LIM (Migration)

LIM (Migration) [2021] AATA 5608 (24 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ho Gan LIM
CASE NUMBER:  2016570
HOME AFFAIRS REFERENCE(S): BCC2016/2387600 BCC2019/6643710
MEMBER:P. Wood
DATE:24 August 2021
PLACE OF DECISION:  Melbourne, Victoria
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 24 August 2021 at 12:43pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – Tribunal is not convinced that the applicant isn’t in fact in a relationship with Ms Lu – not satisfied the relationship between the parties was genuine and continuing – applicant was not the holder of a substantive visa at the time of application – mental health condition – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 376
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, Schedule 3
statement of decision and reasons
application for review

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 (Cth) (the Act).
The applicant applied for the visa on 15 July 2016 on the basis of his relationship with his sponsor. 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant.
The application was refused by a delegate on 20 November 2019. The delegate refused to grant the visa because they were not satisfied that the applicant met cl 820.211(d)(ii), requiring the applicant to satisfy schedule 3 criteria. The applicant applied to the Tribunal for review of this decision and on 13 March 2020 the Tribunal, differently constituted, set aside the decision of the delegate and remitted the application to the Department of Home Affairs on the basis that the applicant met cl 820.221(2)(d)(ii).
On 12 November 2020 a delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because they were not satisfied that the parties were in a genuine spousal relationship.
The applicant was represented in relation to the review by his registered migration agent.
The applicant was invited to appear before the Tribunal on 12 March 2021 to give evidence and present arguments. At the onset of the hearing, the applicant’s migration agent indicated that they would like the hearing to be adjourned so that they could respond to certificates issued under s 376 of the Act. The hearing was adjourned.
On 19 March 2021 the Tribunal wrote to the applicant’s migration agent to formally advise of certificates issued under s 376 of the Act and, pursuant to s 359A, to invite the applicant to comment or respond to adverse information on the Department file. The letter advised that the Department file contained two certificates issued under s 376 of the Act which restricted the disclosure of certain material. The letter advised that the Tribunal considered that the certificates were validly issued and had decided to exercise its discretion not to release the information. The letter asked the applicant to make any submissions relating to the certificates and comment or respond to the adverse information by 26 March 2021.
On 26 March 2021 the applicant’s migration agent wrote to the Tribunal requesting an extension of time to respond to the Tribunal’s letter. The Tribunal granted the request until 1 April 2021.
On 31 March 2021 the applicant’s migration agent provided a response including the following:
·Response to the invitation to comment dated 31 March 2021
·Signed statement of the applicant dated 31 March 2021 responding to the adverse information
·Signed statement of the applicant dated 14 August 2020 responding to the same adverse information that was previously put to the applicant by the Tribunal, differently constituted.
The Tribunal discusses the issue of the certificates, the information to which they refer and the responses from the applicant in its consideration of “the nature of the persons’ commitment to each other” below.
On 1 April 2021 the Tribunal wrote to the applicant’s migration agent to invite the applicant to a resumed hearing on 8 April 2021.
On 8 April 2021, the hearing resumed. The Tribunal heard oral evidence from the applicant, the sponsor, Mr Adriano Aiello and Ms Jane Leuanxay.
On 15 April 2021 the Tribunal received further written submissions from the applicant’s representative (dated 14 April 2021).
The Tribunal has read and had regard to each of the before mentioned documents.
For the reasons which follow, the Tribunal has concluded that the decision under review should be affirmed.
Consideration of claims and evidence
The issue in the present case is whether the applicant and the sponsor are in a genuine spousal relationship.
The applicant in this case is a 46-year-old citizen of Malaysia. He first arrived in Australia on 25 November 2007. The applicant remained in Australia unlawfully from 26 February 2008 to 19 August 2011. The applicant was removed from Australia on 19 August 2011. The applicant changed his name and returned to Australia under his new name on 26 December 2011. The applicant was granted a student visa in April 2012 which was cancelled in May 2014. On 14 April 2014 the applicant applied for a Protection visa. This was refused by a delegate and later affirmed by the Tribunal. The applicant applied for a Partner visa on 15 July 2016. On 9 December 2019 the applicant’s Bridging Visa E was cancelled and the Tribunal also affirmed this decision. On 19 December 2019 the applicant was detained. He has remained in immigration detention since that time.
