.5F of the Act. Specifically, the delegate found that there was insufficient evidence to demonstrate that the applicant was the spouse of the sponsor.

5. The applicant appeared before the Tribunal on 29 November 2019 to give evidence and present arguments (initial hearing). The Tribunal also received oral evidence from the sponsor at the initial hearing. The applicant indicated before the initial hearing that he would make available Mr Max Tsang as a witness. Mr Tsang is a mutual acquaintance of both parties and the applicant’s current employer. However, Mr Tsang was unable to attend the initial hearing. After having reviewed the evidence to that point, the Tribunal found it necessary to interview Mr Tsang, and so ordered there be a further hearing for that purpose. This hearing took place on 18 February 2020 (resumed hearing).

6. The Tribunal hearings were conducted with the assistance of an interpreter in the Cantonese and English languages.

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

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

   BACKGROUND

9. The applicant was born in China in 1991. He came out to Australia in January 2015 on a Visitor visa (FA-600).

10. The sponsor was born in Hong Kong in 1982. She came to Australia in 1997 as the holder of a Student visa (TU-560). In 2004, she was granted a Partner (Temporary) visa (UK-820), based on her relationship with her then-spouse. She was granted a Partner (Permanent) visa (BS-801) in 2006. The couple divorced in August 2012. The sponsor currently holds a Resident Return visa (BB-155).

11. The parties claim to have met in Melbourne in April 2015. They claim to have met through a mutual acquaintance, Max Tsang. Mr Tsang is the applicant’s cousin, and is claimed to be friends with the sponsor through their days working in a restaurant in Hurstville in Sydney in the early-2000s. The parties claim that the sponsor had travelled from Sydney to Melbourne to stay with Mr Tsang and his wife at an address in Templestowe Lower (the Templestowe Lower address). The applicant was living with Mr Tsang at that time. The parties claim they exchanged numbers at that time before the sponsor returned to Sydney.

12. The parties then claim to have visited each other several times after that. The applicant claims to have driven up to Sydney a few weeks later in May 2015 with Mr Tsang and to have stayed in an apartment in Haymarket. The applicant claims that the sponsor flew down to Melbourne a few weeks later and stayed at the Templestowe Lower address.

13. The applicant claims to have made two trips to Sydney in July 2015. The first of these trips was made on his own. The second was made with Mr Tsang. During the second of these trips, the applicant claims to have proposed to the sponsor and the parties decided on moving to Melbourne.

14. In August 2015, the applicant claims to have travelled to Sydney, again with Mr Tsang, to transport the sponsor and her belongings to Melbourne. The applicant claims that the sponsor moved into the Templestowe Lower address.

15. In late-August 2015, the parties were married and the visa application was lodged on 28 September 2015.

16. The applicant claims that the parties moved into an address in Fitzroy Street, St Kilda (the Fitzroy Street address) in September 2015. He claims that they stayed there until their lease was not renewed in July 2018, whereupon they moved to Mr Tsang’s new address in Donvale (the Donvale address) until September 2018. They then claim to have secured accommodation in St Kilda Road, St Kilda (the St Kilda Road address), where they currently live.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant is the spouse of the sponsor under s.5F of the Act.

    Whether the parties are in a spouse or de facto relationship

18. 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 permanent resident.

19. ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

20. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties have submitted a certificate for a marriage that took place on 27 August 2015 (refer Department folio 17). The certificate states that the marriage was solemnised in accordance with the Marriage Act 1961. 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?

    The financial aspects of the relationship

21. The Tribunal has considered any joint ownership of real estate or other assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party, and any sharing of day-to-day household expenses in assessing the financial aspects of the relationship.

22. The parties told the Tribunal that they have no joint real estate or other major assets. The applicant said that the parties have no joint liabilities, because they are not in a position to secure a loan. The Tribunal accepts this evidence.

23. The applicant told the Tribunal that the parties do not owe each other any legal obligations. He submitted that “Asians do not have wills”. He also said that he does not get paid superannuation, so cannot nominate a beneficiary for those purposes. While his statement would suggest that he was being denied rights under superannuation legislation, the Tribunal accepts that this is probably true and he does not get paid superannuation. As to the contention that “Asians do not have wills”, the Tribunal has its doubts. However, the Tribunal also accepts that the parties currently have limited assets and so there is little need for a will and it might be unreasonable to expect them to have one.

