Huang (Migration)

[2023] AATA 407

Huang (Migration) [2023] AATA 407 (28 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kai Huang

VISA APPLICANT:  Ms Huan Su

REPRESENTATIVE:  Mr Sze Lim (MARN: 1687716)

CASE NUMBER:  2101894

DIBP REFERENCE(S):  BCC2019/1609737

MEMBER:Christine Kannis

DATE:28 February 2023

PLACE OF DECISION:  Perth

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

·cl 309.211(2) of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 28 February 2023 at 8:35am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – shared monetary resources and budgeting – planned home purchase – acceptance by families and friends – sponsor’s frequent visits to China – evidence of regular communication – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

Hasran v MIAC [2010] FCAFC 40
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 9 February 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 1 April 2019 on the basis of her relationship with her sponsor, 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 309.211(2) because the delegate was not satisfied that her relationship with the review applicant met the definition of spouse under the Act.

4. A copy of the Decision Record was submitted to the Tribunal by the visa applicant for the purposes of the review.

5. On 19 January 2023, the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act, inviting him to provide evidence of his relationship with the visa applicant at the time of application and time of decision. The invitation advised that if the information was not provided in writing by 2 February 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant did not provide the information within the prescribed period and no request for an extension of time was received. In these circumstances, s 359C of the Act applies, and pursuant to s 360(3) of the Act, the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. On 3 February 2023, the Tribunal advised the review applicant that he had lost his entitlement to appear before the Tribunal. He was also advised that the Tribunal had decided to allow him additional time to provide any further information, failing which it would make a decision based on the information available.

7. On 10 February 2023, the review applicant provided documentation which included but was not limited to statutory declarations, photographs and evidence of money transfers.

8. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the relationship between the visa applicant and the review applicant meets the definition of ‘spouse’ in s 5F of the Act.

11. Section 5F of the Act 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 husband and wife 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the household and the persons’ commitment to each other as set out in reg 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.

12. Clauses 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.   

    Are the parties validly married?

13. A Marriage Certificate (translated) showing the parties married on 17 August 2018 in China was provided. On the basis of the written evidence before it, and in the absence of any evidence to the contrary, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s 5F(2)(a). 

    Background

14. The review applicant is an Australian permanent resident. The visa applicant is a Chinese national. 

15. The parties claim to have met on 30 April 2014 in Chongqing in China and to have maintained contact after the review applicant returned to Australia. In the Application for migration to Australia by a partner, the visa applicant stated that she and the review applicant committed to a shared life together to the exclusion of all others on 1 January 2018. They married on 17 August 2018 in Qingdao, China. The review applicant travelled to China on numerous occasions in 2016, 2017, 2018 and 2019 to visit the visa applicant.  

16. The Tribunal considered the evidence against the reg 1.15A(3) factors.

17. The evidence before the Tribunal included a statutory declaration dated 7 February 2023, made the review applicant (his statutory declaration).

18. In considering the evidence, the Tribunal noted that the parties had provided information which was inconsistent with the review applicant’s Movement Details. This inconsistency was that on the date the parties claim to have met in China, 30 April 2014, the review applicant was in Australia. This information was provided in the review applicant’s statutory declaration and in the Application for migration to Australia by a partner.  The Tribunal invited the review applicant to respond to this adverse information.

19. Prior to making a decision the Tribunal also noted that in his statutory declaration the review applicant stated that he visited the visa applicant in China from January to October 2022. His Movement Details show he departed Australia on 15 October 2021. The Tribunal requested the review applicant provide evidence of where he travelled on 15 October 2021 and where he was located from 15 October 2021 to January 2022.

20. In response the review applicant provided a statutory declaration dated 18 February 2023 in which he conceded that he had provided incorrect information in his statutory declaration and that these were unintentional errors on his part. He provided copies of his passport and stated that the correct date he met the visa applicant was 30 January 2014 and that he visited her from 15 October 2021 to October 2022. The Tribunal accepts the review applicant’s explanation.

    Financial aspects

21. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

22. In the Application for migration to Australia by a partner, the following information was provided:

    Currently the sponsor and the applicant have individual bank account to use to cover their daily expenses. As soon as the applicant is granted her visa and comes to Australia, they will open a joint name account. The sponsor also remits money to
    the applicant to financially support her. They make all financial decision jointly and share their monetary resources.

23. In a statement signed by the parties on 7 December 2020, they said:

    Right now, Huan Su does not have a valid Australian Visa to come in and lawfully stay in Australia. Therefore, it is almost impossible for us to open a joint name bank
    account in Australia. However, that does not mean that we do not have an understanding on how we manage our finances.

