LIANG (Migration)

[2020] AATA 4109

LIANG (Migration) [2020] AATA 4109 (31 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shujun LIANG

CASE NUMBER:  1908605

HOME AFFAIRS REFERENCE(S):          BCC2016/774865

MEMBER:Steven Griffiths

DATE:31 July 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 31 July 2020 at 2:02pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased and sponsorship withdrawn – validly married – nature of commitment – sponsor not committed to the exclusion of all others – contacts with other women and suggestion of an open marriage – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(2)(a), 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 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, Ms Shujun Liang, applied for the visa on 24 February 2016 on the basis of her relationship with her sponsor, Mr. Xinyi Fan. 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The Tribunal notes the parties separated on 17 March 2017.

4. The Tribunal notes the sponsor withdrew his sponsorship of the visa applicant on 29 March 2017.

5. The Tribunal notes the submission by the applicant on 9 May 2017 that she had separated from the sponsor due to family violence.

6. The Tribunal notes the parties divorced in August 2018.

7. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 or cl.820.221 because the delegate was not satisfied the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor, in the period immediately prior to the separation of the parties, as at the time of decision on 29 March 2019 they were no longer in a spousal or de-facto relationship.

8. The applicant appeared before the Tribunal on 30 July 2020 to give evidence, respond to questions and present arguments, with evidence also provided by two friends of the applicant. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. 

9. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams Video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams Video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams Video. No concerns were raised by the parties on holding a Microsoft Teams Video hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.  

10. The applicant was represented by her registered migration agent, who took part in the hearing.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    ISSUE

13. 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 at the time of the visa application and the period immediately prior to their separation on 17 March 2017.

    BACKGROUND OF THE EVIDENCE

14. Ms. Liang was born in Guangdong, China, in 1682. Her parents, born 1950 & 1954, live in China and are divorced, with her mother remarrying in 1996. She has a half-sister, born in 1990, living in the United States of America. She was married to another from December 2009 to April 2012, with no children. She first arrived in Australia in February 2015 on a Visitor 600 Visa to cease 9 March 2016, being a series of Bridging Visas from 24 February 2016, departing Australia and returning seven times in total to 1 October 2017.

15. Mr. Fan was born in Shanghai, China, in 1978. His parents, born 1949 & 1951, live in China. He arrived in Australia on 23 February 2008 and is an Australian Citizen by Grant. 

    INFORMATION TO THE TRIBUNAL

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

    Social media, 2014, first meeting in China, and sponsor invitation to visit Australia

    Details from October 2019 of Property Settlement proposal

    Parties relationship in 2017, sponsor family visit to Australia

    Suggestion of applicant hosting guide dog for raising puppy in 2015.

    Statement 20/3/20 by friend of applicant who collected her 18 March 2017 following break up including suggestion of open relationship.

    Social media pages of parties from 2016.

    June and July 2017 WeChat between applicant and friend Calvin.

    Statement by applicant on support she provided to the Sponsor for his soccer umpiring, 2015-2017

    14 pages of photos, WeChat between parties from 2017 to 2017

    21 pages of details of home purchase inspections / discussions / reviews by parties – November 2016 to March 2017

    Statement by tenant of parties home from January 2017 on the spousal arrangement.

    Text messages between the parties on surgery requirements of applicant post relationship breakup and invoices for costs, with these met by the sponsor.

    Statement by Yun Wang, friend of applicant, on spousal relationship 18/3/20

    30 pages of information on parties relationship in 2016

    Details of gifts between the parties.

    Statement by Mr. Li Sun, friend of parties, on spousal relationship, 18/3/20

    15 pages of information on parties relationship in 2015

    WeChat history on sponsor taking $ 4000 USD of applicant and giving to his father – no comments from sponsor

    12 pages of photos and distribution by social media to friends of the applicant

    9/12/15 Social media posting by applicant of engagement with sponsor

    WeChat between applicant and marriage counsellor, June to August 2017

    Applicant and sponsor learning to dive - photos

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

17. 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 documented evidence of the sponsor being an Australian citizen by grant.     

    Whether the parties are in a spouse or de facto relationship

18. ‘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).

19. 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?

20. 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 dated 12 February 2016. 

21. 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

22. The Tribunal determines from the documented and oral evidence of the applicant that at the time of the visa application and immediately prior to the separation of the parties, the parties did not have joint ownership of real estate or other major assets.

23. The Tribunal determines from the documented and oral evidence of the applicant that at the time of the visa application and immediately prior to the separation of the parties, the parties did not have any joint liabilities.  

24. The Tribunal determines from the oral evidence of the applicant that at the time of the visa application and separation of the parties, the did not have a legal obligation with regard to the other.

25. The Tribunal accepts the oral evidence of the applicant that the sponsor was an accountant and provided her with all financial advice on how to structure their finances. 

26. The Tribunal notes the oral evidence of the applicant that the financial advice of the sponsor included that she was not to transfer funds she held in a bank in China to Australia as doing so would incur tax liabilities.   

