Kong (Migration)

[2023] AATA 3828

Kong (Migration) [2023] AATA 3828 (16 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fanmin Kong

REPRESENTATIVE:  Mr Zack Zhao (MARN: 1577120)

CASE NUMBER:  2006711

HOME AFFAIRS REFERENCE(S):          BCC2017/4773149

MEMBER:T. Quinn

DATE:16 October 2023

PLACE OF DECISION:  Melbourne

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:

·Clause 820.211(2) of Schedule 2 to the Regulations

Statement made on 16 October 2023 at 9:08am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – 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 820.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 13 December 2017, the applicant (‘the applicant’ or ‘Ms Kong’) applied for a Partner visa[1] (‘the visa’) based on her marriage to her sponsor, Mr Guanghua Chen (‘the sponsor’ or ‘Mr Chen’).[2]

   [1]           Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

   [2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 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.

2. On 26 March 2020, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that at the time of application the applicant was the spouse of the sponsor as defined by section 5F of the Act (‘the delegate’s decision’).[3]

   [3]           See clauses 801.221 or 820.211 of the Migration Regulations 1994 (‘the Regulations’).

3. On 6 April 2020, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]

   [4] Pursuant to sections 338(2) and 347 of the Act.

4. On 12 October 2023, the applicant and the sponsor appeared before the Tribunal to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Chen’s daughter, Weili Chen (‘Ms Chen’).  There were five witnesses in attendance at the hearing ready and prepared to give evidence in person and one witness ready and prepared to give evidence over the phone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review and their representative also attended the hearing of 12 October 2023.

6. I have determined that it is appropriate to remit this application.  I have proceeded to a decision having regard to all the information before me.  In reaching my decision, I have regarded:

   a.the oral evidence and submissions given at the hearing;

   b.all material filed by or on behalf of the applicant; and

   c.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.[5]

   [5]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

   STATUTORY AND LEGAL FRAMEWORK

7. The issue in this case is whether the applicant and the sponsor are in a spouse relationship as defined by section 5F of the Act.

8. Clause 820.211(2) of the Regulations requires that at the time the visa application was made the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims that she is the spouse of the sponsor, Mr Guanghua Chen (‘the sponsor’), who is a Chinese born Australian permanent resident. Based on the information before me I am satisfied that the sponsor is an Australian permanent resident.

9. ‘Spouse’ is defined in section 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.[6] 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 review applicant’s household and their commitment to each other as set out in 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[7] 

   [6] Section 5F(2)(aa)-(d).

   [7]           He v MIBP [2017] FCAFC 206.

10. The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.

11. Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[8]  In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims  made by the applicants and I have not done so.  A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[9]

    [8]           Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

    [9]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

12. If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[10]

    [10]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].

13. It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[11]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [11]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].

    Valid marriage

14. If Mr Chen and Ms Kong (‘the applicants’) are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The applicants have filed a copy of their Marriage Certificate with the Tribunal which indicates they were married on 17 July 2017.[12] On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a).

    Timeline[13]

    [12]          See Marriage Certificate in the Tribunal file.

    [13]          See Tribunal file, Department file and evidence at hearing.

15. The applicants are from the same town in China and have been known to each other for many  years.  Ms Kong was friends with Mr Chen’s first wife.

16. Mr Chen was married to his wife for many years before she died in February 2015.  Mr Chen and his first wife had two children together, including Ms Chen who gave evidence at hearing.

17. Ms Kong was married to her first husband in 1976 and there is one son from that marriage.  She divorced her first husband in 1999 and her first husband died in 2009.

18. The applicants reconnected in China after Mr Chen’s first wife died in 2015.

19. Mr Chen had surgery for clots in his legs in 2016.

20. Ms Kong entered Australia for the first time in June 2017 on a visitor visa.  She married Mr Chen just one month later and made the application which is the subject of this review in December 2017.

21. The couple travelled to China in 2019, returning to Australia together.

22. Mr Chen had a severe stroke in 2020.

    Evidence Generally

23. The evidence at hearing was mostly consistent.  Some of Mr Chen’s evidence was plainly incorrect but it was clear this was a result of his stroke and Ms Chen and Ms Kong’s evidence tended to be consistent with each other in these instances.

    Financial aspects of the Relationship

24. Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.

25. The applicant and sponsor live together in public housing.  They are both elderly and have minimal financial means.

26. The evidence at hearing was consistent about their previous work/employment and their current status as retirees living on pensions.  The evidence was consistent that they both still receive small pensions from China.

27. The evidence in relation to the applicant and sponsor’s financial circumstances is minimal given their modest circumstances.  I place some weight in their favour in relation to the financial aspects of the relationship.

    Nature of the Household

28. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

29. The applicant and the sponsor were well versed in the lives of their respective children and grandchildren.  They were able to answer questions about the number, gender, residence status and marital status of their respective children and the age and gender of grandchildren.

30. The evidence was relatively consistent about the chain of events leading to and including Mr Chen’s stroke in 2020 and the detail Ms Chen and Ms Kong gave about Mr Chen’s symptoms was particularly consistent.  Ms Chen and Ms Kong’s evidence was also consistent that neither of them could travel with Mr Chen to the hospital in the ambulance or visit him due to the COVID19 Pandemic and associated restrictions.