    As the man of our household, Kai Huang is the main breadwinner. Very regularly, he

    will remit money to China to Huan Su for her daily living expenses. Whatever money

    that Huan Su may earn from working in China, she keeps and manages for her own

    use and at her own discretion. We do however continue to make financial decisions

    jointly where the decisions affect our financial resources – for example, making a

    significant purchase. We would first discuss whether or not to incur the expenditure

    and if so, how to pay for it. It is only when we agree on the purchase that we would

    go ahead to incur it.

    Otherwise, because we are living in different countries right now, we each have our

    individual bank accounts in our own countries to manage our usual daily living

    expenses. As soon as Huan Su’s visa is granted and she enters Australia to be

    reunited with Kai Huang, they will proceed to open a joint name bank account as soon as practicable.

24. In his statutory declaration, the review applicant said although the visa applicant has always worked in China as a director, as a husband he firmly believes it is his duty to provide for his wife and as such he has regularly transferred money to her. He said they discuss budgeting and large planned expenses with each other. The review applicant said if the visa applicant is granted a visa, they will open a joint bank account in Australia.

25. The evidence before the Tribunal included evidence of money transfers made by the review applicant to the visa applicant during the period from July 2019 to January 2023. No transfers were made during the period from October 2021 to October 2022 as the review applicant was in China.  

26. There is no evidence that the parties pool their financial resources, share day‑to‑day household expenses, have significant joint assets or joint liabilities or that they owe any legal obligations to the other party.  Against this there is evidence of money transfers to the visa applicant 2019, 2020, 2021, 2022 and 2023.

27. The Tribunal accepts that the parties resided in different countries at the time of application and that they had not established joint financial arrangements. The Tribunal finds that the review applicant’s financial support of the visa applicant at the time of application and at the time of decision is indicative of a spousal relationship. Accordingly, the Tribunal gives this factor limited weight.

    Nature of the household

28. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

29. In the Application for migration to Australia by a partner, the following information was provided:

    Currently as the applicant and the sponsor live in different countries, they do not have an established household arrangement. Once the applicant is granted her visa and comes to Australia, she and the sponsor will purchase a unit to live together and they anticipate that they will be able to establish a household arrangement.

30. In a statement signed by the parties on 7 December 2020, they said:

    Because Huan Su and Kai Huang live and work in different countries, they have not

    been able to live together long enough in one place to have an established

    household pattern. When Huan Su has been granted a visa to reside in Australia,

    they plan to purchase a unit and build their life together. By then they would be able to establish a household arrangement.

    In the meantime, and until the onset of Covid19 Pandemic, whenever possible Kai

    Huang would go to China to spend time with Huan Su:

    a. Huan Su would take care of Kai Huang’s daily needs including cooking and

    preparing all meals; tidying; laundry as well as drying the washed clothes; and

    cleaning;

    b. Kai Huang would assist with heavier household chores such as lifting or

    handyman tasks;

    c. They would take every opportunity to do things or chores together such as

    grocery shopping; taking a walk; or taking a meal or coffee together over the

    weekend with or without catching up with relatives and friends.

    Once Huan Su settles into living in Australia, we believe that our established household arrangement will very closely follow similar pattern.

31. In his statutory declaration, the review applicant referred to the closed borders due to COVID-19 and said at the earliest opportunity in 2022 he travelled to China to spend time with the visa applicant. He said he was there from January to October 2022 (as noted, subsequently corrected to October 2021 to October 2022)  and during this time he lived with the visa applicant. He said when they have lived together the visa applicant has been responsible for the cooking, washing and cleaning and he has assisted her with household chores such as vacuuming and sweeping. He said they did the grocery shopping and other errands together.

32. The Tribunal accepts that the parties resided in different countries at the time of application and continue to do so at the time of decision. Given this, the Tribunal gives this factor no weight.

    Social aspects of the relationship

33. The Tribunal considered the evidence in relation to the social aspects of the relationship, including 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 persons plan and undertake joint social activities.

34. In the Application for migration to Australia by a partner, the following information was provided:

    The applicant and the sponsor have known each other since April 2014 and have been known to their families and circles of friends.
    They have all accepted them as a married couple and have invited to social gatherings as such.

35. In a statement signed by the parties on 7 December 2020, they said:

    Huan Su and Kai Huang actually have known each other since 2014. Their circles of

    friends and relatives actually witnessed their relationship developed as they became

    a couple and then eventually married. In other words, Huan Su and Kai Huang have

    long been accepted by their families and friends as a couple and now a happily

    married couple. They are therefore usually invited to attend social gathering or

    events as a couple. Many times, if Kai Huang was in China, he was expected to

    attend any social gathering as Huan Su’s other half.

