Harvey (Migration)

Harvey (Migration) [2018] AATA 3606 (23 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Aaron James Harvey
VISA APPLICANT:  Ms Lai Wan CHOI
CASE NUMBER:  1712823
DIBP REFERENCE(S):  OSF2016/039871
MEMBER:Adrienne Millbank
DATE:23 August 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Statement made on 23 August 2018 at 3:27pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Whether the parties are in a genuine spousal relationship – Limited pooling of financial resources – Further pooling of financial resources contingent on grant of visa – Limited joint household responsibility – Relationship held out to others as genuine – Continuation of relationship contingent on grant of visa – Parties have limited knowledge of each other’s circumstances – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211, 309.221

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 April 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant (the applicant) is a 49 year old Hong Kong national who was born in China, and the review applicant (the sponsor) is a 50 year old Australian citizen who was born in New Zealand. The applicant applied for the visa on 14 March 2016 on the basis of their being in a spousal relationship. 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). Relevantly to this matter the primary criteria include cl.309.211(2).
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.309.221. In light of the applicant’s immigration history, summarised below, the Delegate considered that the applicant pre-planned her entry and stay in Australia ‘using a well-known method’. The Delegate further considered that the applicant was involved in gambling in Hong Kong, and that she amassed considerable amounts of money from her involvement in gambling and working in the sex industry while in Australia, which she sent back to bank accounts in Hong Kong.
The Delegate was not satisfied that the applicant entered into the relationship with the sponsor for genuine reasons; that she was not using the Partner visa application to secure a migration outcome. An interview was conducted with the applicant in the Australian Consulate in Hong Kong on 27 March 2017, in which the applicant’s immigration and relationship history, and the cancellation of her Electronic Travel Authority (ETA) on 27 March 2017, were discussed as well as the Partner visa application. The Delegate concluded the applicant was not in a genuine spousal or de facto relationship with the sponsor.
The review applicant (the sponsor) appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant in Hong Kong over the phone, with the assistance of a Cantonese interpreter, and from family members and a friend of the sponsor who attended the hearing.
The Tribunal advised the sponsor pursuant to s.359AA of the Act, that it had information that would be the reason or part of the reason for affirming the decision under review, and that this information was contained in a full transcript of the applicant’s interview with the Department, and the decision made on 28 November 2013 by the then Migration Review Tribunal to affirm the decision to refuse the applicant a Student Independent Overseas Student (Subclass 880) visa. The sponsor was advised that the information was relevant because it showed that the applicant had provided incorrect information and not been open and honest in her dealings with the Department, and if relied upon, the Tribunal could decide that the information and evidence provided in support of the Partner visa application was similarly not reliable.
The sponsor was advised that when questions were asked or issues raised based on this information he could seek an adjournment to consider his response, and consult with his representative. The sponsor sought and was granted one adjournment during the hearing.
The sponsor was represented in relation to the review by his registered migration agent, who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s immigration and relationship history
The applicant first arrived in Australia in 2003 on a Visitor visa, and stayed, apart from visits to Hong Kong, for 14 years, on various Visitor, Student and Bridging visas, until her departure on 21 February 2017.
She was granted a Student (Subclass 572) visa in 2005, which ceased in 2008. She applied for a Skilled Independent Overseas Student (Subclass 880) visa on 28 August 2007, which was refused on 14 March 2013. During this period she remained in Australia on Bridging visas and, according to the sponsor, mostly without work rights, but working, regardless. The application for a Skilled Independent Overseas Student (Subclass 880) visa was refused on the grounds that the applicant did not meet Public Interest Criterion 4020. She had not provided information about her criminal convictions, in Hong Kong for gambling, and in Australia for soliciting. The applicant appealed to the then Migration Review Tribunal, which affirmed the decision on 28 November 2013.
The applicant applied for an onshore Partner (Subclass 820) visa on 20 December 2013, which was refused on 11 September 2014 on the grounds, according to the sponsor, that the parties had not been in their then claimed de facto relationship for the required 12 months. Further, the applicant did not meet Schedule 3 criteria, as she was not the holder of a substantive visa at the time of application.
As noted, on 27 March 2017 the applicant’s ETA (Subclass 601) visa granted 4 July 2016 was cancelled on the grounds that she did not meet criterion 601.212(a), which requires the holder to genuinely intend to visit temporarily as a tourist. The Delegate noted that the applicant had not previously complied with her visa conditions; that she had spent 178 days in Australia and 39 days outside Australia; and concluded that she was using her ETA as a de facto residence visa. The Delegate further noted that the applicant did not declare her criminal convictions on her application form. The Delegate considered the applicant’s explanation that her son filled it in, and concluded she had provided incorrect information relevant to the visa application.