24. The applicant told the Tribunal that the parties have a joint bank account, as well as each having a personal account. The applicant said that his income gets paid into the joint account, while the sponsor’s income (to the extent it is transferred electronically) is paid into her personal account for her to use on personal items such as toiletries. Statements from the parties’ joint bank account were tendered to the Tribunal and while these show regular transactions, the transactions appear to be mainly for the benefit of the applicant. When it was put to the applicant that the sponsor did not use the joint account, he answered that she did not, instead using cash which she receives from her employment. The Tribunal accepts this evidence.

25. Turning lastly to the basis of any sharing of day-to-day household expenses, the applicant told the Tribunal that rent for the parties’ current and previous residences is taken out of the joint account which, as above, is topped up by the applicant’s income. Bank statements confirm this. He said that utilities were also paid out of funds from the joint account. Again, statements confirm that some payments were made, such as to energy and broadband companies. The applicant said that dining and entertaining costs are provided for by him, as well as groceries. The Tribunal accepts this evidence.

26. The totality of the evidence demonstrates to the Tribunal that the sponsor retains much of her income for her own spending. The applicant, on the other hand, provides the bulk of money for use on everyday expenses, as well as for rent and utilities. The Tribunal finds that the parties have integrated their finances to some extent, albeit limited. This evidence is given some weight by the Tribunal.

    The nature of the household

27. The Tribunal has considered any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework in assessing the nature of the household.

28. The parties have indicated that they have no children from the relationship or from any previous relationships.

29. In terms of their addresses during their claimed relationship, the parties gave the following timeline:

    ·August to September 2015                -          Templestowe Lower address

    ·September 2015 to July 2018           -          Fitzroy Street address

    ·July to September 2018  -          Donvale address

    ·September 2018 to today                  -          St Kilda Road address

30. The parties have submitted correspondence from banks, utility companies, rental agencies and the ATO addressed to one or both parties at the Fitzroy Street and St Kilda Road addresses as evidence of their joint residence there. The parties also provided consistent testimony at the initial hearing on aspects of their living arrangements, such as when they moved from property-to-property, the particulars of their current address, and their daily routines. The Tribunal has also had regard to the evidence of Mr Tsang at the resumed hearing which it has chosen to accept. The Tribunal accepts this evidence and finds that the parties have been living together as claimed at the time of application and through to today. It gives this evidence significant weight.

31. In relation to the sharing of housework, the applicant told the Tribunal at the initial hearing that he cooks for the parties, as well as preparing a boxed lunch for the sponsor every day. He also takes out the rubbish. The applicant said that the sponsor is responsible for attending to all the housework as “she likes cleanliness”. This evidence is consistent with the parties’ submissions made before hearing. The Tribunal accepts it and gives it some weight.

    The social aspects of the relationship

32. The Tribunal has considered whether the 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 parties plan and undertake joint social activities in assessing the social aspects of the relationship.

33. The parties have submitted little evidence in relation to the social aspects of their relationship, including in respect of to whom they represent themselves. They have submitted some photographs which show the parties either in their own company or with Mr Tsang. No other people appear in these photographs. The applicant told the Tribunal at the initial hearing that the parties do not like having their photograph taken. Mr Tsang and his wife appear to be among only a few mutual friends of the parties. The parties both claim to know several other people, such as an acquaintance of the applicant with whom he plays snooker and watches Premier League soccer (the sponsor referred to him at the initial hearing as “beard man” – a description also used by Mr Tsang), as well as another acquaintance of the applicant through snooker and a regular patron of the restaurant where he works. Form 888 statutory declarations were received from all three people, as well as from Mr Tsang. All declarants claim to see the parties regularly. The applicant told the Tribunal at the initial hearing that all of his co-workers know that the parties are husband and wife, although no documentary evidence was submitted in support of this (apart from evidence given by his employer, Mr Tsang). The Tribunal accepts that the parties have represented themselves to a very limited number of people as being married to each other. This evidence is given some, albeit limited, weight.

34. Mr Tsang appeared as a witness at the resumed hearing. When asked by the Tribunal why he considers the parties’ relationship to be genuine and continuing, Mr Tsang gave the following example. He said that he often requests the applicant to stay longer at work, to which the applicant agrees. However, when the sponsor subsequently rings the applicant and asks him to come home instead, he apologises to his boss and goes home to her. Mr Tsang also told the Tribunal that the applicant cooks food at work to bring home to the sponsor. The Tribunal accepts this evidence and gives it some weight in its consideration of the opinions of the parties’ friends and acquaintances.

