HUNG (Migration)

[2020] AATA 2465

HUNG (Migration) [2020] AATA 2465 (27 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SAU CHUNG HUNG

CASE NUMBER:  1724980

HOME AFFAIRS REFERENCE(S):          BCC2016/1969098

MEMBER:Helena Claringbold

DATE:27 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 27 March 2020 at 11:54am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – adjournment request declined – care for ill mother – genuine spousal relationship – financial aspects – nature of household – social aspects – represented themselves as married couple – joint social activities – commitment to each other – sponsor failed to attend Tribunal hearing – inconsistent evidence – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 7 June 2016, Ms Sau Chung Hung, also known as, Xiucong Hong and Lissa Hong, the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on her spousal relationship with Mr Georgios Savvidis, the sponsor.

2. On 10 October 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor are genuine spousal partners. Therefore, the applicant did not meet cl.820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 13 October 2017, the applicant provided the Tribunal with a copy of the delegate’s decision. This is a review of the delegate’s decision.

3. On 24 October 2019, The Tribunal wrote to the applicant and invited her to a Tribunal hearing on 22 January 2020.  She was advised that Mr Georgios Savvidis, should also attend the Tribunal hearing.  On 25 October 2019, the applicant confirmed that she and Mr Savvidis would attend the Tribunal hearing of 22 January 2020.

4. On 22 January 2020, the applicant appeared before the Tribunal to give evidence and present arguments. Mr Savvidis did not attend the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. After taking evidence from the applicant, the Tribunal told her that it wanted to take evidence from the sponsor about the parties’ relationship. The Tribunal adjourned the Tribunal hearing and scheduled another Tribunal hearing, in order to take the sponsor’s evidence. The applicant was represented in relation to the review by her registered migration agent.

5. On 14 February 2020, the Tribunal wrote to the applicant and invited her to a Tribunal hearing on 16 March 2020. She was advised that Mr Georgios Savvidis should also attend the Tribunal hearing. On the 24 February 2020, the applicant requested an adjournment of the Tribunal hearing set down for 16 March 2020.  She stated that she needed to travel to care for her ill mother. On 25 February 2020, the Tribunal advised the applicant as follows: that after consideration, the Tribunal hearing of 16 March 2020 would proceed as scheduled. However, on reflection the Tribunal would take the sponsor’s evidence with him appearing before the Tribunal in Sydney and the applicant could attend the Tribunal hearing and provide her evidence by telephone. The Tribunal requested that the applicant provide her contact details. On 2 March 2020, the applicant’s migration agent advised that the applicant and the sponsor would attend the Tribunal hearing.

6. On 16 March 2020, the applicant appeared before the Tribunal to give evidence and present arguments. Mr Savvidis did not attend the Tribunal hearing. The applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence at the Tribunal hearings.

   ISSUE

9. The issue in the present case is whether, the applicant is the spouse of the sponsor as defined in s.5F of the Migration Act 1958 (the Act).

   BACKGROUND ON THE EVIDENCE

10. The applicant was born in 1953 in Quanzhou, Fujian, China. Her father is deceased. Her mother and siblings live in China. On 1 January 1970, she married Mr Liutong Yang. On 15 January 1977, Mr Yang died. There are two children from this relationship, born in 1971 and 1974. The two children reside in China. On 28 February 1996, the applicant married Mr Wenbo Shi. On 4 January 2015, Mr Shi and the applicant divorced. There are no children from this relationship. The applicant entered Australia on 11 September 2014 as the holder of a visitor visa.  Her usual country of residence was Hong Kong.

11. The sponsor was born in 1952 in Greece. On 1 February 1998, he entered Australia. On 26 January 2008, he was granted Australia citizenship. His parents and one sibling live in Australia. On 1 October 1977, he married Mrs Stella Savvidou.  On 4 February 1999, Mrs Savvidou died. There are two children from this relationship, born in 1978 and 1980. The two children reside in Greece. On 15 March 2008, he married Mrs Maria Mihalapoulos. On 22 November 2010, Mrs Mihalapoulos and the sponsor divorced. There are no children from this relationship.

