LI (Migration)

[2020] AATA 2155

LI (Migration) [2020] AATA 2155 (23 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs YINGYU LI

CASE NUMBER:  1906277

HOME AFFAIRS REFERENCE(S):          BCC2017/3973751

MEMBER:Steven Griffiths

DATE:23 January 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2) of Schedule 2 to the Regulations

·cl.820.221(1) of Schedule 2 to the Regulations

Statement made on 23 January 2020 at 3:30pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – spouse – validly married in Australia – financial, household and social aspects of relationship – nature of commitment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 820.211, 820.221

CASE

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 Home Affairs 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, Mrs. Yingyu Li, applied for the visa on 27 October 2017 on the basis of her relationship with her sponsor, Mr. Eric Giles. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.

4. The applicant appeared before the Tribunal on 23 January 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor and his parents.  

5. The applicant was represented by her registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file, additional information provided by the applicant and the oral evidence from the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGROUND OF THE EVIDENCE

9. Mrs. Li was born at Taishan, Guangdong, China, in 1993. Her parents, born 1962 & 1964, are divorced. 

10. Mr. Giles was born in Australia in 1995. His parent, born 1953 & 1955, and his sister, born 1989, live in Australia.

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Sponsor health insurance

    Sponsor accreditation as translator and interpreter

    Joint bank records, Commonwealth, for 1/9/17 to 31/12/19

    Sponsor Tax Returns for 16/17, 17/18 and 18/19 years

    105 photos

    Joint names accounts for telephone, flights & travel insurance, electricity and gas, car insurance, car ownership

    Proof of address documents

    Review application

    Form 888 Statement, Tingting Ye, friend of applicant, 10/8/19

    Form 888 Statement, Cuong Mach, friend of applicant, 11/8/19

    Form 888 Statement, Mara Lina Keen, mother of sponsor, 8/8/19

    Form 888 Statement, David Giles, father of applicant, 10/8/19

    Sponsor Statutory Declaration, 9/8/19

    Applicant Statutory Declaration, 9/8/19

    Migration Agent statement, 22/8/19

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

12. 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. The Tribunal accepts the sponsor is an Australian citizen by birth.  

    Whether the parties are in a spouse or de facto relationship

13. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

    In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

14. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with an Australian Certificate of Marriage as evidence of their marriage on 10 September 2017.

15. The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

16. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, the parties own three cars jointly but no real estate or other major assets was or is jointly owned by the parties. 

17. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.

18. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.

19. The Tribunal accepts the oral evidence of the applicant working at a business located at Adelaide Airport. 

20. The Tribunal accepts the documented and oral evidence of the sponsor being a carpenter working in the construction industry.   

21. The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of a joint names account being operated by the parties, into which the wage income of the applicant is deposited and the applicant makes regular transfer to, with the joint account used for household expenses, entertainment costs and all purchases.

22. The Tribunal accepts the oral evidence, confirmed independently by the parties, each having an individual bank account, noting the account of the sponsor is rarely used, with the account of the applicant used for saving purposes of the parties.

23. The Tribunal accepts the oral evidence, confirmed independently by the parties, of a joint names savings account being used with the intention of purchasing a home.

24. The Tribunal, from the documented and oral evidence of the parties, determines that at the time of the visa application and this decision, the financial arrangements of the parties confirm the pooling of financial resources in relation to major financial commitments and the sharing of day-to-day household costs. 

25. The Tribunal accepts the documented and oral evidence of the parties each having a superannuation account with the other shown as the beneficiary and determines, at the time of application and this decision, these arrangements to represent the pooling of financial resources, especially in relation to major financial commitments.

    Nature of the household aspects that must be considered include:-

    (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

26. The Tribunal accepts the oral evidence from the parties of while they have agreed to have children in their family, they do not have children at this time and do not have any responsibility for the care and support of children.

27. The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have lived together since September 2017, initially in Melbourne following their marriage, and in Adelaide since March 2018 at a home owned by the father of the sponsor.     

28. The Tribunal accepts the oral evidence, confirmed by the parties independently, on the roles each undertakes in the household and determines, at the time of application and this decision, the parties share the responsibility for housework.

    Social aspects of the relationship that must be considered include:-

    (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

29. The Tribunal accepts the photographic, documented and oral evidence and determines at the time of application and this decision that the parties were married on 10 September 2017 and represent themselves to other people as being married to each other. 

30. The Tribunal accepts the oral evidence of the parties on their intention to hold a wedding ceremony in China in the future, after they have purchased a home.

31. The Tribunal accepts the documented, photographic and oral evidence of family and friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.

32. The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, and determines, at the time of application and this decision, the parties plan and undertake joint social activities.

    Nature of the commitment to each other that must be considered include:-

    (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.

33. The Tribunal accepts the evidence of the parties meeting in December 2016, the relationship being acknowledged publicly from March 2017, became engaged on 6 August 2017 and marrying on 10 September 2017.

34. The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have lived together from September 2017 in Melbourne and from March 2018 in Adelaide.  

35. The Tribunal accepts the documented and oral evidence of the parties of the issues they have dealt with and the support provided to each other in getting over these obstacles and determines, at the time of application and this decision, that an extremely high level of companionship and emotional support is provided by each of the parties.

36. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other and see the relationship and marriage as being long-term.

37. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.

38. The Tribunal accepts that the parties have been in a committed relationship since March 2017, married in September 2017 and determines, at the time of the application and this decision, the parties live together.  

39. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and this decision. The Tribunal is further satisfied that the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

40. The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c), and as she was the holder of a substantive visa at the time of application, cl.820.211(2)(d) does not apply. Accordingly, the applicant meets cl.820.211(2). The applicant continues to meet these requirements at the time of decision and therefore meets cl.820.221(1). 

41. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

42. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.211(2) of Schedule 2 to the Regulations

    ·cl.820.221(1) of Schedule 2 to the Regulations

    Steven Griffiths
    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).