    Even though Huan Su has not physically met Kai Huang’s friends and relatives here in Australia, nonetheless these friends and relatives are aware that Huan Su is Kai Huang’s wife and accept that they are a happily married couple.

36. A statutory declaration dated 1 February 2019, made by Arthur Naumoski, was provided. Mr Naumoski said he had known the review applicant for 3 years and the visa applicant for 6 months. His reasons for his belief that the parties’ relationship is genuine and continuing included that the review applicant talks about the visa applicant and visits her in China. It appears that Mr Naumoski has not met the applicant in person and has not spent time with the parties as a couple. Given this and the general nature of his reasons for his belief that the parties’ relationship is genuine and continuing, the Tribunal gives this evidence minimal weight.

37. A written statement (translated and certified) dated 19 January 2021 made by the review applicant’s father in support of the genuineness of the parties’ relationship was provided. He  said in August 2018 he held a wedding ceremony for the parties and gave them his blessings for a long life together. He said due to the pandemic, the parties had not been together for more than 2 years. The Tribunal gives this evidence some weight.

38. A written statement (translated and certified) dated 23 January 2021 made by the review applicant’s mother, Ms Wang Ling, in support of the genuineness of the parties’ relationship was provided. She said the parties had not seen each other for a year and they have been missing each other. The Tribunal gives this evidence some weight.

39. A written statement (translated and certified) dated 23 January 2021 made by the visa applicant’s mother in support of the genuineness of the parties’ relationship was provided. She said the parties visited frequently in 2019 and 2020 however due to the pandemic they had not seen each other for a year. The Tribunal gives this evidence some weight.

40. A written statement (translated and certified) dated 23 January 2021 made by the review applicant’s aunt in support of the genuineness of the parties’ relationship was provided. She said whenever the review applicant returned to China, he would bring the visa applicant to visit and they would have meals together. The Tribunal gives this evidence some weight.

41. A written statement dated 7 December 2022 from the review applicant’s assistant parish priest, Father John Pallippadan, was provided.  Fr Pallippadan referred to the parties’ marriage in the review applicant’s hometown and said that the visa applicant could not come to Australia. It appears that he has not met the visa applicant and has not spent time with the parties as a couple. He said they had not given him any reason to doubt their relationship. Given that it appears Fr Pallippadan has not spent time with the parties as a couple and the absence of any persuasive reasons in relation to the genuineness of their relationship, the Tribunal gives this evidence no weight.

42. A statutory declaration dated 7 February 2023, made by the review applicant’s stepfather, Mr Donco Stojanovski was provided. Mr Stojanovski said the review applicant lives with him. He said he knows and welcomes the visa applicant as his step daughter-in-law. He said the parties currently live in different countries but he can verify that they communicate with each other almost daily via WeChat. The Tribunal gives this evidence some weight.

43. A written statement (translated and certified) dated 7 February 2023, made by the review applicant’s mother, Ms Wang Ling, was provided. Ms Ling referred to the death of the visa applicant’s brother and said when the pandemic eased and travel between China and Australia was permitted, the review applicant immediately applied to go to China to be with his wife. She said he stayed over a year and missed his opportunity to apply for citizenship but his wife was of utmost importance. The Tribunal gives this evidence some weight.

44. An undated written statement from the review applicant’s neighbour, Mrs Jean Cooper, was provided.  Mrs Cooper said she found it sad that the review applicant’s wife has not been allowed to come to Australia. It appears she has not met the visa applicant and has not spent time with the parties as a couple. Given this and the absence of any persuasive reasons in relation to the genuineness of the parties’ relationship, the Tribunal gives this evidence no weight.

1. In his statutory declaration, the review applicant said all their friends and relatives in China accept that he and the visa applicant as husband and wife. He said when he travelled to China in 2022, they spent time with family members and friends. In support of this he referred to photographs provided which had been taken during that trip.

2. Photographs of the parties with other people including photographs of their wedding were provided. The other people were indicated to be the visa applicant’s mother and brother and the review applicant’s mother and cousin.  Photographs of the parties’ honeymooning in 2018 were provided. Photographs indicated to have been taken in China in 2022 were provided. They included photographs of the parties with family members and friends engaging in social activities.  The Tribunal gives the photographs some weight as showing that the parties have undertaken joint social activities.

