Jin (Migration)

[2020] AATA 1597

Jin (Migration) [2020] AATA 1597 (25 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaoyan Jin

CASE NUMBER:  1728359

HOME AFFAIRS REFERENCE(S):          BCC2015/140640

MEMBER:Peter Smith

DATE:25 February 2020

PLACE OF DECISION:  Sydney

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(a) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 25 February 2020 at 3:15pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing spouse relationship – joint ownership of assets – pooling of financial resources – details of shared household – residing together long term – social recognition of the relationship – decision under review remitted     

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

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 Immigration and Border Protection on 3 November 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Xiaoyan Jin (the applicant) applied for the visa on 12 January 2015 on the basis of her relationship with her sponsor, namely Mr Jewel Zulficar. 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(a) and cl.820.221 of Schedule 2 to the Regulations because there was insufficient evidence to demonstrate that the applicant and the sponsor were in a genuine and continuing spouse relationship.

4. On 15 November 2017 the applicant made an application to the Tribunal for review of the delegate’s decision to refuse to grant the application a Partner (Temporary) (Class UK) visa.  

5. The application was heard by the Tribunal on 7 February 2020.  At the hearing the applicant appeared with her authorized representative and recipient, and with the assistance of an interpreter in the English and Mandarin languages, gave oral evidence and presented arguments in respect of her application for review.  The Tribunal also received oral evidence from the sponsor.  He did not require the assistance of an interpreter. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the spouse of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen at the time of application and at the time of this decision.

   Whether the parties are in a spouse or de facto relationship

8. Clauses 820.211(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.

9. In the present case the applicant claims to be the spouse of the sponsor who claims to be an Australian permanent resident.  This is supported by records obtained from the Department of Immigration and Border Protection (the Department) which show that the sponsor became an Australian permanent resident on 12 August 1989.  On this evidence, I am satisfied that the sponsor was at the time of application and at the time of this decision an Australian citizen.

10. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the 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?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

12. The applicant claims to have been married previously to another person other than the sponsor.  The applicant claims that her first marriage was solemnized on 22 May 2008 and ended in divorce on 24 April 2009.  The applicant has provided a notarized translated copy of her Certificate of Divorce issued by the People’s Republic of China Ministry of Affairs on 18 November 2013.  The Certificate of Divorce provides that the applicant’s former marriage was solemnized on 22 May 2008 and ended in divorce on 24 April 2009.  

13. The sponsor made no claims of any previous marriages with any another person other than the applicant.

14. The applicant claims that she and the sponsor were married to each other in New South Wales on 4 May 2014.  This applicant has provided a certified copy of the parties’ Certificate of Marriage which provides that the parties’ marriage was solemnized in NSW on 4 May 2014.  On this evidence, I am satisfied 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).

    Are the other requirements for a spouse relationship met?

    The financial aspects of the parties’ relationship

15. The first factor I must consider under r.1.15A of the Regulations is the financial aspects of the parties' relationship. In considering this factor, I must have regard to all of the circumstances of the parties' relationship, including whether the parties have any joint ownership of real estate or other major assets, whether the parties have any joint liabilities, the extent of any pooling of financial resources, especially in relation to major financial commitments, whether one party to the relationship owes any legal obligation to the other, and the basis of any sharing of day-today household expenses.

16. I accept the evidence given by each of the parties at the hearing that there does not appear to be any evidence before the Tribunal that the parties have any joint ownership of real estate.  I give this evidence very little weight because the applicant is not an Australian citizen or a permanent resident of Australia.  In these circumstances it would be very difficult for the parties to acquire joint property.

17. I accept the evidence given by each of the parties at the hearing that the parties jointly purchased a car.  The parties gave consistent evidence about the purchase of their car, including the make of the car, how it was purchased and how it was paid.  On this evidence, I am satisfied that the parties have joint ownership of other major assets commensurate with that of a genuine and continuing spouse relationship.

18. Apart from joint household expenses referred to below the parties have no joint financial liabilities. I give this evidence little weight in light of other evidence before the Tribunal in respect of the parties’ decision to maintain a consistent savings pattern over the course of the parties’ relationship so that they can purchase major assets such as a business and a house.  The bank statements provided to the Tribunal show that the parties have over the course of their relationship consistently saved portions of their wages by transferring the funds to another account.  This in my view is commensurate with that of a genuine and continuing spouse relationship. 