12. On 13 September 2014, the parties met through a mutual friend at a restaurant in Chinatown, Sydney. On 21 January 2015, the applicant entered Australia and met regularly with the sponsor and their mutual friend. The applicant then departed Australia again. On 9 March 2016, the applicant returned to Australia and the parties began a relationship as boyfriend and girlfriend. On 28 May 2016, the parties married in Hurstville, New South Wales and commenced living together in the sponsor’s unit in Wiley Park, New South Wales.

    Are the parties validly married?

13. At the time the visa application was made, the visa applicant provided evidence of her marriage to the sponsor. 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 parties in a spousal relationship?

14. ‘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) of the Act.

    CLAIMS AND FINDINGS

    Are the other requirements for a spousal relationship met?

15. On 24 October 2019, the Tribunal wrote to the applicant and invited her to a Tribunal hearing on 22 January 2020. The applicant was advised of the following: in assessing her matter the Tribunal must consider either r.1.09A (de facto relationship) or r.1.15A (spouse relationship) of the Migration Regulations. Regulations 1.09A and Regulation 1.15A provide that the Tribunal considers all the circumstances of the parties’ relationship including: the financial aspects of the relationship; the nature of the household; the social aspects of the relationship and the nature of the parties’ commitment to each other. The applicant was provided with a guide to the type of information that may be provided and told that it was not a definitive list.

16. 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 sponsor’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision.

    The financial aspects of the parties’ relationship

17. The parties’ do not have any joint ownership of real estate or other major assets or any joint liabilities or any pooling of financial resources, especially in relation to major financial commitments and other than their joint bank account, they do not owe any legal obligation in respect of each other. The sponsor’s income is derived from his salary and a government payment. The applicant’s income is derived from her salary. The sponsor does not have any financial assets. The applicant’s owns an apartment in China and another apartment in Hong Kong.

18. Banking documents include joint bank transaction lists for October 2017 and 2019 and joint bank statements dated 2016 to 2019. The documents record various cash deposits and debits with ad hoc debits transactions noted as being for the applicant or sponsor. Some debit transactions are noted as ‘rent’, or ‘Gold Coast’. Otherwise the documents are unremarkable in the sense of informing about the parties’ financial matters. The sponsor’s bank statement in 2017 recorded a disability support pension paid to him. Cash receipts for rental payments paid in cash are issued in the parties’ names and are without any identification of the author. Another receipt dated April 2019 is issued to the applicant. Tax documents are unsigned by the parties and the agent and there is no evidence of them being lodged with the Australian Tax Office. As a result of this and the credibility concerns the Tribunal has about the applicant, as detailed below, the Tribunal places no weight on these documents. Medibank documents include membership cards in joint names dated January 2018, a remittance advice is in the applicant’s name and details of premium payments dated October and December 2019 and January 2020 and a remittance advice dated October 2019 in the sponsor’s name.

19. At the Tribunal hearing of 22 January 2020, the applicant stated the following: that a $15,000 telegraphic transfer addressed to the parties’ joint bank account was from her daughter for the applicant’s travel and expenses. The sponsor gives her $250 in cash for the rent payments. She deposits this into the joint bank account and pays the rent from the joint bank account. When money is available she contributes to the joint bank account and they both pay for shopping. She then stated that, the parties only put money into the joint bank account when the parties need to spend. The sponsor pays for the rent and they both pay for the shopping. She didn’t know how much money the sponsor had in his bank account because he didn’t tell her. However, he received $720 fortnightly from Centrelink. She has the following bank accounts: a Commonwealth bank account with $5,000 in it; an HSBC bank account with $40,000 in it; another bank account in Hong Kong with $10,000 in it and a Bank of China account with RMB140,000 in it. Her mother lives in a three bedroomed apartment in China, which the applicant purchased 10 years ago. It is valued at RMB 3 million. She also owns a three bedroomed apartment in Hong Kong, which she purchased six years ago.  Her daughter and her husband and two children live in this apartment.  It’s valued at HK$5 million.