35. When asked at the initial hearing about whether the parties engage in any joint social activities, the applicant replied that they have different days off and seldom have common free time together. The parties wake up at different times – the sponsor wakes up earlier and goes off to her work as a beautician before the applicant wakes. They arrive home from work at different times as well, although the applicant does bring home food for the parties to eat after work. The applicant was asked by the Tribunal about account transactions that were made at Mt Buller in the winter months of 2019. He replied that he travelled there to ski with some friends who he had made on the internet. He said that the sponsor does not join him as “she does not like sports”. This evidence is given limited weight by the Tribunal.

36. As stated above, there is a dearth of evidence in relation to the social aspects of the relationship. The parties both told the Tribunal at the initial hearing that they are not overly social. The applicant said that the parties “do not like making new friends”. This is a telling comment. The applicant said that, while he used to know some friends on working holiday visas, he did not have any stable acquaintances. Neither party professed to be particularly close to their parents. The applicant said that he rarely speaks to his parents – it was so rare he was unable to remember – although he did tell them that he was getting married. The applicant said that the sponsor rarely contacts her parents, although she did return to Hong Kong to visit her elderly father in 2018 who was not in a good way. The parties told the Tribunal at the initial hearing that they have only spoken to each other’s parents once.

37. The Tribunal accepts that the parties are not sociable. Such is clear from the evidence, especially their testimony at the initial hearing. The Tribunal also accepts that the parties are not close to their own parents. The Tribunal accepts they have very few friends, and only Mr Tsang and his wife seem to be anything approaching good friends. Lastly, the Tribunal accepts that they do not work the hours that allow them to engage in joint social activities, although the Tribunal also notes that the applicant has chosen to travel to the snow with some of his friends from the internet away from the sponsor on several different occasions. Based on these considerations, the Tribunal finds that the weight given to this evidence should not be diminished further by virtue of its paucity.

    The nature of the parties’ commitment to each other

38. The Tribunal has considered the duration of the parties’ 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 in assessing the nature of the parties’ commitment to each other.

39. The parties claim to have met in April 2015. They claim to have built up a relationship by visiting each other in Melbourne and Sydney in the months after. They claim that the applicant proposed to the sponsor in early-July 2015. They claim that the sponsor moved from Sydney to Melbourne in early-August 2015. The parties married in late-August 2015.

40. There was some confusion over inconsistencies to do with dates. The first inconsistency related to when the parties claim to have first met. Whereas the parties’ application forms and statements in support had stated that the parties first met in mid-March 2015 at Darling Harbour in Sydney, the parties both told the Tribunal that they met in Melbourne around Eastertime in 2015 (i.e. around early-April 2015). The applicant’s agent told the Tribunal at the initial hearing that he had wrongly transcribed the facts of the parties’ first meeting for them to sign. The Tribunal notes the consistent information given by the parties at the initial hearing, along with the testimony given by Mr Tsang at the resumed hearing. While it rebukes the parties and the applicant’s agent for not checking information contained in important documents tendered to the Department, it finds that this was in the way of a technical error and not a deliberate act.

41. Another inconsistency arose over the number of times the parties claim to have visited each other before the sponsor moved to Melbourne. The applicant at the initial hearing gave evidence that conflicted with what was contained in statements tendered to the Department. The applicant claims to have been nervous and confused in the initial hearing. In light of this, the Tribunal allowed the applicant a chance to clarify the timeline of events in the inception and development of the parties’ relationship at the resumed hearing. Having clarified the evidence, which also corresponded with the timeline given by Mr Tsang at the resumed hearing, the Tribunal is satisfied that the parties’ relationship began and developed as claimed. This timeline forms the basis of the “Background” section of this decision above.

1. Based on this timeline, the Tribunal finds that the parties were in a committed relationship since the applicant proposed in early-July 2015. As at the time of application, the parties had been in a relationship for just over two-and-a-half months. This evidence is given little weight.

2. The Tribunal has found above that the parties were living together as claimed since when the sponsor moved into the Templestowe Lower address in early-August 2015. However, given that the parties had only been living together for just over one-and-a-half months at the time of application, this evidence is given little weight.

3. The Tribunal turns to the degree of companionship and emotional support the parties draw from each other. When asked at the initial hearing to comment on the companionship and emotional support that the parties offer each other, the applicant told the Tribunal that he provides more support to the sponsor than she does to him. The Tribunal finds this a fairly curious statement. The applicant said that the sponsor gets agitated and emotionally worked-up easily. He said that he sees how much she has sacrificed in order to be with him, including transplanting her life from Sydney to Melbourne. He said that the sponsor seldom has free time to spend with him.

