Huang (Migration) - [2021] AATA 5004

Huang (Migration) [2021] AATA 5004 (24 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Zijun Huang
CASE NUMBER:  1923386
HOME AFFAIRS REFERENCE(S):          BCC2018/3812849
MEMBER:Maxina Martellotta
DATE:24 November 2021
PLACE OF DECISION:  Perth
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(2) of Schedule 2 to the Regulations
·cl 820. 221(1) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 24 November 2021 at 9:52am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – applicant is in a genuine relationship – parties validly married at the date of the decision – genuine and committed relationship at the date of decision – credible and honest witness – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss, 5, 65
Migration Regulations 1994 (Cth), rr 1.09, 1.15A, 2.03A, Schedule 2, cls 820.211, 820.221
CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Li v MIAC [2007] FMCA 454
MIEA v Pochi (1980) 4 ALD 139
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant Ms Huang applied for the visa on 18 June 2018 on the basis of her relationship with her sponsor Mr Fong. 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2). The delegate was not satisfied that at the time of the application Ms Huang and Mr Fong were in a defacto relationship.
The applicant appeared before the Tribunal on 9 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Fong.[1]
[1] He was not present when Ms Huang gave her evidence.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether Ms Huang…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Huang (Migration)

Details

AGLC: Huang (Migration) [2021] AATA 5004
Case: [2021] AATA 5004
Decision Date: 24 November 2021

CaseChat Overview and Summary

This matter concerned an appeal by Ms Huang against a decision by the Migration Review Tribunal regarding her Partner (Temporary) (Class UK) visa application, subclass 820. The primary dispute before the Tribunal was whether Ms Huang and Mr Fong were in a genuine and continuing de facto or spouse relationship at the relevant times as required by the Migration Act 1958 (Cth). The Tribunal was constituted by a single member, Maxina Martellotta.

The legal issues before the Tribunal were whether Ms Huang satisfied the criteria for a de facto relationship at the time of her visa application and whether she satisfied the criteria for a spouse relationship at the time of the decision. These criteria are defined in sections 5CB and 5F of the Act respectively, and require, among other things, a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and that the couple live together or do not live separately and apart on a permanent basis. The Tribunal was required to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other, as outlined in regulations 1.09A(3) and 1.15A(3).

The Tribunal found that while Ms Huang and Mr Fong were validly married at the time of the decision, they were not married at the time the visa application was made. Consequently, they could not satisfy the spouse relationship criteria at the time of application. However, the Tribunal considered the evidence regarding their de facto relationship prior to their marriage. It found that they had known each other since 2014, commenced dating in 2015, and began living together in 2016, with this arrangement becoming permanent by July 2018. The Tribunal noted the significant emotional support they provided each other, particularly during Mr Fong's health issues, and their representation of themselves as a couple to friends, family, and colleagues since 2015. The Tribunal also considered their financial arrangements, including Ms Huang's co-directorship of Mr Fong's companies and her beneficiary status in a discretionary trust established by him.

Based on its findings, the Tribunal concluded that the matter should be remitted for reconsideration. This indicates that while the specific requirements for a spouse relationship at the time of application were not met, the Tribunal likely found that the de facto relationship criteria at the time of application were met, and that further consideration of the spouse relationship criteria at the time of decision was warranted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether Ms Huang and Mr Fong are in a genuine defacto or spouse relationship.Whether the parties are in a spouse or de facto relationship Clause 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 Ms Huang says that at the time of the visa application she was the defacto partner of Mr Fong. She also says that since then as of the date of decision she is the spouse of Mr Fong 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). 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2). In forming an opinion whether they are in a de facto or married relationship consideration must be given to all 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 reg 1.09A(3) (for de facto) and reg 1.15A(3) (for spouse) which are attached to this decision. Each of the specific matters contained in reg 1.09A(3) /1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206. Ms Huang and Mr Fong were married on 16 July 2021. The applicant submitted a certified copy of a Marriage Certificate issued by the Registrar of Births, Deaths and Marriages for Western Australia dated 16 July 2021. The certificate records that the parties were married on that date at the Registry of Births, Deaths and Marriages, Perth, Western Australia. This is consistent with the oral testimony provided at hearing. The tribunal is satisfied and finds that 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) at the time of decision. While the parties were validly married at the time of decision, the parties were not validly married to each other under a marriage that is valid for the purposes of the Act at the time the application was made. Accordingly, they cannot satisfy an essential requirement of a spouse relationship but may meet the time of application criteria based on being in a de facto relationship as defined in s.5CB of the Act.

Decision

Reasons for decision

They want to build a financial future together in a way that manages risks and protects any wealth generated through business interests.Are the criteria for a defacto relationship the time of application and are the criteria for a spousal relationship at the time of decision been met? The tribunal makes the following findings of fact:Financial aspects of the relationshipa)Ms Huang and Mr Fong:· do not jointly own any real estate or other significant assets· do not pool financial assets· do not service any joint liabilities· meet household expenses such as contributions to groceries from their respective accounts.b)Ms Huang·has access to Mr Fong’s bank account details and can make transactions on his behalf·is a co-director of private companies established by Mr Fong.c)Mr Fong· pays for their mobile phones· has established a discretionary trust in which Ms Huang as his spouse is a beneficiary.Nature of the householda)Ms Huang and Mr Fong:·since 2016 have shared accommodation with Mr Fong’s parents·since July 2018 the living arrangement became permanent·have shared a bedroom and amenities since starting this arrangement in mid-2016·contribute to the household tasks such as cleaning, gardening, shopping together with Mr Fong’s parents·they do not intend to change this arrangement (living with Mr Fong’s parents) in the future for cultural and also practical reasons. Social Aspects of the relationshipa)Ms Huang and Mr Fong:·have represented themselves as coupled to friends, colleagues and family since they started dating in 2015.·they married in July 2021 and represent themselves as spouses.·have represented themselves as partnered to government agenciesa)Friends and acquaintances have expressed the opinion that Ms Huang and Mr Fong have been in a genuine defacto and now married relationship as evidenced by the statutory declarations and statements provided by third parties describing their relationship.b)Ms Huang and Mr Fong have planned and undertaken social activities as members of a couple. They spend time together as a family unit, socially and with family and friends. They celebrate and plan major milestone events and occasions together and are invited to attend events or social occasions as a couple.The nature of their commitment to each othera)Ms Huang and Mr Fong:·first met in May 2014 and started dating in 2015·commenced living together from about May/June 2016 this arrangement became permanent in about July 2018·have known each other for about seven and half years. They have provided companionship and support to each other since recognising their personal relationship in January 2015.·describe their relationship as long term and see their future as building a family and a secure financial future ·were married on 16 July 2021.b)Ms Huang provided Mr Fong significant support and care during his health crisis and continues to provide him with support particularly as he undertakes various entrepreneurial endeavours.c)Mr Fong provides Ms Huang emotional support and companionship. He gave the example of when her application was refused in 2018, he provides support and comfort to his wife during times of uncertainty and stress. Other findings of facta)Ms Huang and Mr Fong are not related by family they are both over the age of 18 years.b)Prior to her application Ms Huang was granted a Skilled Regional Sponsored (Provisional) Visa (489).

Ratio Decidendi

Legal Principle Established

The Tribunal has had regard to the evidence provided in relation to the nature of the parties’ commitment to one another including the duration of the 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. Duration of the relationship Ms Huang and Mr Fong’s evidence is that they have known each other since May 2014, they started dating in January 2015 – since then their relationship has developed to the present day as a married couple.Length of time they have lived together Ms Huang and Mr Fong’s evidence is that following Mr Fong’s first hospitalisation and surgery in 2016 they started living together. Initially this was on the basis of Ms Huang spending days and nights with Mr Fong whilst she still had a home with her aunt, but this arrangement increased until by July 2018 it was apparent she was in effect living full time with Mr Fong and this was when Ms Huang formally changed all her identification and address notifications to reflect this.Emotional support they draw from each other Ms Huang told the tribunal that her relationship with Mr Fong deepened when he had his first surgery in 2016. She said she realised that at this point the depth of her feelings and commitment to him. She says that Mr Fong provides her with companionship and understanding. Mr Fong told the tribunal that Ms Huang provided him support and care following his initial health scare and again when he required subsequent surgery. They consult and support each other in their respective business interests and pursuits. Ms Huang has been an important part of his and his family’s life and has supported him during other significant events such as his grandparent’s funeral. Ms Huang is also very important as a person with whom he can discuss stresses and concerns he has about his work and business. She is very understanding has insights which helps him gain perspective on issues. Ms Huang and Mr Fong told the tribunal that they both come from conservative families. Initially Mr Fong’s parents who are Christian has reservations about them living together without being married however when they saw how she supported and cared for their son that became less of an issue. Ms Huang told the tribunal that they have spoken about what would happen if she had to go back to China for a period of time. She said that this would be very difficult for their relationship. Mr Fong may move to China to be with her but it is uncertain. She said it is hard to say because they have spent every day with other for so long it would be very emotional for them to be separated.Whether they see the relationship as long-term Ms Huang and Mr Fong said that they made the decision to get married in part due to COVID-19. They felt it was important that the make the commitment particularly given the uncertainty of the pandemic and it was important that Ms Huang’s parents could see that she was married and settled in case something happened to a member of the family.