20. At the Tribunal hearing of 16 March 2020, the applicant stated the following: that because the sponsor didn’t inform Centrelink about the parties’ relationship he is in debt to Centrelink for $17,300. She went to Centrelink to pay $10,000 off the debt but they wouldn’t accept the payment from her.  She then gave the sponsor the $10,000 to pay Centrelink but he lost it gambling. He then demanded that she give him $17,000 to repay Centrelink. The sponsor receives a Centrelink benefit and is not supposed to work.  He was angry at her because she had given evidence to the Tribunal that he did work. She provided the Tribunal with two Centrelink letters addressed to the sponsor. One letter is dated 29 January 2018; this recorded the sponsor’s disability support pension from 18 January 2018 to 31 January 2018 as $493.22. The payment comprised of a disability support pension of $486.65, plus an energy supplement of $10.60, plus a pension supplement of $50,00, plus rent assistance of $43.35 and less a lump sum advance repayment of $97.40. The other letter is dated 29 October 2018, this recorded that the sponsor’s regular age pension payment from 9 November 2018 would be $711.05. This included an age pension of $629.00, plus an energy supplement of $10.00, plus a pension supplement of $51.50, plus rent assistance of $40.35 and less a debt repayment of $20.00.

21. The Tribunal accepts the following that the parties have a joint bank account and rental receipts have been issued in joint names. The parties previously had joint Medibank membership cards and other documents were issued to them individually. The sponsor received a disability support pension and an aged pension. The Tribunal does not accept that the applicant is credible. She made unsubstantiated claims about the sponsor having a $17,000 debt with Centrelink resulting from him not advising it of the parties’ relationship.  She claimed that she unsuccessfully tried to repay the $10,000 off the debt and that she then gave the $10,000 to the sponsor and he demanded another $17,000. The Centrelink letters recorded that the sponsor, at the time of the letters in 2018, was repaying a debt of some description. However, no information has been provided on the letters about the reason for the debt or about any work restrictions relating to the sponsor’s Centrelink payments.

22. Other than the Centrelink letter dated 2018, the Tribunal does not have any evidence from the sponsor about the financial aspects of the parties’ relationship since September 2017, including rent and utility payments or the purchase of groceries. Overall, on the evidence before it, the Tribunal does not accept that the parties share day-to-day household expenses because the sponsor has not provided any oral evidence to support that they do.

    The nature of the parties’ household

23. The parties do not have any joint responsibility for the care and support of children. In their statements of September 2017, the parties claim that after they married they began living together at a Wiley Park address and in February 2017, they moved to a Belmore address. The sponsor stated that the applicant often goes with him to see his mother, who is in a nursing home and she is mostly responsible for household chores. He receives a pension payment from Centrelink and also works part time as a chef. The applicant stated the following: the sponsor is retired but still works as a chef part-time. He is responsible for the parties’ daily expenses.

24. The applicant provided one page of a residential tenancy agreement starting on 5 February 2017 and ending on 4 August 2017 for the Belmore address with a weekly rent of $180. Cash receipts dated from June 2017 to July 2019 are issued jointly and claim to be for rental payments for the Belmore address. A letter dated December 2019, claiming to be from the landlord, stated the following: the parties have lived at the Belmore address since February 2017. The receipts and letter are without any identification of the author. Another receipt dated April 2019 is issued to the applicant. A joint bank transaction list dated January to June 2019 is without an address. A joint bank transaction list dated October 2017 and a joint bank statement dated December 2016 to June 2017 are addressed to the Belmore address.  Other ad hoc documents are addressed either to the applicant or the sponsor or the parties at the Belmore address.

25. At the Tribunal hearing of 22 January 2020, the applicant stated the following: that on 28 May 2016, she moved in to live with the sponsor at a Lakemba address but she couldn’t remember the address. The rent at the Lakemba address was $180. The parties moved to their current Belmore address at the beginning of 2017. The sponsor works on a casual basis.  In the week prior to the Tribunal hearing of 22 January 2020, the sponsor worked two days. The sponsor pays the rent, which includes phone and electricity and they both pay for the groceries. The parties have not lived anywhere else together. She is currently employed in Chinatown practising Chinese Medical massage.  She has worked for the same company for one and a half years. Her usual working days are Monday, Tuesday and Friday.  On these days she starts work at 11:00am and finishes work at 6:30pm but it sometimes it can be 8:00pm.  Previously she worked for one year in a dry cleaning shop as a casual worker.

