JUAN (Migration)

[2021] AATA 5653

JUAN (Migration) [2021] AATA 5653 (14 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chu Ling Juan

CASE NUMBER:  1810636

DIBP REFERENCE(S):  CLF2014/83486

MEMBER:David Crawshay

DATE:14 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221 of Schedule 2 to the Regulations.

Statement made on 14 October 2021 at 5:25pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spousal relationship – financial aspects – lack of financial integration – little knowledge of the sponsor’s transactions – nature of the household – particulars of the claimed joint residence – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 801.221

CASES
He v MIBP [2017] FCAFC 206

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 April 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 June 2014 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 applicant did not satisfy cl.801.221 because the delegate was not satisfied that the applicant was the spouse of the sponsor.

4. The applicant appeared before the Tribunal on 3 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. On the evidence before it, the Tribunal is satisfied that the sponsor is the “sponsoring partner” of the applicant who is an Australian citizen and that sponsorship continues, that the applicant is the holder of a Subclass 820 visa and that at least two years have passed since the application was made. Therefore, the applicant meets cl.801.221(2)(a), cl.801.221(2)(b) and cl.801.221(2)(d).

7. The issue in the present case is whether the applicant is the spouse of the sponsor at the time of this decision under cl.801.221(2)(c).

   Whether the parties are in a spouse or de facto relationship

8. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the “sponsoring partner”, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the “sponsoring partner” of the applicant.

9. “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 visa applicant’s and sponsor’s 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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has seen a certificate for a marriage that took place on 6 June 2014 and was registered on 25 June 2014. It is satisfied that the document is genuine and that the parties were free to marry each other. 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 other requirements for a spouse relationship met?

    Financial aspects of the relationship

11. The applicant told the Tribunal at hearing that she and the sponsor do not have any joint ownership of real estate or other assets, nor do they have any joint liabilities.

12. The applicant said that the parties have a joint bank account – a saving account that she claims has around $10,000 at the moment. She said that the sponsor has a personal account into which his salary is deposited. She said that she had only just opened up her own personal account, and had previously relied on the sponsor’s account. In this regard, she told the Tribunal that she had access to a key card, but actually she did not withdraw money. When asked how she was able to spend money, she said that when the parties shop they go together and pay cash or card if they do not have enough cash. When asked what would happen if, say, the applicant needed to buy clothes for herself, she told the Tribunal that they always go shopping together and never by herself.

13. When questioned, the sponsor confirmed with the Tribunal that the parties have one joint account and that he has a personal account which he uses to pay for bills. He also confirmed that the applicant has only just recently opened a personal account, before which she would rely on money given to her by him because she is not good at using a key card or credit card owing to her poor English. The Tribunal put to him the implausibility of her not being able to use a card given that English and Vietnamese use the same numerals. He replied that she has lived in Australia for six or seven years and yet still forgets things. He said that the parties go shopping together.

14. Regarding the joint savings account, previous statements for this account showed it having upwards of $70,000 in 2018 but recently (in 2020) only having around $5,000, and the applicant was quizzed on where that money ended up given the relatively low balance in there now. She said that the sponsor bets in a football competition where he won that money along with some friends. She said that he paid back these friends and then gave her some money to give on to her relatives in Vietnam. The Tribunal remarked to the applicant that $65,000 is a lot of money to have spent in 2 ½ years when it appeared that the sponsor had been working regularly. The applicant repeated that the sponsor borrowed money from friends which he then paid back to them.

15. When questioned on the fate of the money won by the sponsor in or around 2018, he told the Tribunal that he and a friend won the money on a multi-bet at the TAB and put the money into the savings account afterwards. He said that he used some of the money to pay back a friend, gave some of it to the applicant to give on to her family in Vietnam, and used some for the parties’ trip to Vietnam in 2019.

16. The applicant was also asked about the sponsor’s loan repayment and she replied that she knew about him repaying loans to friends but was not sure of the details of these loans. When the Tribunal suggested to her that this loan appeared to be more “formal”, she said that she does not understand much about the sponsor’s betting, and he would say to her, “Don’t ask”. The Tribunal at this point put the specifics of the loan to her – that it was an amount of $420 paid every fortnight from the sponsor’s personal transaction account. She responded that she did not know what this was but it may have been to pay the rent. When it was put to her that it probably was not as the rent was $500-a-fortnight, she responded that she had no idea.

17. When asked about the $420-a-fortnight loan, the sponsor told the Tribunal that this was to his daughter who needed the money to continue her education and buy a car. He said that he does not want the applicant to know about this because she does not work and if he tells her he has debts she will worry. He said that he takes care of all the bills and personal matters and he does not want the applicant to know.