3. The Tribunal has had regard to the statutory declarations, written statements and photographs. As noted, the Tribunal gives some of this evidence minimal weight for the reasons stated however accords some weight to the evidence provided by family members including the parties’ parents. The Tribunal finds that the parties represented themselves to others as being married to each other at the time of application and continue to do so at the time of decision.   

   The nature of the parties’ commitment

4. The Tribunal considered the nature of the persons’ commitment to each other 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.

5. In the Application for migration to Australia by a partner, the following information was provided:

   The applicant and the sponsor knew each other for sometime and was fell in love because they have found each other. They share common values and ideals and are committed to spend their lives together as husband and wife.

6. In a statement signed by the parties on 7 December 2020 they said:

   Kai Huang and Huan Su are genuinely and deeply in love with each other. They have

   know each other since 2014 and were married in August 2018 – about 4 years of

   courtship to test and know that they are meant for each other. Through out all

   these years, they have demonstrated that they are committed to each other despite

   the fact that Covid19 Pandemic has temporarily separated them from physical reunion:

   a .Kai Huang has made frequent trips back to China to visit and be reunited with Huan Su-copies of flights schedules and airline tickets have been uploaded and given to the Department of Home affairs as proof;
   b. Kai Huang has regularly remitted money to Huan Su in China to support her in her daily living expenses – again copies of receipt of these overseas remittances have been uploaded and given to the Department of Home affairs as proof;
   c. Despite the fact that right now there are difficulties in travelling to China because of the Vovid19 Pandemic, Ku Huang and Huan Su have almost daily maintain their contact via social media app like WeChat by messages ;phone calls or video conferences. Screenshots of these contact while they are apart have been uploaded and given to the Department of Home affairs as proof.

7. A written statement (translated and certified) dated 5 February 2023, made by the visa applicant, was provided. She said she and the review applicant have been married for more than 4 years. She said when the review applicant is in Australia they video-chat every day. She said he sends her money for her living expenses. She said the review applicant’s parents are also good to her and she has a harmonious relationship with them. The visa applicant said she feels happy and secure when she is with the review applicant. She said the review applicant has let go of many employment opportunities to be with her often in China. She said he keeps running between two countries. She said their relationship is rock solid and strong.

8. In his statutory declaration, the review applicant said when he and the visa applicant are apart, including when the borders were closed due to COVID-19, he and the visa applicant communicated by WeChat. He said at the earliest opportunity in 2022 he travelled to China to spend time with the visa applicant and was there from January to October 2022 (as noted, subsequently corrected to October 2021 to October 2022). He said he and the visa applicant had known each other for 9 years and had been married for 4.5 years. He said they genuinely love each other and deeply miss each other and long to be together.

9. Evidence of the parties messaging each other in 2020 and in 2022 was provided.

10. Evidence of the review applicant’s travel to China in 2017, 2018 and 2019 was provided. The review applicant’s Movement Records show that he also frequently departed Australia in 2018 and in 2019.

11. The Tribunal accepts that the parties have been married for more than 4 years. The Tribunal accepts that the review applicant provided financial support to the visa applicant at the time of application and continues to do so at the time of decision. The Tribunal accepts the evidence that the parties maintain regular contact with each other. The Tribunal gives some weight to the evidence of the nature of the persons’ commitment to each other.

    Conclusion

12. Having regard to all of the evidence, the Tribunal finds that the parties are validly married, as required by s 5F(2)(a) of the Act and that since their marriage, they have lived together for several days.

13. Although the Tribunal has some concerns regarding the evidence provided in relation to the social aspects of the relationship, these are outweighed by the other evidence in relation to the financial aspects of their relationship and nature of the parties’ commitment.

14. The Tribunal finds that at the time of application and at the time of decision the parties were and remain in a committed long-term relationship. In making this determination the Tribunal places weight on the length of the relationship and notes that the parties have been married for more than 4 years.  The Tribunal also places weight on the review applicant’s frequent travel to China and in particular his extended stay from October 2021 to October 2022 as demonstrating the nature of the parties’ commitment to each other.  

15. Having regard to all of the evidence, the Tribunal concludes as follows:

    • The parties are married to each other under a marriage that is valid for the purposes of the Act;
    • They are not living separately and apart on a permanent basis;
    • They have a mutual commitment to a shared life together to the exclusion of others; and
    • The relationship is genuine and continuing.

16. 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 and the time of this decision.

17. Therefore, the visa applicant meets cl 309.211(2) and cl 309.221.

18. 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.

    decision

19. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211(2) of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    Christine Kannis
    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).