26. At the Tribunal hearing of 22 January 2020, the Tribunal put information to the applicant under s.359AA of the Act. The Tribunal told the applicant the relevance and consequence of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so.  The applicant responded at the Tribunal.  The information put to the applicant is as follows: follows:

    ·Ms Siomina told the Tribunal the following: that she lives at the same property as the parties. The parties have one bedroom in the main house which has a total of five bedrooms, with four of the bedrooms occupied by single people. She lives in the granny flat at the back of the main house.  It has three bedrooms. She and her husband moved into one of the bedrooms two years ago. A gentleman named Chung moved into another bedroom one and a half years ago and the third bedroom is empty. This information was put to the applicant as it was inconsistent with her evidence that: the main house has four bedrooms and the parties rent one of the bedrooms.  At the back of the house there are two bedrooms. Ms Siomina moved into one of the rooms two years ago.  The other room is empty most of the time.

27. The applicant responded at the Tribunal hearing and stated the following: the (main) house has five bedrooms but one of the bedrooms is not used as a bedroom because the landlord stores his property in it. The back of the (main) house looks like a garage. A boy lives in one of the rooms but she rarely sees him. Another room is used for storage.

28. The Tribunal considers it reasonable for the applicant to be able to provide consistent evidence about her residence of more than three years with that of her neighbour of two years. She provided inconsistent evidence to that of the witness about the number of bedrooms in the main house and the back of the house and about the tenancy of the accommodation at the back of the house.

29. The Tribunal accepts the following: that correspondence has been addressed to the parties jointly and individually at the at the Belmore address. Bank documents record various cash deposits with ad hoc transactions noted as being from the applicant or the sponsor. Cash receipts are recorded in the both parties’ names. The applicant provided inconsistent information about the accommodation at the Belmore address. The letter claiming to be from the landlord and rental receipts have been given without any identification. She was unable to provide an address in Liverpool where she claimed the parties lived.  She did not give any oral evidence to the Tribunal about the parties living in Wiley Park, as was previously claimed and no independent information has been provided about that the parties living there. The Tribunal considered Ms Siomina’s oral evidence about seeing the parties almost daily and seeing them living cooking and shopping together.  It also considered that in 2020, Ms Xiao stated that the applicant reminds the sponsor to take his medication.  She massages him and cooks for him. The witness statements do not outweigh the Tribunal’s concerns about the applicant’s credibility or the lack of oral evidence from the sponsor. The last evidence the sponsor provided about the parties’ household is dated September 2017 and the sponsor has not provided any oral evidence to the Tribunal about any aspect of the parties’ household. On the evidence before the Tribunal, it does not accept that the parties shared living arrangements as they claim or that they share the responsibility of housework.

    The social aspects of the parties’ relationship

1. In her statement dated September 2017, the applicant stated the following: that the parties go to the beach or the park, have dinner, go shopping and to the club and the sponsor gave her flowers. In the evening of their marriage, the parties celebrated by inviting friends to dinner. The parties plan to go to Hong Kong and the sponsor has promised to take the applicant to Greece. Travel documents for the parties record them departing on 26 March 2018 to Hong Kong.  The sponsor returned to Australia on 28 March 2018. A hotel receipt in the parties’ names is from 26 March 2018 to 27 March 2018.

2. At the Tribunal hearing of 22 January 2020, the applicant stated the following: the parties go on holidays to the Blue Mountains, the Gold Coast and Brisbane. When the applicant’s daughter was in Australia, she purchased various trips for the parties and flight tickets for the Brisbane trip. In 2018, the parties travelled to Hong Kong. The sponsor was going to apply for a visa to visit China and meet the applicant’s mother. However, the sponsor returned after two days because his mother was sick.  In 2019, the parties travelled to Hong Kong.  However, he returned to Australia after four days because his mother was sick. The Tribunal notes that at another part of the Tribunal hearing of 22 January 2020, the applicant stated that the sponsor had met her mother. Sometimes they meet with friends and eat out when her relatives visit from Hong Kong.  Prior to Christmas 2019, the parties attended a work function with work colleagues from the dry cleaning company she used to work for. The parties met female work colleagues Liu and A Zhen.

