Gao (Migration)

[2021] AATA 1926

Gao (Migration) [2021] AATA 1926 (29 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yinggen Gao

VISA APPLICANTS:  Mrs Li Tang
Mr Yilin Zhang
Master Zhilin Zhang

CASE NUMBER:  1800125

DIBP REFERENCE(S):  BCC2016/1658145

MEMBER:David Crawshay

DATE:29 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 29 April 2021 at 12:05pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of household – social aspects – nature of commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

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 25 October 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) is Mrs Li Tang, 43, who is a citizen of the People’s Republic of China.

3. The visa applicant applied for the visa on 6 May 2016 on the basis of her relationship with her sponsor, Mr Yinggen Gao, 63, who is the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the visa applicant 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 visa applicant was the spouse of the review applicant.

5. The review applicant appeared before the Tribunal on 13 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video (MS Teams) as it was held during the COVID-19 pandemic.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

8. The visa applicant has two children from a relationship with her ex-spouse. These two children are included in the present application as secondary applicants. The visa applicant divorced her ex-spouse in October 2015 but she claims to have been estranged from him at some point after the birth of her second child in 2014.

9. The review applicant has one child from a relationship with his ex-spouse. The pair divorced in 2012.

10. The parties claim to have met through Ms Zhiyue Zhou, and to have initiated communication via WeChat in May 2015. Ms Zhou is claimed to be the visa applicant’s cousin. The parties claim to have first met in person in August 2015 in Melbourne during a visit by the visa applicant to Australia ostensibly to inspect a house in Sydney bought by a friend. The parties claim to have enjoyed each other’s company before the visa applicant returned to China in September 2015.

11. The review applicant travelled to China in December 2015 to visit his ill mother and the parties claim that the decision was made in light of her advanced illness to marry, which the parties did a week later on 26 December 2015 when they obtained their marriage certificate. Two days later, on 28 December 2015, the parties claim to have celebrated a marriage ceremony where they invited some guests comprising family members and friends including Ms Zhou. The review applicant returned to Australia on 31 December 2015.

12. A further trip was made to China in March/April 2016 where the parties claim to have lived together at the visa applicant’s address in Shanghai.

13. On 6 May 2016, the visa application was lodged but was refused on 25 October 2017. An application for review was made on 3 January 2018.

14. Further trips were made by the parties to visit each other – such as when the review applicant claims to have visited the visa applicant in March/April 2017, and when the visa applicant claims to have visited the review applicant in March 2018 and March 2019.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the visa applicant has been the spouse of the review applicant under s.5F of the Act at the time of application and at the time of decision.

    Whether the parties are in a spouse or de facto relationship

16. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

17. “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 visa applicant’s and review applicant’s 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?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has seen a copy of a marriage certificate issued by the Ministry of Civil Affairs of the People’s Republic of China, dated 26 December 2015. The Tribunal is satisfied that the document is genuine and that the parties were free to marry each other. 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?

    Financial aspects of the relationship

19. The Tribunal has considered the financial aspects of the parties’ relationship, including 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.

20. The parties’ evidence is that they do not have any joint real estate or other assets. They have their respective properties, but these have not been combined as they live in different countries and are awaiting the outcome of the visa application. The evidence in the representative’s submissions is that the visa applicant has remitted a significant sum of money to the review applicant. Some remittance slips are provided which tends to confirm that at least some money was transferred from one party to another.

21. The Tribunal notes the paucity of evidence in relation to the financial aspects of the parties’ relationship. However, given the fact that the parties live in separate countries and have not had the chance to visit and live with each other for extended periods, it has chosen to give little adverse weight to this lack of evidence.

    Nature of the household

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

23. Both parties have children of their own – in the case of the review applicant, a son; in the case of the visa applicant, two sons who are both attached to the application as secondary applicants. There is no evidence to suggest that either party has any joint responsibility for the care and support of the other’s children.

24. Regarding the parties’ living arrangements, the Tribunal notes that they have lived apart from each other except for very limited periods of time where one party has visited the other party in their home country. In the case of the review applicant, he has visited the visa applicant three times – in December 2015, in March/April 2016 and in March/April 2017. In the case of the visa applicant, she has visited the review applicant four times – in August/September 2015, in July 2016, in March 2018 and in March 2019. The trips were all relatively short – the longest being around 11 days and the shortest three days. Evidence from the parties and the review applicant’s representative stated that the parties lived together during these times except for a limited period in December 2015 when the review applicant visited his sick mother. The review applicant’s representative submitted in pre-hearing submissions of 9 July 2020 that the parties shared domestic duties and responsibilities during these stays, including the review applicant undertaking the food shopping, general household chores and cooking duties.

