Li (Migration)

[2023] AATA 3757

Li (Migration) [2023] AATA 3757 (12 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wenjun Li

REPRESENTATIVE:  Mr Andrew Jakob Topalovic

CASE NUMBER:  1912212

HOME AFFAIRS REFERENCE(S):          BCC2014/2112343 BCC2019/22781

MEMBER:Anne Grant

DATE:12 May 2023

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:

·subclauses 801.221(6)(b) and (6)(c) of Schedule 2 to the Regulations

Statement made on 12 May 2023 at 8:43am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse)– the relationship has ceased – relationship did exist– applicant and sponsor were in a genuine and continuing de facto relationship over many years – sponsor’s lack of commitment to the visa applicant and the relationship itself – violence occurred while the de facto relationship existed between the visa applicant and sponsor – victim of family violence – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.09, 1.23, Schedule 2, cl 801.221

CASES
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 16 May 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 August 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 (Cth) (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 they were not satisfied that the visa applicant and the sponsor were de facto partners at the time of making the decision.  

4. The applicant appeared before the Tribunal on 27 April 2023 to give evidence and present arguments.  She gave her evidence in English.  

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing and made some submissions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was lodged on 26 August 2014.  At the time of application, the visa applicant and sponsor provided the following documents to the Department in support of their application: 

   ·Visa applicant’s birth certificate showing she was born on [date] in Hunan Province in China;

   ·Witness statutory declaration from Jenny Vong, the sponsor’s brother, dated 21 August 2014, in support of the relationship;

   ·Witness statutory declaration from Phong Huynh, the sponsor’s friend of 21 years, dated 16 August 2014, in support of the relationship;

   ·Sponsor’s various identity documents including Australian citizenship certificate, Australian passport, driver licence showing his citizenship and his date of birth as [date];

   ·Lease agreement in joint names for the property at [Address 1], for the period of 21 September 2013 to 20 September 2014;

   ·Dinner invitation sent to the sponsor from his classmate, dated 28 April 2014;

   ·Screenshot of the sponsor’s bank list of transaction in October 2012 December 2012, October 2013 and December 2013, showing the sponsor purchasing presents for the visa applicant;

   ·Membership to Melbourne International Film Festival, dated 24 July 2013;

   ·Email trail evidencing both parties are looking for an apartment together, dated 23 July 2013;

   ·Evidence of a Sydney trip: email trail and airline tickets in both parties’ names for a trip to Sydney in December 2012;

   ·Australian national police certificate dated 23 October 2014 showing the visa applicant has no disclosable court outcomes against her name;

   ·The People’s Republic of China police clearance certificate showing the visa applicant has no criminal record, dated 9 September 2015;

   ·Lease agreement in joint names for the property at [Address 1] for the period of 21 September 2013 to 20 September 2014

   ·Rental payment receipts addressed to both parties;

   ·Water bills in the sponsor’s name for the billing period of May to August 2014, at the address Apartment [Address 1];

   ·Internet bill in the sponsor’s name for the billing period of July to August 2015, at the address [Address 1];

   ·Electricity bill in the sponsor’s name, issued on 8 October 2014 at the address [Address 1];

   ·Police certificate confirming the visa applicant has no criminal or political offences, dated 24 August 2015;

   ·Photographs of both parties with family and friends between 2013 and 2015;

   ·Visa applicant’s Chinese passport showing she was born on [date] in Hunan, China;

8. In support of consideration of the subclass 801 visa consideration, the visa applicant and sponsor provided the following additional information to the Department:

   ·National police clearance certificate in the visa applicant’s name, showing there are no disclosable outcomes recorded against her, dated 13 December 2017;

   ·Sponsor’s relationship statement dated 4 January 2018. In summary, he states he and the visa applicant hold a joint lease since 2013. The utility bills are under his name and that he supported a larger portion of the household expenses up until mid-2014, as the visa applicant was a student. Around mid-2014 they co-founded a technology consulting business and in 2016 they developed a food and beverage concept and had invested around $1 million dollars and two years on the project. The funding came from the visa applicant while he contributed to strategies and business development. Once the business started to generate cash flow, the visa applicant began to contribute to household expenses. The sponsor has been very supportive of their start-up project and business venture. He lived overseas since early 2015 due to unfavourable conditions in the technology sector back home, and budget limitations, they could only meet once in the last 2 years. He states their relationship is known to both of their family and friends. The sponsor hosted the visa applicant’s mother and sister at their house. He states that when he lived in Melbourne they saw each other almost everyday. Now that he is overseas, they communicate regularly through online messaging and video chats.