27. The Tribunal accepts the documented and oral evidence of the applicant operating a part-time home-based business at the time of the separation of the parties.  

28. The Tribunal accepts the documented and oral evidence of the applicant of the finances of the parties being a joint name bank account, the applicant operating accounts in her name only with a bank based in China and the sponsor operating accounts in his name only with a bank based in Australia.

29. The Tribunal notes the joint names bank account operated by the parties was not used often, and when used was based on small balances, with any excess funds always transferred by the sponsor to his sole name bank account, and places weight on this.

30. The Tribunal accepts the documented and oral evidence of the applicant that she provided lump sum cash amounts to the sponsor, in Australian and American dollars, which the sponsor deposited into his own name account only, as her contribution to finances of the parties, and places weight on this.

31. The Tribunal accepts the documented and oral evidence of the applicant that she near exclusively used her bank accounts from a bank in China to pay for goods purchased in Australia for the parties, and friends and family, paying the cost of these purchases from her accumulated savings held in a bank in China, with the applicant confirming the sponsor never reimbursed her for any of the purchases made using her sole name transaction card.

32. The Tribunal notes the oral evidence of the applicant that the sponsor provided her with a secondary card for a bank account operated in his name only, with this card used by the applicant approximately twice per month and when she did not have her own transaction card with her and determines that with no evidence provided of this secondary card and use in purchases is not considered in the decision to be made.

33. The Tribunal notes that no banking records of the sponsor were provided for consideration to determine if any contributions were made by the applicant to the day-to-day household expenses of the parties.

34. The Tribunal accepts the oral evidence of the applicant that she was not aware if she was the nominated beneficiary of the superannuation account of the sponsor, with this account at the time of separation having $ 164,314 in it, and places weight on this.

35. The Tribunal accepts the oral evidence of the applicant that for a period the parties lived together a tenant was in the house with them, and when the tenant paid rent and the applicant accepted it, she provided the cash to the sponsor, and places weighty on this.

36. The Tribunal accepts the documented and oral evidence of the applicant that the home the parties lived in was purchased by the sponsor prior to the relationship commencing and was registered in the name of the sponsor only.

37. The Tribunal accepts the documented of all accounts for services to the home of the parties was in the name of the sponsor only, and was not changed to include the name of the applicant as the sponsor stated it was a “hassle” and “he was too busy” and places weight on this.

38. The Tribunal accepts the documented and oral evidence of the applicant that with the sponsor they were actively pursuing the purchase of a home together from January 2017, attended numerous auctions and bid on three properties, with a home not purchased, and places weight on this.

39. The Tribunal notes that no documented evidence was provided of bank finance pre-approval for a loan was provided, with the Tribunal unable to determine if the actual intent of the parties, principally the sponsor, had been to purchase the home in joint names and places weight on this.

40. The Tribunal notes the documented and oral evidence of the applicant of the sponsor asking her to make contact with people in China seeking to borrow $ 100,000 Australian for the purchase of a home, with the applicant advising the hearing that she had support for this, while not providing any documented evidence of agreement or terms of such a loan.

41. The Tribunal determines from the evidence that at the time of the visa application and immediately prior to the separation of the parties they do not pool financial resources, especially in relation to major financial commitments.

42. The Tribunal determines from the evidence that at the time of the visa applicant and immediately prior to the separation of the parties they do not share day-to-day household expenses. 

    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

43. The Tribunal accepts the parties do not have children and had no responsibility for the joint care and support of children at the time of the visa application or immediately prior to the seperation.

44. The Tribunal accepts the documented and oral evidence of the applicant that the applicant lived with sponsor when she was in Australia for all periods between 2 February 2015 to 17 March 2017, when the parties separated, other than an approximate 2-day period in December 2015 after the parties had argued.

45. The Tribunal accepts the photographic, documented and oral evidence of the applicant of the living arrangements of the parties and determines, at the time of application and immediately prior to the separation of the parties, they lived together in home owned solely by the sponsor.

46. The Tribunal notes the conflicting documented evidence of household arrangements with regard to grocery shopping, with the visa application of February 2016 noting the sponsor undertook this role, while a submission from the applicant of December 2017 stating she undertook the role as her husband was too busy, and places weight on this.

47. The Tribunal accepts the documented evidence that the applicant undertook all housework for the parties and places weight on this.

48. The Tribunal accepts the documented evidence that the sponsor undertook the outside gardening of the home every two weeks, and he washed the dishes after dinners, and places weight on this.

49. The Tribunal notes the documented, photographic and oral evidence of the applicant on the roles each undertook in the household, and determines, at the time of application and immediately prior to the separation of the parties, the parties shared 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

50. The Tribunal accepts the photographic, documented and oral evidence and determines at the time of application and this decision that the parties were married in Australia on 12 February 2016, with a small number of people present, including the mother of the applicant and her best friend who had both travelled from China, and represent themselves to other people at all times as being married to each other.