The applicant has not returned to Australia since her departure on 21 February 2017.
The sponsor declared one previous marriage which ended in divorce in 2000. He has four adult children from this marriage. The applicant declared one previous marriage, from which she has three adult children, born in 1987, 1990 and 1993. Certificates were provided showing that the applicant obtained a divorce from her first husband in 2008, and that he died in 2009.
On their application forms, the applicant and sponsor claimed the applicant has not been in a de facto relationship with a person other than the sponsor. At hearing the sponsor acknowledged that the applicant has been in a long-term de facto relationship with another person. The applicant claimed that this relationship commenced in 2003 and ended in 2007, and was with a man born in China.
The parties claim that they met at the house of a friend of the applicant in July 2012, and entered into a relationship two weeks later. They claim they moved in together in late 2012, and the sponsor proposed marriage in September 2013. They married in November 2014.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the parties were in a genuine spousal or de facto relationship at the time of application and decision.
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.
‘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.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. A copy of a Queensland marriage certificate was provided, certifying that the parties married on 1 November 2014, at Woody Point. 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 spousal relationship met?
Financial aspects of the relationship
Evidence was provided in the form of statements of transactions from June 2014 that the parties have a joint account. The statements show only card entries and transfers to and from other bank accounts. The applicant advised that the joint account was used for savings for the parties’ house purchase, and holidays, and the sponsor advised that he and the applicant maintained their own personal bank accounts. In a written statement provided to the Tribunal the applicant stated ‘we kept some of our other finances separately, including money we loaned to our families and savings in our own bank accounts’, She further stated ‘(the sponsor) knew I couldn’t work and he made enough money to look after us and pay our mortgage on his own’.
Evidence was provided that the parties jointly purchased a property in Brisbane in June 2014, for which they borrowed around $280,000. The parties claim that the applicant contributed $60,000, for the deposit, from her savings. Evidence was provided that the sponsor’s floor tiling business has been registered in both names, but no claim was made or evidence provided regarding any financial contribution by the applicant to the business. The sponsor advised that the applicant provided photocopying and other office assistance.
The sponsor claimed that the applicant chose furnishing for the house, and that she sometimes drew money for things for the house from her own bank account, as well as from the joint account, which he funded by transferring funds from his other accounts. Receipts for some purchases, including curtains, were provided. No further evidence was provided that the applicant has contributed financially to the relationship. The sponsor confirmed at hearing that he has paid the mortgage and the parties’ day-to-day living expenses.
The sponsor confirmed at hearing that he started giving the applicant $350 or $400 each week, in cash, from before they entered into a live-in relationship, and that at the time of decision he continues to deposit $350 a week into her bank accounts. He stated that the applicant, although she worked, did not have work rights in Australia, and so needed his financial support from even before they lived together; that she has not been employed since returning to Hong Kong because at her age she could not find a job; that the certificate in cooking she obtained in Australia was of no use to her in this regard; and that he has supported her financially throughout their relationship.
In a written submission provided to the Tribunal on 10 August 2018 the parties’ representative stated:
We acknowledged that (the sponsor), as the primary breadwinner, has contributed more substantially to costs of their living expenses and mortgage repayments from the early stages of their relationship to present. Accordingly, (the applicant) has not made equal contributions to their marriage from a financial standpoint. However, our clients have confirmed this is attributable to (the applicant) having been unemployed for several years. As noted, (the parties) had discussed using her savings to contribute to the mortgage and other day-to-day household expenses but agreed she should not do this while she wasn’t able to work.
At hearing, however, as noted the sponsor acknowledged that the applicant did work, including in the sex industry, while in Australia on Bridging visas, after 2010, regardless of her work rights.
The Tribunal put to the sponsor information regarding the applicant’s employment and financial situation from her interview in March 2017. The Tribunal reminded the sponsor that this information was summarised in the Delegate’s decision, a copy of which was provided to the Tribunal, and reminded the sponsor also that he could seek time to consider his response and obtain advice from his representative before responding to questions. This information was that the applicant was involved in gambling; had worked in the sex industry in Australia; had amassed significant amounts of money; had transferred over $155,000 to China in the five years 2012 – 2016; and that this coincided with the time he claimed to have been in a relationship. The Tribunal asked the sponsor why, in this case, he provided $350 or $400 in cash every week to the applicant.
The sponsor then acknowledged that the applicant worked in the sex industry from the time he met her and that she was working, he claimed for ‘only one or two days a week’, in Sydney, in 2013, when he claimed they were living together in Brisbane in a mutually committed, exclusive de facto relationship. He claimed this was a ‘transitional’ arrangement. While he acknowledged he knew she was working, he claimed he has never known or cared about her level of income, or how much she had or has in her personal bank accounts, or how much she sent back to Hong Kong. When the Tribunal expressed surprise at this incuriosity, he stated that he cared only about the applicant, and regardless of her income or savings, he saw it as his duty as the man in the relationship to meet her day-to-day living expenses.
