LI (Migration)

[2017] AATA 2311

LI (Migration) [2017] AATA 2311 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr LIN LI

CASE NUMBER:  1614307

DIBP REFERENCE(S):  BCC2014/3288163

MEMBER:Linda Holub

DATE:08 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 November 2017 at 2:28pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Genuine de facto relationship – Financial matters – Joint finances – Timing of financial contributions – Personal knowledge – Support of family and friends – Short duration of relationship before marriage

LEGISLATION

Migration Act 1958, ss 5CB, 5F, 65, 359AA

Migration Regulations 1994, r 1.15A, 2.03A, Schedule 2, cl 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 23 August 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 December 2014 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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(2)(a) because having considered all the evidence and information provided by the applicant, considered that it was not sufficient to demonstrate that the applicant is the spouse of defacto partner of the spouse, as defined under section 5F and 5 CB of the Migration Act.

BACKGROUND

1. Both the applicant and the spouse were born in China.  The applicant is 41 years of age.  He was first married in 2002 and subsequently divorced in 2005.  The applicant travelled to Australia in 2013 on a Visitor visa (FA-600) and was in Australia for approximately one month, departing on 20 January 2014. He returned to Australia on 5 September 2014.  He and the sponsor married on 19 November 2014.

2. The sponsor was previously married twice. The first time was in 1997 and she divorced in 2004. Later she married in 2008 and divorced in 2012.  She arrived in Australia on a Prospective Marriage visa on 28 May 2008.

3. The parties claimed they first met during Christmas of 2013 at a mutual friend’s Christmas function.  When the applicant returned to Australia in September 2014 they met again.  The Tribunal heard that the applicant asked for the sponsor’s phone number and started contacting her and inviting her out for meals and shopping.

4. The delegate who considered the application noted the following issues:

   a.a lack of documentary evidence regarding the financial aspects of their relationship.

   b.a lack of convincing documentary evidence that the parties are living together as a couple, sharing a household or the responsibilities of a household.

   c.although photos of a wedding ceremony were provided, as well as some other documentary evidence and a statutory declaration from the applicant’s sister and friend, the evidence was not convincing that they present themselves as a married couple to family or the wider community.

   d.despite the parties being married there was no evidence that they see the relationship as a long-term one, that they draw emotional support and companionship from each other or that they have a commitment to a shared life together.

5. Having considered all the evidence and information, the delegate was not satisfied the applicant meets the definition of spouse or de facto partner under section 5F or 5CB of the Migration Act and refused the application.

Information to the Tribunal

1. The applicant provided further information to the Tribunal including the following:

   a.photos of the wedding of the parties and at various other locations.

   b.statements of support from friends and relatives.

   c.driver’s license renewal of the sponsor.

   d.the sponsor’s toll notices.

   e.correspondence from Centrelink to the sponsor regarding her Newstart Allowance.

   f.correspondence from Medibank showing the parties are listed as beneficiaries on their private health insurance policy.

   g.correspondence from the Commonwealth Bank of Australia addressed to the visa applicant.

   h.bank account statements.

   i.correspondence from AIA.

   j.superannuation account summaries and other superannuation related correspondence addressed to the sponsor.

   k.correspondence from the Australian Taxation Office addressed separately to the sponsor and the applicant regarding their notices of assessment for the financial year ending 30 June 2016.

   l.correspondence to the applicant regarding Medicare eligibility.

   m.copies of the address labels various packages and envelopes addressed to either the visa applicant or the sponsor or both.

   n.photocopies of the parties with various people, in different settings including wedding photographs.

   o.e-birthday cards to the parties from the Revesby Workers Club.

   p.correspondence from the Bankstown District Sports Club to the applicant.

   q.a receipt for a water bottle, a pair of shoes receipt and for a tour to Canberra.

   r.correspondence from Toyota to the sponsor regarding her vehicle.

10) The applicant appeared before the Tribunal on 30 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the applicant’s sister, Ru LI, brother-in-law, Vincent Song WA and sister-in-law, Hai Ying XIAO. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

11) The applicant gave particulars as to the living arrangements of their relationship.

12) The applicant gave evidence that he was interested in the sponsor having first met her at Christmas when he first travelled to Australia in 2013.  When he returned to Australia on his second visit, the sponsor and her son were invited to his sister’s home for a meal. He had already established that she was single and found her to be a positive person which he found very attractive. Both parties gave evidence that the first time they went out together it was to a restaurant in Hurstville. On other occasions they went to Darling Harbour, Chinatown and the Opera house.