18. The Tribunal heard from the applicant that she does not currently have a job and indeed has never had a job while in Australia. She said that she had applied for jobs in nail salons and restaurants but had her applications rejected due to bad English. The Tribunal put to the applicant that in her application form she said that she had “limited” English (there is an option for “Not at all”) and that she had stated in a relationship statement that the sponsor was teaching her English, and that it found it implausible that the applicant would not be able to get a job in a nail salon because of bad English. She replied that the sponsor did teach her English but she is not young and does not have a good memory. It asked her how then did she fare in Taiwan speaking the language there. She replied that she spoke Mandarin.

19. When asked if the applicant has ever had a job in Australia, the sponsor confirmed that she had not. He said that she does not have much experience in jobs and has not worked before. He said that the language barrier means that prospective employers try her out for a few days but then do not end up employing her.

20. In relation to whether one party owes legal obligations in respect of the other, the applicant told the Tribunal that the sponsor has bought “personal insurance” and that she is the beneficiary. The Tribunal remarked that there was no evidence on the file for this. She stated that the sponsor explained that she would be a beneficiary if he passed away. The Tribunal notes that evidence has been provided of a non-binding death nomination for superannuation purposes which appears to be ongoing. It accepts that the applicant may have been referring to this when she asserted that the applicant had “personal insurance”.

21. Lastly, in terms of the responsibility for the payment of household expenses, the applicant told the Tribunal that the sponsor pays for all expenses such as rental and bills. When questioning the sponsor, the Tribunal put to him that it appeared he made all of the financial decisions in the relationship and the applicant made none. He replied that this was because he worked and she did not.

22. The Tribunal has considered the evidence. It finds that the parties do not have any joint ownership of real estate or other assets, nor do they have any joint liabilities. It finds that they have pooled their resources to a very limited extent, with the sponsor making most if not all financial decisions and conducting the vast majority of financial transactions, including in relation to rent and utility payments, through his personal account into which he is paid. It finds that the parties’ joint account appears to have been used only briefly to store the sponsor’s winnings. It finds that the sponsor has made a non-binding and non-lapsing superannuation death nomination in favour of the applicant and that this nomination remains.

23. The Tribunal acknowledges that the applicant does not appear to work although it also acknowledges evidence from the delegate’s decision that she does have her own assets including liquid assets from when she lived in Taiwan. It notes that no mention was made by the parties at hearing of whether these assets have been integrated into the parties’ joint finances. Given the lack of evidence, the Tribunal is not satisfied that they have been integrated. Moreover, the applicant appears to take no interest in the parties’ financial affairs, including to the extent that she seems to abide the sponsor outlaying money on sports bets and making payments to his daughter without her knowledge. This aspect is given some weight of an adverse nature.

    Nature of the household

24. The Tribunal accepts that the applicant and sponsor each have a child from other relationships. In both cases, these children are adults at the time of decision. At hearing, the applicant told the Tribunal that the sponsor looks after his daughter. When pressed on how he looks after her given that he is here and she is in Taiwan, she told it that they have not sent any money to Taiwan yet. She said that when she left Taiwan she left a property and money to her daughter. When asked about the sponsor’s child, the applicant said that he has a daughter who is 23 years old and living with her boyfriend. She said that this daughter lived with her mother until she moved out to live with her boyfriend.

25. When asked about the parties’ daily routine, the applicant told the Tribunal that she attends to housework and preparing meals after the sponsor leaves for work at 7:30am. She said that he comes home at around 5:00pm. The sponsor spoke to the same details.

26. When asked what they did for the sponsor’s birthday this year (28 May 2021), the applicant said that the parties did not go out as they usually do because of the lockdown. Instead, they had a little party at home. The sponsor spoke to the same details. The Tribunal notes that a two-week lockdown began on 28 May 2021.

27. In relation to the sharing of housework, the applicant told the Tribunal that she does most of the housework but the sponsor sometimes cleans the house, helps with laundry and with the cooking.

28. A major concern for the delegate in her decision were the particulars of the claimed joint residence and the parties’ claim that they lived there by themselves. Based on open-source information from a real estate website, the residence had three bedrooms as against two bedrooms as claimed by the parties. Moreover, while they claim to have been living alone, Department information suggested that several other people used the residence as their address.

29. The Tribunal heard adamant claims from the parties that the claimed joint residence only had two bedrooms. They offered to present more information to substantiate their claims, and on 11 August 2021 the Tribunal received a series of 16 photographs taken of the house, showing a hallway, two bedrooms, a bathroom, toilet, open-plan kitchen and dining room, living room and laundry. It gives weight to these photographs, which appear to suggest that there is no third bedroom. Moreover, the Tribunal diminishes the weight given to the open-source information as it appears not to be a recent estimation and gives wrong information on other aspects of the house such as the number of off-street car spaces. The Tribunal treats it with caution and does not consider it a reliable source of information.