4. When asked at the initial hearing why he considered the relationship to be genuine, the applicant said that he is a traveller, and while he was travelling he found someone he fell in love with and someone who had given up her life in Sydney in order to be with him. He said the sponsor deserves someone who accommodates her wishes. He openly pondered what the sponsor’s living would be like if he was not able to live with her in Australia. He said that he has been worried about this, and about her ability to pay for things such as rent. He said that, whereas the sponsor does not have family and friends in Melbourne, she has him.

5. The sponsor told the Tribunal at the initial hearing that the applicant is very patient and is a good listener. She said that she can be very bad-tempered but he accommodates her temperament. She pointed out the sacrifices she had made to move to Melbourne, giving up her life in Sydney in order to move to somewhere where she did not know anyone. She said that, after her divorce from her ex-spouse, she had not considered remarrying until the time she met the applicant. In a statement signed a few days before the initial hearing, the sponsor said that the way the applicant treats her makes her feel like she is not alone. She said that he is a very honest and loyal partner.

6. It is clear to the Tribunal that the parties’ relationship is not particularly romantic. So much was conceded by the applicant’s agent at the initial hearing when he spoke about the circumstances of the applicant’s proposal to the sponsor. The applicant also pointed out in a statement signed just before the initial hearing that the sponsor is not a romantic person. However, the Tribunal recognises that there appears to be a high degree of support given by the applicant to the sponsor, financially, emotionally and in terms of security. The applicant appears to relish his role as the principal provider and the sponsor appears to appreciate his efforts in providing that support and security, and values his loyalty.

7. The Tribunal finds that the parties draw companionship and emotional support from each other, and this aspect is given substantial weight by the Tribunal.

8. Turning lastly to whether the parties view their relationship as long-term, both parties told the Tribunal at the initial hearing that they wish to purchase their own home, with the applicant saying that he has considered seeking a loan from his parents in order to do so, although he does not consider this the right time for it. When asked whether they were considering having children, the applicant replied that neither party liked children, although they like dogs. At the resumed hearing, the Tribunal asked the applicant whether there was an “end in sight” to their lifestyle which sees them working long hours and spending the vast majority of time away from each other. The applicant replied that he has recently been given a major role in the running of a new restaurant in South Melbourne. He told the Tribunal that this job would mean more flexibility in his hours. The Tribunal accepts this evidence and gives it some weight.

   CONCLUSION

9. The present matter raised a couple of issues for the Tribunal.

10. Firstly, there is very little evidence to show the social aspects of the relationship. However, relationships can still be found to be genuine even without the recognition of others, or with the recognition of only a few people. The parties do not appear to have gone out of their way to not represent themselves to other people – they just have very few people to which to represent themselves. Their cause is not helped by the long, offset hours they work and the resultant lack of free time together. The Tribunal has taken these factors into account when assessing the social aspects.

11. Secondly, and arguably more importantly, there appears to be an imbalance between the parties in relation to the degree of commitment shown. From the evidence, it is obvious that the applicant provides the bulk of the financial support. The applicant also concedes that the sponsor is not romantic, although the Tribunal is mindful of not equating love and romance with commitment. However, it struck the Tribunal when questioning the parties how the applicant would couch the relationship in terms of what he does for the sponsor, whereas the sponsor looked at it from the point-of-view of what the applicant does for her. It may be easy to conclude from this that the sponsor lacks the necessary degree of commitment to the applicant and to their relationship. However, the Tribunal believes the better view is that there is a degree of interdependency that it considers equates to commitment.

12. 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 made. The parties’ relationship was genuine and continuing, they had a commitment to a shared life together, and they lived together at the time of application. Therefore the applicant meets cl.820.211(2)(a).

13. The Tribunal is satisfied that the applicant was sponsored by the sponsor at the time of application as per cl.820.211(2)(c)(i). The Tribunal is also satisfied that the applicant was the holder of a substantive visa at the time of application and is therefore not subject to the requirements of cl.820.211(2)(d). Therefore, the applicant meets cl.820.211(2).

14. The applicant has continued to meet the requirements of cl.820.211(2) at the time of decision. Therefore, she meets cl.820.221.

15. 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

16. 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.

    David Crawshay
    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).