13) Approximately a month after he arrived in Australia, the applicant brought up the topic of marriage with the sponsor. He stated that he felt very comfortable with her and that they had spent time together and so he thought, “why not raise the subject”. The sponsor immediately agreed to the proposal after which the applicant met with her parents and the sponsor met with his mother and they sought their opinion and agreement.

14) For the following reasons, the Tribunal has concluded that the decision should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

15) The issue in the present case is whether the applicant is the spouse of the sponsoring partner

Whether the parties are in a spouse or de facto relationship

16) Clauses 820.211(2)(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. In the present case the applicant claims to be the spouse of the sponsor who is a Permanent Resident.

17) ‘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 husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion 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.

Are the parties validly married?

18) If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.  The parties were married on 19 November 2014[1]. There is nothing to indicate that the marriage between the parties is not valid. 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).

[1] DIBP file, folio 19.

Are the other requirements for a spousal relationship met?

Financial aspects

19) The Tribunal has considered financial matters such as whether the parties have any joint ownership of assets or joint liabilities, pooling of financial resources, any legal obligations owed to the party and any sharing of day-to-day household expenses. 

20) The parties provided copies of joint bank account statements.  The Tribunal heard evidence from the applicant that he commenced working in his current job approximately a year ago.  He stated that before that he did some painting work occasionally which he commenced doing at the beginning of 2015.  The Tribunal confirmed that the applicant did not work after he arrived in Australia until he commenced the painting jobs in early 2015.

21) The applicant now works three days per week in his brother-in-law’s import business as a warehouse manager.  While working there he is also learning how to manage a business so he can open a similar business. He stated that he earns around $500pw and is mostly paid in cash.  The applicant indicated that the sponsor works for a restaurant in Hurstville as a pastry chef and that she earns $1,800 per week, after tax.  He stated that her wages are transferred to her own bank account.

22) The sponsor gave evidence consistent with that of the applicant regarding their employment, their salaries and the manner in which they are paid. 

23) The Tribunal discussed with both parties any joint assets they have.  The applicant referred to the joint bank account noting that their salaries are not paid into that account. The applicant explained that the sponsor has her own bank account. He stated that after they married she would take out money from her own bank account and deposit it into the joint account; usually on Thursdays. The Tribunal asked the applicant why the sponsor has not arranged to have her salary paid directly into the joint bank account. He responded that she is accustomed to using her own bank account and they consider that it is too much trouble to change the arrangements. He stated that for approximately the past year this is the arrangement that has been working for them. The sponsor similarly stated that she transferred money to the joint bank account for groceries and daily expenses. She stated that she has been doing regular transfers since either October or November 2016.

24) Given the oral evidence regarding the payment of their salaries and when the applicant first started working, under the provisions of s 359AA of the Migration Act, the Tribunal asked the applicant about documents that had been provided to the Department as part of the visa application. These documents were instructions to the payroll offices in respect of both the visa applicant and the sponsor. The instructions request that their salaries be paid to their joint bank account and are dated 19 November 2014. In discussing these documents with the applicant, the Tribunal noted that they were dated the same date on which the parties married, which gave the appearance that they were obtaining documents they considered necessary for the visa application.

25) The applicant was unable to explain the reasons why such instructions to the payroll officer had been submitted and appeared confused.  He sought additional time to comment on or respond to the information.

26) Following the hearing the applicant provided a written submission responding to the Tribunal’s questions regarding the payroll instruction.  It states:

“I have approached the commonwealth bank (Bankstown branch) in regarding “the letter of instruction to Payroll Officer” yesterday. A female staff called Li confirms that the Commonwealth Bank usually gives new clients “the letter of instruction to Payroll Officer” when they open an account in the bank. When we launched the application of spouse visa, we provided all documents we had on hand (included such complimentary “the letter of instruction to Payroll Officer”). We have never requested the bank issued such letter to the employer on our behalf. Both of us didn’t recall we had received “the letter of instruction to Payroll Officer”. My wife Haichun Xiao’s English is limited, she saves her personal bank account details for salary payment in her mobile phone and gives to her employers when she changes jobs”[2].

[2] AAT file, folio 131.