19. I accept the evidence before the Tribunal that the parties pool their financial resources as evidenced by the bank statements provided to the Tribunal.  The statements show that the parties have over the course of the parties’ relationship, combined their financial resources. 

20. I accept the evidence before the Tribunal that the parties have both nominated the other as beneficiaries to receive the other parties’ superannuation in the event of death.  Although I accept that these types of decisions can be changed at any time, I give this significant weight in the present case because the decisions made by the parties are mutual.  On this evidence, I am satisfied that the parties owe a legal obligation to the other party. 

21. I accept the applicant's claim that the parties opened a joint bank account with the Commonwealth Bank of Australia (the CBA) on 25 November 2014.  This claim is supported by a letter from the CBA.  The applicant has provided the Tribunal with copies of the parties' bank statements covering the period 25 November 2014 to the present.

22. The statements show the payment of the parties’ wages directly into the joint account.  The statements show the payment of household expenses, including the payment of rent and utilities and the purchase of groceries and other household purchases such as electrical appliances and furnishings.  I recognize that this is commensurate with that of a genuine and continuing spouse relationship.  On this evidence, I am satisfied that the parties share in the responsibility for the payment of day-to-day household expenses.

    The nature of the parties’ household

23. The second factor I must consider under reg.1.15A of the Regulations is the nature of the parties’ household. In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including whether the parties have any joint responsibility for the care and support of children, the living arrangements of the parties, and any sharing of the responsibility for housework.

24. The parties were asked if they had any joint responsibility for the care and support of children.  The parties were also asked about whether they still planned to have children given that that is what they had told the delegate at the time of application.  The parties told the Tribunal that they have tried to have a child however they have not been successful.  The parties did acknowledge that it is unlikely to happen given the applicant's age.  It is not uncommon for couples to a relationship to not be able to have children despite them trying. 

25. The parties told the Tribunal that have shared two households together since 22 November 2014 and continue to share a household.  Save and except for a period of six months between May 2014 and October 2014 when the applicant was in China and Japan, the parties appear to have shared a household continuously.  In the delegate's Decision Record, the delegate states at p 4 'In addition, when your sponsor spoke to the Case Officer by phone on 20 October 2016, he advised that you travelled to China six months before'.  It appears that the delegate and the sponsor may have misunderstood each other.  At the hearing, the Tribunal raised the delegate’s concerns with the parties.  The sponsor was referring to the six month period between May and October 2014 when he told the Case Officer the applicant travelled six months before.  This is consistent with what is stated in the visa application and also with the applicant’s Movement Records which shows that the applicant was overseas for six months between May 2014 and October 2014.

26. The parties gave consistent evidence about the number of homes they have shared, the dates upon which the parties commenced sharing a household together, the date the parties moved out of their first apartment and the date they moved into their current apartment. The parties gave consistent evidence about the amount of rent they are required to pay each week and the name of the managing agent and the way in which they pay their rent.

27. The parties gave consistent evidence about the meal they ate the night before the hearing including who cooked and prepared the meal.  The parties gave consistent evidence about what the parties had for breakfast on the morning of the hearing.  The parties gave consistent evidence about each other’s favourite foods.

28. The parties gave consistent evidence about their sleeping arrangements including which side of the bed they sleep on and which side of the bed is closest to the window.  The parties gave consistent evidence about the other parties’ place of employment, the length of time the other party has been employed at their workplace, their hours of work, and the time each party leaves home and how each party travels to and from work.

29. The parties gave consistent evidence about the types of furnishings they have in their apartment.

30. The applicant has also provided the Tribunal with a documentary evidence to show that the parties have shared two households together.  The documentary evidence provided to the Tribunal includes correspondence from the Australian Taxation Office, opal activity statements, tax invoices for mobile phone accounts, bank statements, superannuation statements, electricity bills, internet bills, copies of the parties' NSW Driver's Licence, and copies of the parties’ Residential Tenancies Agreements. This evidence and the oral evidence given by each of the parties at the hearing persuades me that the parties share a household commensurate with that of a genuine and continuing spouse relationship.

31. The parties gave consistent evidence about the sharing of the responsibility for housework.  The parties told the Tribunal that the sponsor usually cooks and prepares meals and the applicant cleans up the kitchen after meals including the dishes.   The parties told the Tribunal that the parties share washing the clothes and the sponsor cleans the bathroom. 