3. Third party statements have been considered and are summarised as follows: In 2018, Mr Zhang, a friend of the sponsor, stated that he met the applicant two years ago. He meets the parties almost every week for yum cha or coffee. In 2019, Ms Xiao, a friend of the parties stated that she met them in a restaurant in China Town in 2014 and sees them almost twice weekly. The sponsor has brought the applicant to see his mother in a nursing home and the applicant has brought the sponsor to Hong Kong to meet her family.  In 2020, Ms Xiao stated that she met the parties in 2014.  She sees the parties’ fortnightly for a family meeting or a week end dinner and also in local clubs. The parties have lived together since 2016. They have visited Hong Kong and visited family members, including the applicant’s mother and daughter and she has witnessed this by seeing photographs. The parties have inspected various properties as they want to buy an apartment in Sydney. The applicant reminds the sponsor to take his medication.  She massages him and cooks for him. At the Tribunal hearing of 22 January 2020, Ms Xiao stated the following: she has been a friend of the parties for over six years. The applicant is a warm, gentle and kind lady. She sees the parties every two to three weeks.  She goes to their home or the club and has travelled with them. The parties are keen to buy a property in Sydney.

4. Ms Siomina, in 2019, stated that she is a house mate of the parties stated and that she lives in the granny flat in the backyard and sees the parties almost daily, living, cooking and shopping together. At the Tribunal hearing of 22 January 2020, Ms Siomina stated the following: that she has known the visa applicant since she moved in to the Belmore address two years ago.  At that time the parties were already married. The parties are very good with each other even though there are language problems.  Other information provided by Ms Siomina was inconsistent to information provided by the applicant and this is recorded in this decision. In 2020, Ms Ma stated that she met the applicant in April 2017 and the sponsor during Christmas 2017. She keeps in touch with the parties monthly or fortnightly for lunch or dinner. The parties have lived together since around April 2017.  They have inspected several homes and intend to purchase a property and have asked for her opinion. The sponsor went to China to visit the applicant’s family and the applicant visits the sponsor’s mother in the nursing home. The applicant provided a photograph of herself and an elderly lady with the notation that she was visiting the sponsor’s mother. Photographic evidence depicts the parties together and with others at different locations. The Tribunal accepts that the parties represented themselves to other people as being married to each other and were seen as a married couple. While the Tribunal accepts that the witnesses at the Tribunal hearing and the authors of third party statements believe the parties’ relationship to be genuine, the Tribunal is of the view that these statements do not outweigh the inconsistent information the parties provided to the Tribunal.  This inconsistent information led the Tribunal to have significant concerns about the parties’ credibility and is discussed in this decision record. The Tribunal accepts that the parties plan and undertake joint social activities.

   The nature of the parties’ commitment to each other

5. At the Tribunal hearing of 22 January 2020, the applicant stated the following: that she had a good life in Hong Kong.  Her daughter and son-in-law are very good to her. She wants to stay with the sponsor in Australia. If she can stay, she intends to sell the property in Hong Kong and purchase a property in Australia. Her daughter and family will then need to move back to their own property which has two bedrooms. The sponsor could not attend the Tribunal hearing because he was unwell. On the night before the Tribunal hearing, the sponsor began to feel unwell. He also has difficulty walking. He went to his doctor two weeks ago and was prescribed medication and told to rest. He takes five types of medication in the morning and one type in the evening. He had a heart operation eight years ago and is on heart medication.  He also had his pacemaker replaced. She couldn’t remember when that was or the name of the hospital where the procedure took place. She had a piece of paper she showed the taxi driver and he took her there.  However, it was a public hospital and the sponsor had his own room. She is worried that if the sponsor becomes nervous (at a Tribunal hearing) he might have a heart attack. She does not think the sponsor will be able to attend a Tribunal hearing in the future. However, if his health condition improves he may be able to attend a Tribunal hearing but she didn’t know when that might be. The sponsor wrote a statement and said he was going to bring it to the Tribunal hearing. She then stated, that she thinks the sponsor already submitted the statement (to the Tribunal).