27) The Tribunal is prepared to accept that a bank may provide a template that its customers can use to instruct employers where their salary should be credited. The Tribunal also accepts that the applicant and the sponsor did not request the Commonwealth Bank to issue the instruction to their employers.  The Tribunal notes that the documents provided by the applicant included the applicant’s and the sponsor’s names and address details.  The Tribunal finds it difficult to accept that the bank provides letters on behalf of each customer specifically addressed.  Regardless, the applicant provided the documents to the Department in support of his application. The Tribunal considers that it is the applicant’s responsibility to be mindful of what documentation is provided as evidence. Despite the applicant’s explanation, the Tribunal is concerned that the documents were submitted to give the Tribunal a false and misleading impression as to the parties’ financial circumstances. .

28) The Tribunal asked the applicant why he and the sponsor started using the joint bank account for their daily expenses late in 2016. The Tribunal notes that the evidence before it indicates that in the period 1 January 2016 to 25 July 2016 there were three cash deposits made into the joint bank account - on 16 February 2016, 25 June 25 July 2017[3].  From 6 September 2016 approximately two deposits per month started to be made into the joint bank account. The Tribunal put it to the applicant that it appeared that these more regular deposits may have commenced following the department’s refusal of the Partner visa application which was dated 23 August 2016. The applicant responded that it was because they wanted to buy a house. The Tribunal explained to the applicant that his response did not satisfy it because they could save for a house irrespective of which account was used.  The applicant stated that prior to that they did not intentionally save money.  The Tribunal was not satisfied that the applicant’s explanation clarified why regular deposits stated to be made into the joint bank account from early September 2016 and not earlier.

[3] AAT file, folios 56G & 56H.

29) Furthermore, the Tribunal had concerns that in the period 1 January 2016 until 30 June 2016 of the 17 transactions in five related to Medibank Private payments and one related to a payment to the Bankstown Sports Club[4]. Both of these were provided as evidence of the genuineness of the relationship.

[4] Ibid, folios 56G & 56H.

30) On the face of it, it appears that the account was established to give the appearance of a joint bank account and would appear to substantiate that the applicant and the sponsor had pooled their financial resources.

31) The applicant referred to the only other asset being the car purchased by the sponsor. At hearing the Tribunal put to the applicant that the documentation regarding the car indicates that the car is in his wife’s name. The applicant explained that he when they purchased the car did not have a license.

32) While the parties gave consistent evidence regarding their employment, their salaries and the manner in which they are paid, the Tribunal considers that such evidence can easily be rehearsed.  Overall based on the evidence before it the Tribunal could not be satisfied in relation to the financial aspects of the relationship and had concerns that the evidence provided was deliberately misleading.

Household

33) The Tribunal has had regard to information the parties have provided about their living arrangements and any sharing of housework and any joint responsibility for care and support of children.

34) They claimed to be living with the sponsor’s sister, husband and three children and therefore do not own or rent a property themselves.

35) The applicant claimed that he initially lived with his sister from the time he arrived in Australia on his second visit in September 2014 until he and the sponsor married in October 2014. He stated that after that he moved to his wife’s residencewith her sister and her sister’s family.  The sponsor on the other hand stated that the applicant moved in to her residence after he proposed to her, that is, before they married.

36) The applicant and the sponsor provided consistent evidence regarding their daily routines.  Both the review and the visa applicant said that these sponsor’s son is currently undertaking the Higher School Certificate.

37) The Tribunal put some weight on the consistent evidence provided by the parties.  Nevertheless, the Tribunal was concerned that the parties gave inconsistent evidence regarding the timing of the applicant’s move to reside with the sponsor.  Overall, the Tribunal is not satisfied that there is strong or enough evidence that the parties lived together as spouses at the time of the application or that they intend to live together in a household in the future in a genuine married relationship they consider to be long-term.

Social aspects

38) The Tribunal has turned its mind to evidence that demonstrates whether the parties represent themselves to other people as being married to each other; the opinion of friends and relatives about the nature of the relationship; and any basis on which the parties undertake joint social activities.

39) The parties provided numerous photos of themselves and various social events and in different locations. The photos include a photo of themselves at what appears to be their wedding ceremony. Written statements have been provided by relatives (the applicant’s sister, brother-in-law, and the sponsor sister) and one friend claiming that the parties represent themselves as being in a married relationship and that this relationship is recognised as genuine.

40) The parties both referred to their interest in having a daughter, as they both have sons.  The Tribunal notes that the sponsor is now 41 years of age and the parties have now been married for almost three years.  Neither party indicated whether they had already attempted to conceive.  The applicant indicated that he intends to have his fifteen year old join in Australia if he is successful in obtaining a visa.