   ·Witness statutory declaration from Yanzhuo Li, the visa applicant’s friend of 4 years, dated 2 January 2018, in support of the relationship;

   ·Witness statutory declaration from Fan Yu, the visa applicant’s ex-colleague, dated 31 December 2017, in support of the relationship;

   ·Photographs of both parties showing them having meals together;

   ·Rental payment receipts for the period of May to June 2018; July to August 2017; March to April 2017; October to November 2016; January to February 2016; April to May 2015; July to August 2015; March to April 2014; November to December 2013;

   ·Screenshot of email correspondence between both parties;

   ·Letter from conveyancer regarding the purchase of [Address 2];

   ·Statutory declaration from the sponsor, dated 7 March 2019;

   ·Westpac bank list of transactions for account ending xx-1427. It us unclear who the account holder is;

   ·Flight itinerary for the visa applicant, for travel to Vietnam on 13 September 2018;

   ·Home insurance certificate in joint names for the property at [Address 3];

   ·GP referral letter for the visa applicant to see a gynaecologist, dated 15 October 2018;

   ·Contract of sale of [Address 2], signed by the visa applicant;

   ·Certificate of title Victoria registered under the sponsor’s name, for [Address 2];

   ·Witness statutory declaration from Jenny Giaquinta, the sponsor’s sister, undated;

   ·Email correspondence between the visa applicant and the sponsor in July and November 2016;

   ·Visa issued to the visa applicant for entry to Vietnam for the period of December 2017 to January 2018;

   ·Witness statutory declaration from David Trung Nhan Vong, the sponsor’s brother, dated 8 March 2019, in support of the relationship;

   ·Visa applicant’s statement, undated;

   ·WeChat chat history between both parties;

   ·Internet bill in the sponsor’s name for the billing period of April to May 2015; December 2015 to January 2016; December to January 2017; November 2018 to February 2019, at the address [Address 1];

   ·Rental payment receipts for the period of May to June 2018; October 2018 to January 2019;

   ·Electricity bills and letter in the sponsor’s name, dated 31 January 2019, 30 July 2019, 24 October 2019, 5 February 2018, 21 November 2016, 7 December 2015, 6 May 2015, 12 September 2017 at the address [Address 1].

9. On 5 December 2022, the applicant provided the following documents to the Tribunal in support of their application for review:

   ·Legal submission from the representative, addressing the various criteria of the visa, dated 5 December 2022;

   ·Victoria police application for an intervention order for family violence, signed on 7 October 2013;

   ·Victorian family violence final intervention order naming the visa applicant as the protected person and the sponsor as the person who is subject to the order, dated 7 October 2013, valid until 7 October 2014;

   ·Witness statutory declaration from Jenny Giaquinta, the sponsor’s sister, dated 1 March 2019, in support of the relationship;

   ·Another copy of the Sponsor’s statutory declaration relationship statement dated 4 January 2018.

   ·Subclass 820 visa grant notice, dated 11 September 2015;

   ·ASIC current and historical company extract for GOLDEN STREAM PTY LTD where the visa applicant is listed as a co-director, and ANMEL PTY LTD where the visa applicant is listed as the sole director.

10. On 6 December 2022, the applicant provided the following documents to the Tribunal in support of their application for review:

    ·Visa applicant’s GP referral to a psychologist, dated 2 August 2022

11. Subsequent to the hearing, in response to concerns I raised during the hearing with some of the applicant’s evidence which seemed to suggest that she was not certain that the relationship had actually ceased, the applicant submitted some additional evidence. A submission was also provided arguing, in essence, that if I was not satisfied that the relationship had ceased, then I should find that the applicant and the sponsor’s relationship satisfies the definition in s.5CB of the Act. However, the applicant’s submission is that the relationship has ceased, and the visa applicant has suffered family violence perpetrated during the relationship, as described in subclause 801.221(6)(b) and (c) and as defined in regulation 1.23(4).  