6. At the Tribunal hearing of 22 January 2020, the Tribunal telephoned the sponsor. The telephone call was answered and various voices could be heard, but no one, actually spoke in to the telephone. The applicant stated that the voice she heard on the telephone was that of the sponsor. The Tribunal telephoned the sponsor on two more occasions and the applicant and a witness also telephoned the sponsor but he was unable to be contacted. Later in the Tribunal hearing the sponsor was telephoned again.  On this occasion, the sponsor answered the telephone call. The Tribunal told the sponsor that it had been trying to contact him.  He stated that he was unwell and his blood pressure was down. He attended the doctor at 10:00am, on the morning of the Tribunal hearing and was told to rest. He stated that, he couldn’t attend the Tribunal hearing because he is unwell but he could attend a Tribunal hearing in the future. The Tribunal told the applicant to provide it with a doctor’s report detailing the reasons why the sponsor could not attend the Tribunal hearing and independent information to support her claim that the parties’ relationship had been reported to Centrelink. The Tribunal hearing was adjourned. The Tribunal told the applicant that it would schedule a Tribunal hearing in order to take evidence from the sponsor. The Tribunal told the applicant that should the sponsor not attend the rescheduled Tribunal hearing, it would proceed to its decision.

7. At the Tribunal hearing of 22 January 2020, the Tribunal told the applicant that it didn’t have the sponsor’s statement she claimed he was bringing to the Tribunal hearing. The applicant’s migration agent also stated that she didn’t have the sponsor’s statement. The Tribunal asked the applicant who wrote a previous statement, written in English and claiming to be from the sponsor.  The applicant told the Tribunal that she didn’t know who prepared the statement because the sponsor’s English is not good. He can speak English but can’t read English.

8. At the Tribunal hearing of 16 March 2020, the applicant provided a copy of a medical certificate from a cardiologist dated 22 January 2020.  It stated that the sponsor was suffering from dizziness and hypotension and cardiac history and was unfit to attend ‘court’ from 22 January 2020 to 23 January 2020 inclusive.

9. At the Tribunal hearing of 16 March 2020, the applicant stated the following: when the Tribunal called the sponsor on 22 January 2020, he was gambling. She could tell that he was gambling from the sounds on the telephone and after that Tribunal hearing the parties argued. The sponsor did not attend the Tribunal hearing of 16 March 2020 because the parties argued the day before the Tribunal hearing and the sponsor ran away and she didn’t know where he was. The sponsor was afraid to appear before the Tribunal hearing of 16 March 2020, because the applicant told the Tribunal hearing of 22 January 2020, that he was working. He told her that as he receives a payment from the government, he cannot work and didn’t want his working disclosed. When the applicant married the sponsor, she knew he was working but didn’t know he received a government payment. She didn’t realise that the sponsor needed to inform Centrelink about the parties’ marriage.  However in 2018, they advised Centrelink of the marriage. The parties are nearly 70 years old. She found the sponsor and wants to stay with him.

10. The Tribunal is concerned about the sponsor not attending either the Tribunal hearing of 22 January 2020 or 16 March 2020 and that he was not available to give evidence by telephone about the parties’ relationship. While it accepts that a medical certificate has been provided stating that the sponsor couldn’t attend the Tribunal hearing of 22 January 2020, the other evidence from the applicant is that when the Tribunal called the sponsor on that date, he was gambling. The parties could not have been under any misapprehension of the importance of the sponsor’s attendance at the Tribunal hearings and of him giving evidence about the parties’ relationship. The Tribunal does not accept the argument that the sponsor feared attending the Tribunal because of disclosure about him working. In September 2017, the sponsor disclosed that he worked as a chef and also received a government payment. However, since that time the sponsor has not provided any statement about the parties’ relationship. Nor, has he availed himself of the opportunities the Tribunal gave him to provide his evidence. 