When the Tribunal asked the sponsor whether the applicant owned property in Hong Kong he stated that he thought she was struggling to paying some sort of lease on the apartment she lived in with two of her children, and did not think she owned any property. He stated that he knew she had a bank account at HSBC as well as bank accounts in Australia, but was not able to provide even a rough estimate of how much she had in these accounts. He advised, as noted, that she was dependent on his income. The applicant, when asked about her sources of income, confirmed that she is not working in Hong Kong and that the sponsor places $350 a week into one of her bank accounts. She further advised, however, that she owns two apartments in Hong Kong; that she rents out the one she isn’t living in for AUD 600 a week; that she receives income from shares; and that her two children living with her pay rent.
The Tribunal put this to the sponsor, pointing out that this differed from the information that he had provided. The Tribunal advised the sponsor that the Tribunal could draw an adverse conclusion from inconsistent information, namely, that the evidence provided by the parties was unreliable, and they were not in a genuine relationship. The sponsor stated that he believed, based on what the applicant had told him, that her ex-husband was living in her apartment.
In the interview in March 2017 the applicant acknowledged to the Department that she had sent money to Hong Kong, but claimed that this was only on five or six occasions, and was to support her children. She did not dispute information subsequently put to her, however, that she had transferred over $150,000 into Hong Kong bank accounts in her and her children’s names, in over 60 transactions, in the previous five years. When asked at hearing about the source of the money the applicant sent to Hong Kong from 2012 to 2016, the sponsor stated that it was savings from her work in the sex industry, and that her ‘ex-boyfriend’ gave her a large sum of money. When asked about the source and purpose of this money, the sponsor stated that the ex-boyfriend ‘was working’, and gave money to the applicant because he cared for her and knew she needed to support her children.
The parties sought to clarify at hearing that the flow of funds discussed during the Departmental interview was in fact two-way; that around $50,000 was deposited from Hong Kong into the applicant’s Australian bank account in November 2017 by ‘a step-father’ of the applicant’s son, for the purpose of purchasing, in the son’s name, a property at Kangaroo Point.
The Tribunal accepts that the parties have joint assets and liabilities, in the form of their house purchase and the tiling business which is in joint names. No evidence was provided that the parties have provided for each other in Wills, and the Tribunal does not find that one person in the relationship owes any legal obligation to the other. The Tribunal accepts that on occasion the applicant might have drawn from her own bank account to purchase household items, and to that extent, the parties have shared day-to-day expenses. The Tribunal however does not find that the parties have pooled financial resources. The Tribunal finds the fact that the applicant’s properties, shares and savings are in her own name only, to indicate that she is not in a committed relationship with the sponsor.
The Tribunal further finds the sponsor’s real or feigned ignorance and indifference regarding basic aspects of the applicant’s financial situation, that it is reasonable to expect a spouse would be familiar with, namely: how much she earned while working in Australia; her ownership of property in Hong Kong; how much she held or holds in her bank accounts; her investment portfolio of shares; and significant amounts of money given to her by an ‘ex-boyfriend’, and to her son by a ‘step-father’, to indicate that the parties are not in a genuine spousal relationship.
The parties at hearing acknowledged, as noted, that the applicant has not pooled her finances with the sponsor, but claimed that she intends to do so if and when she is granted a Partner visa and secures her residency in Australia. The Tribunal found the parties not to be open and honest in their provision of information regarding their financial situations, dealings and arrangements, and is unconvinced by this claim. The Tribunal further finds the applicant’s claim to intend to pool her finances with the sponsor only if and when she is granted a Partner visa, to indicate that the parties are not in a genuine spousal relationship.
Nature of the household
The Tribunal accepts that the parties lived together from late 2012 until the applicant departed Australia in February 2017; that they have established a household; and that the applicant contributed through her cooking and housekeeping to this household while the sponsor paid the mortgage. The Tribunal accepts, from the statutory declarations and testimony at hearing from family members of the sponsor, that the applicant has cooked for and provided emotional support to the sponsor’s adult children when they have visited or stayed in the house.

The Tribunal however is not satisfied, in light of the lack of pooling of financial resources, and other evidence indicative of a lack of mutual commitment, discussed below, that the contribution made by the applicant to the establishment of a joint household has not been for the purpose of obtaining a migration outcome.
Social aspects of the relationship
Photographs were provided of the parties’ wedding, attended by friends and members of the sponsor’s family. Photos were also provided of the parties together and with friends and family in Hong Kong; on holiday in New Zealand; and in Brisbane.