Evidence presented by witnesses

41) The Tribunal heard evidence from the applicant’s sister, brother-in-law and sister-in-law.  The applicant sister confirmed that the applicant first met the sponsor at Christmas 2013 and – when the applicant returned to Australia she invited the sponsor and her sister to their home for a meal. The Tribunal discussed with her the timing of the applicant’s proposal to the sponsor and questioned the speed at which this occurred - approximately a month after his return to Australia in September 2014. In response she stated that in China there is such a thing as “love at first sight”.

42) The sponsor’s sister also confirmed the evidence provided by the parties regarding how the applicant and sponsor first met. She went on to say that she and the applicant’s sister thought that the applicant and the sponsor were well suited for each other so they set up the environment for the applicant and the sponsor to date each other.

43) The applicant’s brother-in-law referred to the applicant and the sponsor being suitable for each other because of their personalities. He described the sponsor as being quite ambitious and the applicant as tolerant and therefore they are suitable together.

44) The Tribunal accepts that the parties’ support the relationship as being genuine and continuing.  The Tribunal also accepts the photographic evidence that the parties in various settings with some family members and friends.  However, overall the evidence presented was limited and did not satisfy the Tribunal that the parties marriage was entered into for the purpose of a genuine long-term commitment to a shared life together.

Commitment to each other

45) The Tribunal has considered the evidence before it that is intended to demonstrate their commitment to each other.

46) The parties first met at a Christmas celebration at a mutual friend’s house in December 2013 when the applicant was in Australia for approximately one month. In evidence provided by the parties the applicant proposed to the sponsor within weeks of his return to Australia in 2014 and they married some 75 days after he arrived in Australia. No explanation was provided as to the reason that there was an imperative for them to marry at that time.  When questioned about the speed of the proposal and marriage.  Responses made by the applicant was that he was ‘very comfortable with the sponsor’ and the sponsor stated that the proposal was a surprise to her and that she hesitated ‘for a bit’.

47) The Tribunal indicated to the applicant it was concerned about the length of time that he and the sponsor knew each other before he proposed. The Tribunal explained that it appeared that the marriage was one of convenience in order for him to obtain a Partner visa.  The applicant stated that he understands the Tribunal’s concerns but would like the Tribunal to fully consider his situation.

48) While the Tribunal accepts that the parties have lived together since they married, the Tribunal has considerable concerns about the timing of the development of this relationship. Given the evidence presented by the applicants and their witnesses, the Tribunal is not convinced that the parties and could have developed an understanding of each other could have formed a genuine commitment to the relationship in such a short period.  Consequently the Tribunal was not satisfied that the parties are in a genuine marriage and have a mutual commitment to a shared life together.

Nature of household

49) The Tribunal in in reaching its decision also considered the nature of the household – shared by the parties, including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

50) The Tribunal heard that because the parties live with the sponsor’s sister who is not in paid employment, she does most of the household chores. The sponsor cooks because she is trained and likes to do so. The applicant occasionally helps his sister-in-law by mopping the floor and doing the lawn. The applicant stated that in relation to laundry, whoever has the time will do that.

51) The Tribunal put some weight on the private health insurance documentation provided which showed that the sponsor was a beneficiary on the policy. 

52) However, overall, based on the evidence before it, the Tribunal was not satisfied that the parties share a household in the manner of two genuinely married people in a long-term relationship.

Conclusion

53) Based on the totality of the evidence before it, the Tribunal considers that while the parties are legally married, the Tribunal is not satisfied that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing and they lived together and not separately and apart on a permanent basis.  While a significant amount of documentary evidence was provided by the applicant, in the main it only served to substantiate that the parties have shared the same address. Most documents submitted were exclusively in the name of the sponsor.

54) As outlined elsewhere the Tribunal had concerns about the parties’ financial arrangements and documentation submitted to the Department and Tribunal in support of the application which appeared to be misleading. The Tribunal also has significant concerns about the timing of the relationship.

55) The Tribunal is therefore entitled to conclude, reasonably that the applicant does not have the documentary evidence necessary to further support the application and the oral evidence at hearing was not convincing.

56) 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 and the time of this decision.

57) Therefore the applicant does not meet cl.820.211(2)(a) and cl.820.221.

58) For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

DECISION

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

Linda Holub
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).

1. 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.

2. 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).