12. In support of the post hearing submission, a declaration was provided by the sponsor’s sister, Jenny Giaquinta (nee Vong) in which she stated as follows:

    I am the sister of Robert Vong, born [date]. I have known him for the entirety of my life.
    2. I maintain sporadic contact with Robert Vong via electronic communications, as he resides
    permanently in the Socialist Republic of Vietnam and has done so for the preceeding several
    years.
    3. I am aware that Robert Vong was engaged in a relationship with Wenjun Li, and that this
    relationship existed from 2012 but has since ceased.
    4. In my correspondence with my brother, he has explicitly expressed to me that he is no longer in a
    relationship with Wenjun Li.
    5. It is my impression from my conversations with my brother, and his representations to me, that
    he does not consider himself to be in a relationship with Wenjun Li, nor has any desire to be in a
    relationship with Wenjun Li. I regard this as consistent with my general observations of his
    current circumstances, as he has neither resided with nor seen Wenjun Li since 2020.
    6. It is further my impression from my conversations with my brother that he possesses no intention of repatriating to Australia at any point in the foreseeable future.

13. Also provided was the applicant’s dating profile on an online dating website. 

14. The issues in the present case are

    a)   whether the visa applicant is the de facto partner of the sponsoring partner at the time of making this decision; and if not

    b)   whether the relationship has ceased and the exception in subclause 801.221(6)(c) applies.      

    Whether the parties are in a spouse or de facto relationship

15. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner 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 Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claimed to have been the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

    Are the parties in a de facto relationship?

16. ‘De facto partner’ is defined in s 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

17. In forming an opinion whether they are in a de facto relationship, consideration must be given 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 reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    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; any sharing of day-to-day household expenses

18. The evidence reflects that visa applicant and sponsor rented a property at Latrobe Street in Melbourne but the sponsor departed Australia in February 2015 and has not returned.  Since his departure, and while she was living in the rental property, the visa applicant gave evidence that she generally pays the rent and the bills, but she relied on the sponsor for financial and business advice during the period when she was establishing her businesses.  At the time the sponsor departed Australia, she gave evidence that they did not expect him to be gone for so long.  The evidence given also reflects that the visa applicant and sponsor have always maintained separate finances, but they have also shared financial decisions and made plans for their joint future.  For example, in December 2018, the visa applicant contributed $185,000 and her parents $200,000 for the purchase of a property in Carlton which was placed in the sponsor’s name. The visa applicant now lives in this property. The visa applicant gave evidence that even though the sponsor did not contribute to the purchase price, she considers that they jointly own it because it was part of their joint plans. When asked why the property was in his sole name, the visa applicant explained that there would have been higher stamp duty payable if she had put the property into her own name due to her temporary residence status and she considered it to be an investment into their future. She gave evidence that during arguments over later years, they have discussed selling the property and the visa applicant confirmed that the sponsor considers that he has some interest in the property.  His consent would be required to sell it.  

19. I have considered the matters in regulation 1.09A(3)(a).  Because the applicant and sponsor have lived separately for so long, I do not consider that the separation of their day-to-day financial affairs in this case necessarily indicates that the parties are not (and were not) in a genuine relationship. Examination of their chat records during 2015 - 2018 reflect frequent discussions about money, including some financial support provided by the visa applicant to the sponsor.  It also reflects that the sponsor was aware of the balance of bank accounts, the payment of rent, and also the costs and difficulties the visa applicant experienced with her businesses.  I consider that overall, the financial aspects of the relationship suggest that the visa applicant and sponsor continue to have intertwined personal financial affairs indicative of a long-term relationship.

    Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

20. The parties have not shared a home since 2015. There are no children to be cared for and no household chores to be shared. I accept the visa applicant’s evidence that she lives an independent life given the sponsor’s physical isolation from her. I accept that when she visited him in 2018 and 2019 that she stayed with him at his family home, and that he lives with his family in Vietnam.  I asked the applicant if she thought that the sponsor would ever return to Australia, and she responded that she honestly believes that he will do so once his mother dies.  He feels that he has a responsibility to care for his mother. The evidence reflects that the sponsor assisted the applicant with technological advice about internet, phone and also about liaising with landlords and real estate agents from time to time over the years of their physical separation. I asked where she thought the sponsor would live if he returned to Australia and she indicated that she would expect him to come to their home.  That is what she has worked so hard for, to establish their home to share and perhaps to have children.  The visa applicant became upset when describing this, saying that she has been alone a very long time and she has found this too hard, has given up; and she can’t wait any longer.  She said she has felt like this since the pandemic, which she had to manage and get through on her own. Consideration of the nature of the household suggests they each keep quite separate households, and that the relationship has ended, given their physical separation and the sponsor’s failure to return to Australia even once since 2015.   

    Social aspects of the relationship

21. The provision of supporting declarations from friends and family suggests that the visa applicant and sponsor have in the past been considered a couple, and have presented themselves in that manner.  In the intervention order, the parties were described as ‘de facto partners’.  I am satisfied that the visa applicant and sponsor have previously presented to friends, family, authorities and businesses as a couple. Consideration of this aspect suggests that the applicant and sponsor have been in a de facto relationship over many years, characterised over recent years by limited physical contact due to the sponsor’s residence overseas.