    
    

    I recognize that the household arrangement of the parties is commensurate with that of a genuine and continuing spouse relationship.

    The social aspects of the parties’ relationship

32. The third factor I must consider under reg.1.15A of the Regulations is the social aspects of the parties’ relationship. In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including whether the parties represent themselves to other people as being married to each other, the opinion of the parties' friends and acquaintances about the nature of the relationship, and the basis on which the parties plan and undertake joint social activities.

33. I accept that each of the parties have made representations to other people as being married to each other. 

34. The applicant has provided the Tribunal with extensive evidence including a statutory declaration of the applicant's mother who is aware, based on the parties' representations that the parties are married to each other. The applicant has provided the Tribunal with the statement of the sponsor's brother who is also aware that the parties are married to each other based on the parties' representations.  The applicant has provided numerous other witness statements from the parties' friends all of whom state that they are aware that the parties are married to each other. 

35. The applicant has also provided copies of the parties’ income taxation returns for the years 2014/2015, 2015/2016, 2016/2017, 2017/2018.  On each return lodged by the applicant for the years 2014/2015, 2015/2016, 2016/2017, 2017/2018 the sponsor is listed as the applicant's spouse.  On each return lodged by the sponsor for the years 2014/2015, 2015/2016, 2016/2017, 2017/2018 the applicant is listed as the sponsor's spouse.  On this evidence, I am satisfied that the parties represent themselves to other people as being married to each other.  I give this evidence greater weight because it shows that the parties’ relationship is known to others outside of their family and friends.

36. I accept that in the opinion of the parties’ friends and acquaintances the parties are in a genuine and continuing spouse relationship.  The applicant has provided copies of statutory declarations from a number of the parties’ friends.  The parties’ friends make specific references to the parties’ relationship including the parties’ future plans which demonstrates to me that the parties have spoken to their friends about the nature of their relationship. In my view this is commensurate with that of a genuine and continuing spouse relationship.

37. I accept that the parties plan and undertake social activities as a married couple.  There is evidence that the parties have planned and undertaken joint interstate travels together.  In support of this the applicant has provided the Tribunal with a copy of the parties’ joint interstate travel itinerary.  There is also extensive evidence before the Tribunal that the parties have socialized together at the Blue Mountains and other attractions such as the beach.  There is extensive photographic and written evidence before the Tribunal that shows that the parties regularly socialize with their circle of friends.  I give this greater weight as these people attended the parties’ wedding ceremony. 

    The nature of the parties’ commitment to each other

38. The fourth factor I must consider under reg.1.15A of the Regulations is the nature of the parties’ commitment to each other. In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including the duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other, and whether the parties’ see the relationship as a long-term one.

39. The applicant claims to have met the sponsor for the first time in person in Sydney on 30 April 2013.  I accept that it is plausible that the parties met each other in person as claimed as the applicant had according to her Movement Records arrived and entered Australia around that time.  The applicant claims that the parties were married to each other in Sydney on 4 May 2014.  This claim is supported by the parties’ Certificate of Marriage.  On this evidence, I am satisfied that the parties are for the purposes of s.5F(2)(a) of the Act validly married.  I therefore find that the duration of the parties’ relationship to be five and half years.  In making this finding, I recognize that five and half years is a significant period of time to remain committed to another person.  I give this evidence significant weight.

40. The applicant claims to have commenced living with the sponsor in November 2014.  I accept this as plausible because the applicant’s Movement Records that the applicant had returned to Australia in October 2014.  Further, I found the parties’ evidence in respect to the nature of their household to be highly credible.  I therefore find that the length of time during which the parties have lived together to be approximately five years.  In making this finding, I recognize that five years is a significant period of time to live with a partner.  I give this evidence significant weight.

41. At the hearing the parties told the Tribunal that they provide companionship and emotional support to one another by listening to each other and providing advice to each other especially if one party has experienced a difficult work day.  This is in my view is commensurate with that of a genuine and continuing spouse relationship. 

42. Having regard to all of the evidence before the Tribunal and having had the benefit of observing the parties interact with each other, I am satisfied that the parties see their relationship with each other as a long-term one. 

    CONCLUSION

1. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of application and at the time of this decision.

2. Therefore the applicant meets cl.820.211(a) and cl.820.221.

3. 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

4. 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(a) of Schedule 2 to the Regulations

   ·cl.820.221 of Schedule 2 to the Regulations

   Peter Smith

   
   
   

   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).