11. At the Tribunal hearing of 16 March 2020, the applicant stated that she was concerned that should the Tribunal call the sponsor, he would make the Tribunal angry. The Tribunal   telephoned the sponsor. The telephone was answered and loud noises could be heard but no one engaged with the call. The Tribunal telephoned the sponsor again and the call went to message. The Tribunal told the applicant that it is her responsibility to provide the Tribunal with the information and evidence she would like considered in the review.

12. The Tribunal accepts that the parties have known each other for approximately six years and that they married on 28 May 2016. In September 2017, the sponsor stated the following: the parties have become dependent on each other in all aspects of life, financially, physically and emotionally. They live a peaceful life and will continue to live the rest of their lives together. Ms Xiao stated that the parties had inspected various properties and wanted to buy an apartment in Sydney. However there is no statement or oral evidence from the sponsor about the parties’ commitment to each other since September 2017. In this case, the inconsistent evidence the applicant provided in her oral evidence to the Tribunal and the lack of oral evidence from the sponsor about the parties’ relationship led the Tribunal not to accept that the parties’ provide companionship and emotional support to each other or that that they see their relationship as long term.

    Other considerations

13. At the end of the Tribunal hearing of 22 January 2020, the applicant stated the following: the sponsor is old and confused and she sometimes feels her memory is getting bad as she always forgets things. The Tribunal does not accept these claims as reason for the inconsistent information or the sponsor not providing oral evidence to the Tribunal. The Tribunal asked the applicant whether she or the sponsor were assessed as having any conditions that may affect their memory.  She didn’t know if the sponsor had been assessed for memory loss or confusion. The applicant presented at Tribunal hearings as understanding the questions put to her. She didn’t raise any issues with the Tribunal about lack of understanding of what she was being asked.  She was alert and provided relevant and coherent responses. The Tribunal is satisfied that the applicant has been provided a fair and just opportunity to provide her evidence. The sponsor didn’t appear, at the Tribunal hearing of 22 January 2020, to be confused.  He clearly stated that he hadn’t attended the Tribunal hearing because he felt unwell and had attended the doctor at 10:00am on the morning of the Tribunal hearing.

14. On 25 September 2017, the Hong Kong Police Force Identification Bureau stated that the applicant appeared before a criminal court as follows: ‘2013-08-22 Attempt exporting prohibited articles no under and in accordance with an export licence (S>6D Cap. 60) fined $1500 Case file No. FLS/9856/13.  This offence is regarded as spent in Hong Kong by virtue of Section 2(1) of the Rehabilitation of Offender Ordinance.’ On 25 September 2017, the Hong Kong Police Force Identification Bureau stated that they regret that they are unable to issue the applicant with a certificate to the effect that she has no criminal record. The Tribunal has not given any weight to these matters when considering the parties relationship.

15. 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 at the time of this decision.

16. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered all the evidence individually and as a whole including the Department and Tribunal case files and the evidence provided at the Tribunal hearings. The applicant provided inconsistent information about the parties’ financial matters and about their household and importantly, the sponsor did not provide any statement or oral evidence about the parties’ relationship other than the Centrelink letters, since September 2017. While the Tribunal accepts that the parties represented themselves to others and are seen as being married to each other and that they planned and undertook joint social activities. However, overall, given the inconsistent evidence and credibility concerns, the Tribunal, is not prepared to accept the parties’ evidence about their commitment to the relationship. The parties have not satisfied the Tribunal that they have a mutual commitment to a shared life to the exclusion of all others, that they have a genuine and continuing relationship, or that they live together and not separately and apart on a permanent basis.

17. There is no evidence before the Tribunal that the applicant satisfies the requirements of any of the alternative subclauses.

18. Given these findings the Tribunal is not satisfied that at the time of application and decision the partiers were in a spousal relationship. Therefore the applicant does not meet cl.820.211(2) and cl.820.221 of Schedule 2 to the Regulations.

19. For the reasons above, the applicants does not satisfy the criteria for the grant of the visa.

    DECISION

20. The Tribunal affirms the decisions not to grant the applicant a Partner (Temporary) (Class UK) visas.

    Helena Claringbold               
    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).