Statutory declarations were provided by family members and friends attesting that they had observed that the parties resided together; that they had socialised with the parties as a couple; and that they had observed them to be in a relationship. The sponsor’s sons declared that the applicant is ‘part of the family’, and that they ‘don’t want to see her leave’.
The Tribunal accepts that the parties have represented themselves to other people as being married to each other; that they have planned and undertaken social activities as a couple; and that friends and family members support the visa application.
Nature of persons' commitment to each other
As noted, the Tribunal finds that the parties have not pooled their financial resources to a significant extent, and places significant weight on this aspect of the relationship as an indicator of their commitment to the relationship.
At hearing the Tribunal asked the sponsor to provide basic information about the applicant’s children and previous relationships.
When asked how old the applicant’s children were when she left them in Hong Kong to come to Australia in 2003, the sponsor stated that they were all teenagers. Information on the applicant’s application form, however, shows that when she left Hong Kong in 2003 her youngest child was six years old.
The sponsor acknowledged that he stated on his sponsorship application form that the applicant had not been in a relationship with any other person, apart from her first marriage. He acknowledged that this was not correct, but claimed he believed it at the time of application, as the applicant had not told him about her long-term de facto relationship. He stated that he did not know when this relationship started, and he did not know when it ended. When asked when the applicant obtained a divorce from her first husband, he stated that he did not know. He said it was well before she came to Australia; that the man had died; and that the applicant had had to obtain divorce papers after his death in order to settle her affairs. He stated that she left Hong Kong in 2003 after the traumatic experience of finding her then de facto in bed with the housekeeper, and that the applicant told him she came to Australia for the purpose of starting a new life.
The applicant claimed however that she discovered her first husband in bed with the housekeeper in 2003, and the reason she stayed in Australia on successive Visitor and Student visas was because she was so traumatised by this discovery that she could not face returning to Hong Kong. Documents provided at the time of application show she obtained a divorce from her first husband in 2008, and that he died in 2009.
The applicant advised that she was in a de facto relationship from 2003, in Australia, with a person born in China. She claimed that this relationship ended in 2007. When this was put to the sponsor as conflicting with the information he provided, he stated that he didn’t know when the applicant’s de facto relationship began or ended. No convincing explanation was provided by the parties, as discussed above, as to why the applicant’s ‘ex-boyfriend’, or ‘former de facto partner’, or ‘son’s step-father’, gave her significant amounts of money after 2012, and deposited a large sum of money into her Australian bank account for her son’s property purchase in 2017.
The Tribunal found the information provided by the parties about the applicant’s former relationships to be opaque, and the parties not to be open and credible witnesses.
The sponsor’s family members provided testimony, which the Tribunal accepts as sincere, that the sponsor has been happy in the relationship; that he misses the applicant; and that he ‘has retreated back into his shell’ and lapsed into ill-health in her absence. While finding the sponsor not to have been completely open and forthcoming in his testimony, and ill-informed about the applicant’s finances and relationship history, the Tribunal is prepared to accept that the sponsor believes the applicant would sell up, bring her resources to Australia, and settle into a spousal relationship with him if she is granted a permanent visa.
The Tribunal however is not satisfied, having considered the evidence, the immigration and relationship history, and circumstances of the applicant, and considered her testimony (including her claims that the sponsor’s health and mental state is such that he cannot survive without her; that she would provide care for his ‘elderly’ mother; and that the sponsor’s son is lazy and unable to manage the business on his own), that she is committed to the relationship other than as a pathway to a migration outcome; that she sees it as long-term.
When asked what he would do if the visa is not granted, whether he would move to Hong Kong to live with the applicant, the sponsor stated that he would not, because he doesn’t speak Cantonese and his business and home are here. He stated that if the visa is not granted, the relationship will end in divorce. The Tribunal finds this to indicate that the relationship is contingent on the grant of the visa.
The Tribunal accepts that the parties have been in a relationship since late 2012; that they lived together, albeit not consistently, from late 2013 until early 2017; that there is social recognition of the relationship; that the parties have travelled together; and that they have provided companionship and emotional support to each other. The Tribunal however is of the view that this recognition and duration and support has been within a relationship contrived from the outset for the purpose of obtaining a visa, rather than within a genuine spousal relationship.
Having considered and weighed the evidence and the circumstances of the parties, the Tribunal does not find that there is a mutual commitment to a shared life as a married couple to the exclusion of all others, or that the relationship is genuine and continuing.
On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made or the time of this decision.
Therefore the visa applicant does not meet cl.309.211 or cl.309.221.
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Adrienne Millbank
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).

[2018] AATA 3606

23 August 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice