Huang (Migration)

[2019] AATA 5720

Huang (Migration) [2019] AATA 5720 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss SiJia Huang

CASE NUMBER:  1828708

HOME AFFAIRS REFERENCE(S):          BCC2017/905260

MEMBER:Steven Griffiths

DATE:6 December 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 06 December 2019 at 1:56pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – joint names account – share responsibility for housework – joint social activities – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

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

2. The applicant applied for the visa on 8 March 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.

4. The applicant appeared before the Tribunal on 6 December 2019 to give evidence, respond to questions and present arguments, with the sponsor also providing oral evidence.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence in the Department of Immigration file and Tribunal file and the oral evidence from the Tribunal hearing.

   ISSUE

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

   BACKGROUND OF THE EVIDENCE

8. Ms. Huang was born in Shanghai, China, in 1990. Her parents, born 1958 & 1964, live in China. She arrived in Australia in August 2012.

9. Mr. Sun was born in Shanghai, China in 1983. His parents, born 1947 & 1954 live in China. He arrived in Australia on January 2010.

   INFORMATION TO THE TRIBUNAL

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

    Wedding Ceremony Contracts, not translated

    Tax invoice for wedding celebration security bond, not translated

    Applicant statement, 02/12/19

    Screenshots of IMMI account – applicant noting did not receive emails for more information

    Sponsor statement, 28/11/19

    Applicant statement of “Love Story”, 02/12/19

    Australian Certificate of Marriage, 12/3/19

    Form 888 Statement, Hongjun Wu, 03/12/19

    Form 888 Statement, David Morgan, 03/12/19

    Westpac, joint name account opened, 8/10/18

    Westpac, joint name account, Statement 08/10/18 to 08/10/19 

    Tickets from joint social activities

    Flight and accommodation bookings

    Evidence of gifts to each other

    Bank Transfer by sponsor records

    Individual accounts of applicant and sponsor – demonstration of resident address

    28 photos from 2014 to 2019, including wedding Australia and China

    Receipts from Australia and China from purchases / costs of wedding

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

11. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen. The Tribunal accepts the documented evidence of the sponsor becoming an Australian permanent resident in 2012.  

    Whether the parties are in a spouse or de facto relationship

12. ‘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).

13. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

14. At the time the visa application was made the parties were engaged, with the applicant later providing to the Tribunal an Australian Certificate of Marriage as evidence of their marriage on 12 March 2019 in Adelaide.

15. The parties provided documents, photographic and oral evidence, with the Tribunal accepts, of the parties marrying in Shanghai, China, on 3 November 2019, with 200 family and friends attending.   

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

    CLAIMS AND FINDINGS

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

    (i)any joint ownership of real estate or other major assets; and

    (ii)any joint liabilities; and

    (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)the basis of any sharing of day‑to‑day household expense

17. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, no real estate or other major assets was or is jointly owned by the parties. 

18. The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.

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

20. The Tribunal accepts the oral evidence of the applicant graduating from University South Australia in March 2017 as a nurse.  

21. The Tribunal accepts the documented and oral evidence of the sponsor being the joint owner / operating since July 2015 of a travel business in Adelaide.  

22. The Tribunal accepts the oral evidence of the parties and witness of the parties living since July 2014 in the home of the sponsor, for which the sponsor has accepted responsibility for the payment of services and costs of the home, with the applicant contributing to food and consumables costs.   

23. The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of the joint bank account operated since October 2018 to which both parties deposit funds, to pay for commitments such as household and entertainment costs, and determines, at the time of this decision, the joint account confirms the pooling of financial resources in relation to major financial commitments and the sharing of day-to-day household costs. 

24. The Tribunal accepts the documented and oral evidence of the parties, confirmed independently, of the sponsor retaining a personal bank account in to which income is deposited and from which the transfer funds to the joint bank account is done as required and determines, at the time of application and this decision, the transfers from personal accounts to represent the pooling of financial resources and the sharing of day-to-day household expenses.

25. The Tribunal accepts the documented and oral evidence of the parties of the applicant retaining a personal bank account, which is rarely used as income the applicant receives is deposited in the joint names account, and determines this to represent the pooling of financial resources and the sharing of day-to-day household expenses. 

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

    (i)any joint responsibility for the care and support of children; and

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework

26. The Tribunal accepts the oral evidence from the parties of wishing to have two children in their family, they do not have children at this time and do not have any responsibility for the care and support of children.  

27. The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have lived together since July 2014 in Adelaide.

28. The Tribunal accepts the documented and oral evidence of the parties of their home including a granny flat, which has been rented for 3 years by a mother and daughter, and that from 2011 to mid-2019 they rented a bedroom in the main house to a close friend, who works for the sponsor at a Café he owns in McLaren Vale, but are now living alone.  

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

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

    (i)whether the persons represent themselves to other people as being married to each other; and

    (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)  any basis on which the persons plan and undertake joint social activities

30. The Tribunal accepts the photographic, documented and oral evidence and determines at the time of application and this decision that the parties were married on 12 March 2019 in Australia and 3 November 2019 in Shanghai, China, and represent themselves to other people as being married to each other. 

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

32. The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, and determines, at the time of application and this decision, the parties plan and undertake joint social activities.

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

    (i)the duration of the relationship; and

    (ii)the length of time during which the persons have lived together; and

    (iii)the degree of companionship and emotional support that the persons draw from each other; and

    (iv)whether the persons see the relationship as a long‑term one.

33. The Tribunal accepts the evidence of the parties meeting in March 2014, committing to each other in July 2014 and marrying in March 2019.    

34. The Tribunal accepts the photographic, documented and oral evidence that the parties have lived together in Adelaide from July 2014.

35. The Tribunal accepts the documented and oral evidence of the parties of the issues they have dealt with and the support provided to each other in getting through these issues and determines, at the time of application and this decision, that companionship and emotional support is provided by each of the parties.

36. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other and see the relationship and marriage as being long-term.

37. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.

38. The Tribunal accepts that the parties have been in a committed relationship since July 2014, engaged in December 2018, married in March 2019 in Australia and November 2019 in China and determines, at the time of the application and this decision, the parties live together.  

39. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and this decision. The Tribunal is further satisfied that the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

40. The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c), and as she was the holder of a substantive visa at the time of application, cl.820.211(2)(d) does not apply. Accordingly, the applicant meets cl.820.211(2). The applicant continues to meet these requirements at the time of decision and therefore meets cl.820.221(1). 

41. 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

42. 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

    Steven Griffiths
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).