    Nature of persons’ commitment to each other

1. Based on the visa applicant’s evidence, and considering the nature of communication between them over the years that they were separated and until relatively recently, I am satisfied that even after their physical separation from 2015, the applicant and sponsor relied on each other for emotional and practical support. The visa applicant gave evidence, and I accept, that they still chat online from time to time.  I am satisfied that the applicant and sponsor were in a genuine and continuing de facto relationship over many years, including after the family violence occurred.  I find that the latter part of their relationship was characterised by physical separation after the sponsor moved (and remains) overseas but I am satisfied that, for some years after the sponsor departed, the parties remained committed to one another and the relationship.

2. However in this case, the visa applicant has intimated that over the years of the Covid19 pandemic, the relationship has come to an end because of the sponsor’s failure to support her emotionally and return to Australia at that time.  Given the nature of her evidence, I am not satisfied that the visa applicant has ruled out a reconciliation at some point in the future.  However, I have taken into consideration and accept the information in the most recent statement from the sponsor’s sister, the applicant’s dating profile and the fact that the visa applicant gave evidence that she didn’t even tell the sponsor about the hearing or ask him to participate.  I consider that the existence of the applicant’s dating profile is some evidence that the visa applicant has now moved on (or is trying to do so), from the relationship. On balance, I am satisfied that over the last few years, the relationship has ceased due to the sponsor’s lack of commitment to the visa applicant and the relationship itself.  I accept, based on the sponsor’s sister’s statement that he has no current intention to return to Australia and that the sponsor considers the relationship to be at an end.

3. I am therefore satisfied that the parties no longer have a mutual commitment to a relationship with each other to the exclusion of others, and that they now live separately and apart on a permanent basis.    

4. On the basis of the above, I am satisfied that the visa applicant and sponsor were previously in a de facto relationship but I find  that the requirements of s 5CB(2) are not met at the time of this decision, because the relationship has ceased. Therefore, the applicant does not meet cl 801.221(2)(c).

   The exception in clause 801.221(6)

5. The visa applicant has provided evidence demonstrating that the visa applicant suffered family violence committed by the sponsoring partner.  That evidence reflects that the sponsor was the subject of a final intervention order dated 7 October 2013 protecting the visa applicant after being given an opportunity to be heard and the information for which outlined the circumstances of a violent assault on the visa applicant which took place on 3 October 2013.  The evidence reflects and I am satisfied that the relationship between the visa applicant and sponsor continued after this incident, but that from 2015 they were living in different countries.  Based on the information and evidence before me, including the visa applicant’s oral evidence and the sponsor’s statement lodged in support of the visa application in 2018, I have found that the visa applicant and the sponsor were still in and mutually I am satisfied that they were still in a de facto relationship until 2019, when the visa applicant purchased a property and put it in the sponsor’s name.  I find that the relationship ceased after the onset of the COVID19 pandemic, though an exact date is not available. 

6. Having considered the length and history of their relationship, I am satisfied that the applicant would have met the criteria in cl 801.221(2) except that the relationship between the applicant and the sponsor has ceased.  The applicant satisfies cl 801.221(6)(b).

7. Regulation 1.23 of the Migration Regulations explains when a person is taken to have suffered family violence. According to sub-regulation 1.23(4), the alleged victim is taken to have suffered family violence, and the alleged perpetrator to have committed family violence, if a court of a state or Territory has made an order for the protection of the alleged victim against the alleged perpetrator, and the order was made after the alleged perpetrator was given an opportunity to be heard.

8. The final intervention order provided in this case is made by the Victorian Magistrates’ Court for the protection of the visa applicant from the sponsor.  The order outlines that the sponsor was served with a copy of the application, was at court, and consented without admission of allegations and agreed to the order being made.

9. I find that the conditions in sub-regulation 1.23(4) are satisfied.  The applicant is therefore taken to have suffered family violence perpetrated by the sponsor. I am also satisfied that, as required by sub-regulation 1.23(5), the violence occurred while the de facto relationship existed between the visa applicant and sponsor. I am therefore satisfied that the conditions in subclause 801.211(6)(b) and (c) are satisfied.  

10. 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

11. 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:

    ·clauses 801.221(6)(b) and 801.221(6)(c) of Schedule 2 to the Regulations

    Anne Grant
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).