30. The Tribunal accepts, based on the force of the parties’ answers at hearing and before, and in light of the photographs taken of the property, that the joint claimed residence contains two bedrooms and not three. In this regard, it finds that the parties have not provided contradictory evidence. In light of the overwhelming evidence to show that the parties show themselves as a married couple (dealt with below) and other evidence showing that the applicant is financially reliant on the sponsor in a substantial way if not totally, it accepts that the parties share the same address – that being the address they claim in documents and at hearing.

31. The above evidence indicates that the parties live together and that their relationship is genuine and continuing at the time of this decision.

    Social aspects of the relationship

32. The Tribunal has considered the evidence in front of it. It has considered the numerous photographs of the parties in the presence of friends and members of each other’s families at different social occasions in Australia and Vietnam, including some involving the sponsor’s immediate family. It notes that the applicant is seen wearing her engagement ring in some of these photographs where her left hand is visible.

33. The Tribunal has also considered Form 888 statutory declarations given by members of the sponsor’s family after the hearing; namely, his mother, a sister and a nephew. It accepts based on these declarations and the abovementioned photographs that these people know about the parties’ relationship. It accepts based on this evidence that the applicant has been accepted into the sponsor’s family, being invited to various family events such as the 85^th and 90^th birthday parties of the sponsor’s mother and the wedding of his nephew.

34. Lastly, the Tribunal has seen evidence in the form of flight itineraries, hotel bookings and movement records that the parties have embarked on three holidays to Vietnam during the time that they claim to have been in a relationship – in 2016, 2017 and 2019. Furthermore, other evidence shows that they went to the Gold Coast on holiday with others in July 2019. As above, they have also attended family events together.

35. Based on the above evidence and findings, the Tribunal accepts that the parties have represented themselves to other people as being married to each other and that these people recognise them as such. It also accepts that the parties plan and undertake a number of joint social activities.

36. The Tribunal accepts that the social aspects of the relationship point to the parties being in a genuine and continuing relationship. This aspect is given significant weight.

    Nature of the parties’ commitment to each other

37. The parties claim to have met at a restaurant in St Albans during separate Christmas parties in December 2013 while the applicant was out in Australia. They claim to have seen each other over the weeks that followed until the applicant returned to Taiwan in March 2014. In this regard, the Tribunal notes that the sponsor’s sister, Ms Thai Binh Luc, stated in her Form 888 declaration dated 4 August 2021 that she saw the parties together at the Chinese New Year temple festival in 2014. The applicant told the Tribunal at hearing that she needed to return to Taiwan after a few months but returned to Australia in April 2014. She said that the sponsor met her at the airport where he proposed to her and took her to his house to live with him.

38. The Tribunal notes that these claims have consistently been made by the parties in such documents as the parties’ relationship statement dated 16 January 2015. Based on this consistency and on the spontaneous manner in which these claims were made at hearing, the Tribunal accepts that the parties’ relationship began and developed in the way claimed. It therefore accepts that the parties have been in a relationship for more than seven years. As above, it accepts that they have been living together for this amount of time. This evidence is given substantial weight by the Tribunal.

39. In relation to the degree of companionship and emotional support that the parties draw from each other, the Tribunal notes the spontaneous and forthright evidence given by the parties at hearing. What this evidence appears to demonstrate is that the applicant has assumed what would be termed a “traditional” role of housemaker and supporter of her husband, who in turn is the sole breadwinner and keeper of the finances. The parties’ responses to the question of how they show each other companionship and emotional support is especially revealing – the applicant relies financially on the sponsor and the sponsor, in turn, is looked after by her in terms of food preparation and other tasks. The Tribunal believes that this is the reason why the applicant has not taken a more active role in the parties’ finances, instead being content to let the sponsor take care of these things, even to the point where she has little if any idea of his transactions. In that regard, although the Tribunal has accorded some adverse weight to the parties’ lack of financial integration, it diminishes this weight given the nature of the relationship.

1. Having considered the evidence of the nature of the parties’ commitment to each other, the Tribunal accepts that it indicates that the parties’ relationship is genuine and continuing, that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, and that they live together.

   CONCLUSION

2. Given these findings the Tribunal is satisfied that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship is genuine and continuing and they live together at the time of decision. They therefore satisfy s.5F(2)(b), s.5F(2)(c) and s.5F(2)(d). As above, the Tribunal has found that the parties were married to each other under a marriage that is valid, and s.5F(2)(a) is satisfied.

3. Therefore, the requirements of s.5F(2) are met at the time of this decision and the parties are in a married relationship. Because they are in a married relationship, the applicant meets the definition of “spouse” under s.5F. She therefore meets cl.801.221(2)(c) and because she meets the other requirements of cl.801.221(2) as above, she meets that subcriterion which is one of several alternative requirements under cl.801.221.

4. 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 801 visa.

   decision

5. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·cl.801.221 of Schedule 2 to the Regulations.

   David Crawshay
   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).