31. It was clear during the hearing that Ms Kong was pivotal in Mr Chen’s stroke treatment and this could only have occurred in circumstances where she was observing him closely.  I consider such close observation is reflective of a genuine relationship and a couple living together.

32. The evidence at hearing was consistent about the impact Mr Chen’s stroke in 2020 has had on his abilities.  The evidence at hearing was given in a consistent way in response to questions about the division of household tasks and day to day running of the household in that the situation was different before and after Mr Chen’s stroke in 2020.

33. The applicant and sponsor gave detailed and consistent evidence about the times they wake up, how they spend their mornings and their meal arrangements.  This was particularly persuasive evidence given Ms Kong’s habit of exercising before her husband wakes and her different mealtimes, including not eating after around 5pm each day along with their consistent evidence about the large breakfast Mr Chen has when he wakes which includes eggs, bread, butter, jam and tea.  They gave consistent evidence that Mr Chen can prepare this breakfast himself and about the egg steamer he uses to do this (as opposed to cooking his eggs on the stove).  The level of detail they were able to provide in evidence at hearing was commensurate with a couple who has been living together for many years.

34. The evidence was consistent that Ms Chen visits her father at least twice a week and has been heavily involved in his care, together with Ms Kong. 

35. The applicants have filed many photos together, with and without their children and grandchildren and other friends and family members.  The applicants were able to consistently answer questions about these photos, including photos that are framed in their house and can be seen in the background of photos filed.  They had in fact brought these framed photos to hearing and gave very animated evidence about where they were and who was in the photos.  It was clear they share a love and joy of the members of their blended family.

36. In the circumstances, I place significant weight in favour of the applicants in relation to the household aspects of the relationship.

    Social Aspects of the Relationship

37. Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

38. I refer to and repeat paragraph 33 above.

39. The applicant and sponsor gave consistent evidence at hearing about their wedding.  They were both wearing rings at hearing.

40. There were seven witnesses in attendance at the hearing, including their general practitioner who has also filed statements in support of their relationship who was available to give evidence over the telephone.  Their neighbour was also among the witnesses present and has filed statements in support of their relationship since their original application nearly six years ago.

41. The applicants have filed many statements and statutory declarations from friends and family in support of their relationship.

42. Ms Chen was very emotional during her evidence at hearing, and it was clear that she has formed a strong bond with her stepmother and experiences deep gratitude to her for the care she gives Mr Chen. 

43. I place weight in the applicants’ favour in relation to the social aspects of the relationship.

    Nature of the applicant and the sponsor’s commitment to each other

44. 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 are all aspects to be considered in determining the nature of the parties’ commitment to each other.

45. The applicants have been living together and married for over six years.  I refer to and repeat paragraphs 29-33 above.

46. The evidence before me is consistent that Mr Chen and Ms Kong draw enormous companionship and emotional support from each other. 

47. The evidence at hearing from all three witnesses was impassioned when questions about Mr Chen’s stroke were asked.  Mr Chen and Ms Chen both expressed the view that if it were not for Ms Kong, Mr Chen would have died from his stroke in 2020.  It was clear there was deep gratitude from these witnesses in relation to this experience and that it has brought the couple closer together. 

48. The evidence at hearing was that Mr Chen cannot leave the house and sometimes walks around the garden with his cane but otherwise lives a relatively solitary and sedentary life.  Ms Chen was very emotional in her evidence about the impact Ms Kong has had on her father’s happiness after the devastating loss and grief he experienced when his first wife died in 2015.  She was equally expressive when explaining how hard it would be for Mr Chen if he could not have Ms Kong with him.  I found this evidence very persuasive.

49. Ms Kong was able to give detailed evidence at hearing about Mr Chen’s surgeries in 2016 for clots in his legs and about his current stomach pains which he was attending upon a specialist for later that day.

50. The evidence was consistent at hearing that the couple sees this relationship as a long term one.  It was clear that Ms Kong has formed strong bonds with the people who are close to Mr Chen, particularly his daughter Ms Chen.

51. The applicants appeared at ease with each other during hearing and it was clear from the evidence that they know each other well.

52. I place significant weight in the applicants’ favour in relation to their commitment to each other.

    Conclusions

53. I have carefully considered all of the evidence before me. I find that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis. I am satisfied that the applicant is in a spouse relationship with the sponsor and the applicant therefore satisfies clause 820.211(2).

54. The appropriate course is for this matter to be remitted for reconsideration by the Department.

    Other Matters

55. The applicant’s representative requested a direction on the applicant’s application for a Partner (Residence) (Class BS) visa under clause 801.2 of the Regulations. Firstly, I do not have jurisdiction in this regard as the application for review is in relation to the refusal of the Partner (Temporary) (Class UK) visa only. Secondly, clause 801.221(2)(a) of the Regulations requires that an applicant must be ‘the holder of a Subclass 820 visa’ in order to satisfy the criteria under clause 801.21. Although I am remitting this case for reconsideration, the applicant does not yet hold a subclass 820 visa and therefore does not yet meet the requirements of clause 801.221(2)(a) of the Regulations.

    DECISION

56. 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: Clause 820.211(2) of Schedule 2 of the Regulations.

    T. Quinn
    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).