25. The Tribunal again notes the paucity of evidence regarding the nature of the parties’ household. It notes the relatively short amount of time that they have spent together during the almost six years they claim to have known each other. However, it has also considered the parties’ jobs – the review applicant as a restauranteur who works long hours; the visa applicant as a manager in a medium-sized company. It considers that the parties may not have the free time to visit each other for extended periods at-a-time. It notes the evidence provided about the parties’ communications, which demonstrate that they communicate extensively with each other. It accepts that this evidence shows the parties have sought to support each other while they have been physically apart. Consequently, it has chosen to give this evidence some positive weight in favour of the parties being in a genuine and continuing relationship.

    Social aspects of the relationship

26. The Tribunal has considered the social aspects of the parties’ relationship, including whether the parties represent themselves to other people as being in a married relationship with 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.

27. The evidence of the parties and the review applicant’s representative is that the parties were married in late-December 2015 in a ceremony that took place two days after they obtained their marriage certificate. It was submitted that both parties were represented among the 20 or so guests present – including family members and friends. Photographs of the wedding confirm that it was attended by around 20 people. Unfortunately, these photographs were not captioned and the Tribunal cannot identify the attendees, although the parties were able to identify Ms Zhou who was the person through whom the parties claim to have met. Nonetheless, and despite the lack of information regarding the attendees, the Tribunal accepts that the parties’ wedding was attended by guests from both sides.

28. The Tribunal has seen photographs of the visa applicant’s visits to Australia in 2018 and 2019 where she is seen with the review applicant and some third parties such as the review applicant’s son, the aforementioned Ms Zhou and others. The Tribunal has also seen a number of photographs taken during the review applicant’s trips to China, where the parties are seen socialising. The two secondary applicants are seen in some of these photographs, as well as the review applicant’s mother who lives in Shanghai.

29. The Tribunal has considered this and other evidence such as two Form 888 statutory declarations given at the Department stage. Based on this evidence, it accepts that the parties have attempted to represent themselves to some members of their families and friends as being in a married relationship, most notably through their marriage ceremony but also socially in Australia and China. It also accepts that they are recognised by these people as being in a married relationship. Finally, it accepts that they plan and undertake joint social activities.

    Nature of the parties’ commitment to each other

30. The Tribunal has considered the nature of the parties’ commitment to each other, including 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.

31. The parties claim to have met through the visa applicant’s cousin, Ms Zhou, and to have initiated communication via WeChat in May 2015. They claim to have first met in person in August 2015 in Melbourne during a visit by the visa applicant to Australia ostensibly to inspect a house in Sydney bought by a friend. The parties claim to have enjoyed each other’s company before the visa applicant returned to China in September 2015. The review applicant travelled to China in December 2015 to visit his ill mother and the parties claim that the decision was made in light of her advanced illness to marry, which the parties did a week later.

32. The Tribunal has assessed these claims, which it notes appear in multiple sources and were repeated by the parties at hearing. In light of the substantial consistency of these claims including in the testimony of the parties the Tribunal accepts that their relationship began and developed as claimed. This being the case, the Tribunal finds that the parties have been in a committed relationship for almost five-and-a-half years since they were married in December 2015. During this time, the Tribunal finds that they have been living together for limited periods.

33. Regarding the degree of companionship and emotional support the parties draw from each other, the Tribunal has considered evidence of the parties’ communications with each other, which show frequent calls being made to each other over an extended period. It has considered that the parties showed a reasonably detailed knowledge of each other when questioned at hearing. It notes the support that the visa applicant has given the review applicant in light of the serious illness experienced by his mother, including by visiting her at her house in Shanghai (most recently at Chinese New Year 2021). It accepts based on this and other evidence that the parties draw a substantial degree of companionship and emotional support from each other. It accepts that they view their relationship as a long-term one.

    CONCLUSION

34. The Tribunal has weighed the above evidence and balanced it against itself when assessing whether the visa applicant meets the requirements of s.5F(2) at the time of application and at the time of this decision. On the basis of the above evidence and in light of the findings it has made, the Tribunal is satisfied that these requirements are met at the relevant times. The parties’ relationship is genuine and continuing, they have a commitment to a shared life as a married couple to the exclusion of all others, and they do not live separately and apart on a permanent basis.

35. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

36. 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 309 visa, including those in respect of the secondary visa applicants.

    DECISION

37. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    David Crawshay
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).