51. The Tribunal accepts the documented, photographic and oral evidence of the applicant and two witnesses at the hearing and determines, at the time of application and immediately prior to the separation of the parties, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.

52. The Tribunal accepts the photographic, documented and oral evidence of the applicant and determines, at the time of application and immediately prior to the separation of the parties, the parties planned and undertook 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.

53. The Tribunal accepts the documented and oral evidence of the applicant that the parties were first in contact with each other from January 2014 through a dating website, physically meeting in China in August 2014, the applicant first travelling to Australia in February 2015 for a month, then in April 2015 for 3 months, then in July 2015 for 2 months and then in September 2015, with the parties at this time committing to a shared life together with the support of both families following a dinner in China, becoming engaged on 9 December 2015, marrying on 12 February 2016, separating on 17 March 2017 and divorcing in August 2018.

54. The Tribunal accepts the documented and oral evidence of the applicant that the applicant lived with sponsor when she was in Australia for all periods between 2 February 2015 to 17 March 2017 when the parties separated, other than an approximate 2-day period in December 2015 after the parties had argued.

55. The Tribunal accepts the documented and oral evidence of the applicant of having concerns on the sponsor spending time with another women in Bali, when he had told her he was in Singapore on business, prior to the engagement of the parties and when bringing these concern to the sponsor he held her pinned to a bed for several hours, while denying the claims, and the parties then living apart for several days until the sponsor, during a meal with friends and the applicant, stated his commitment to the applicant, deleted contact details of other women from his phone and asked for her to come home with him, and places weight on this.

56. The Tribunal accepts the oral evidence of the applicant that she later discovered that the act of the sponsor of deleting the contact details of these other women from his phone had no real result, as he had externally backed up these details 2 months before and thus had access, and places weight on this.

1. The Tribunal accepts the oral evidence of the applicant that the sponsor would not allow her access to his mobile phone, having it with him at all times, with the applicant stating she believed he did this as the phone would show evidence of contact with other women, and places weight on this.

2. The Tribunal accepts the documented and oral evidence of the applicant of an occasion when the parties were holidaying in China in which it was necessary for the sponsor to make payment for bills using electronic methods and the applicant became aware of money transfers made to another women, with the applicant then leaving the sponsor and travelling to the home of her parents, and places weight on this.

3. The Tribunal accepts the oral evidence of the applicant that the sponsor then travelled to the home of the applicant’s parents, expressed his commitment to her and her parents encouraged her to continue the relationship and marriage and return to Australia with him.

4. The Tribunal accepts the documented and oral evidence of the applicant that the parents of the sponsor were living in the house of the parties during a discussion about the actions of the sponsor in being in contact with other women, and were told by the sponsor to not get involved, and places weight on this.

5. The Tribunal accepts the oral evidence of the applicant that she believes for the whole time of her relationship with the sponsor that he was interested in other women, while also stating that she believed he did not have a physical relationship with any other women after the time of their marriage, and places weight on this.

6. The Tribunal notes the oral evidence of the applicant that the sponsor continually told her that she was his ideal partner, that he wanted to purchase a house with her and wanted to have children with her, and places weight on this.

7. The Tribunal notes the sponsor withdrew his sponsorship of the visa application of the applicant 12 days after the parties separated, and before counselling was undertaken, and places weight on this. 

8. The Tribunal determines from a review of the documented, photographic and oral evidence of the applicant that at the time of the application and period immediately prior to the separation that multiple examples have been provided of where the applicant questioned the commitment of the sponsor to her, with periods also noted of where the sponsor was kind and supportive, that the concerns regularly expressed by the applicant created a situation in which the companionship and emotional support was always compromised, at the time of the visa application and the period immediately prior to the separation of the parties.   

9. The Tribunal accepts the documented and oral evidence of the applicant that in April 2017 the sponsor suggested to her that the relationship continue as a “open marriage”, with the sponsor having permission to be with other women and places weight on this.

10. The Tribunal accepts the documented and oral evidence of the applicant that she was in love with her husband and committed to him, while determining that all times she was concerned about his commitment to her to the exclusion of all others, and places weight on this.

11. The Tribunal determines from the documented and oral evidence of the applicant that the sponsor was not committed to the applicant to the exclusion of all others, and places weight on this.

12. The Tribunal determines from the documented and oral evidence of the sponsor that at the time of application and immediately prior to the separation of the parties, that the parties were not mutually commitment to each other and did not mutually see the relationship and marriage as being long-term.

13. 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 immediately prior to the separation, the parties had not and did not 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.

14. The Tribunal accepts that the parties have been in a relationship since August 2014,  became engaged on 9 December 2016, married on 12 February 2016 and determines, at the time of the application and immediately prior to the separation, lived together from 2 February 2015 for all times, other than approximately 2 days soon after the engagement following an argument.  

15. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of the visa application or immediately prior to their separation.

16. Therefore, the applicant does not meet cl.820.211(2)(a) or cl.820.221(3).

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

    DECISION

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

    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).