The sponsor was born in Thailand in May 1959. She is a 61-year-old Australian citizen. She was previously married and divorced her ex-husband in August 2014.
The applicant and the sponsor claimed to have met on 10 October 2014 at a residence in Brunswick West at the party of a mutual friend. The parties claim they exchanged telephone numbers before leaving the party and began a relationship as friends which then developed further. The parties claim they officially became a de facto couple on 7 November 2015. The parties married on 23 June 2016.
The Tribunal has had regard to relevant evidence on the Department file, including:
·Statement signed by the applicant and the sponsor requesting a waiver to schedule 3 criteria.
·Photographs of the applicant and sponsor together and at social events with others.
·Certificate of Marriage dated 23 June 2016.
·Email from Bupa dated 30 July 2019 relating to health insurance cover for the applicant and the sponsor.
·Continuing Lease Agreement at Mildura residence, dated 1 March 2019, listing the sponsor and the applicant as tenants.
·Residential tenancy agreement at Mildura residence, listing the applicant and sponsor as tenants, dated 27 February 2017 to 26 February 2018.
·Bond lodgement form for the above tenancy.
·Condition Report relating to Mildura residence dated 5 March 2017.
·Psychological assessment, spousal Application/Compassionate and Compelling Circumstances on behalf of the sponsor and the applicant, dated 14 January 2017.
·Home and Contents Insurance policy for the applicant and the sponsor relating to the sponsor’s Brunswick residence for the period 12 April 2019 to 12 April 2020.
·Certificate of vaccination from Mildura Veterinary Hospital listing the applicant and sponsor as owners dated 3 July 2019.
·Reference letter from property manager of the Mildura residence, stating they have known the applicant and sponsor for three years.
·Reference letter from landlord of Mildura residence, stating that the applicant and sponsor have been tenants at the property for 3 years.
·Reminder notice for electricity account dated 21 June 2019 addressed to the sponsor at the Mildura residence.
·Invoice and accompanying receipt from Mildura Veterinary hospital dated 3 July 2019.
·Submissions of the applicant’s then-migration agents dated 29 May 2017,
3 August 2019 and 7 August 2020.
·Unsigned statement of the applicant responding to departmental adverse information.
·AEC enrolment to vote letter to the applicant at the Brunswick address dated 11 November 2016.
·Westpac joint bank account letter dated 6 July 2016 and statement from 6 July 2016 to 6 December 2016.
·ASIC Current and Historical Company Extract for NATIONAL A CONTRACTING Pty LTD.
·VicRoads Certificate of Registration expiring 9 November 2017, addressed to the applicant at the sponsor’s Brunswick address.
·VicRoads Driver Licence Receipt dated 5 July 2016 addressed to the applicant at the sponsor’s Brunswick address.
·Certificate of title extracted on 28 March 2008 listing the sponsor as sole proprietor of her Brunswick residence.
·Applicant’s Westpac bank statement from 6 July 2016 to 6 December 2016.
·Boarding pass in the parties’ names for flights from Melbourne to Mildura, departing 16 July 2016.
·2 Form 888 supporting statutory declarations by the sponsor’s friends, each dated 6 July 2016 attesting the genuine relationship of the parties.
·Personal statement by the visa applicant, certified by the sponsor dated 17 July 2016 relating to the development of the relationship.
·Family Court Divorce order dated 22 July 2014 relating to the sponsor’s previous marriage.
·Page from a Contract of sale for a plot of land in Box Hill identifying the sponsor as the purchaser.
·Letter from the sponsor dated 20 February 2020 regarding providing financial support to the applicant.
·Records of video chat, instant messaging and photos sent between the sponsor and the applicant
·Letter from Dr David Morrell dated 5 February 2020 relating to the sponsor’s mental health.
·Letter from Dr Neeraj Aggarwal dated 12 February 2020 relating to the sponsor’s mental health and treatment.
·Notice of Final Demand from Fines Victoria issued 28 January 2020 sent to the applicant at the sponsor’s Brunswick address.
·Toll Invoice dated 29 January 2020 addressed to the applicant at the sponsor’s Brunswick address.
·Official Certificate of Marriage for the applicant and the sponsor dated 23 June 2016.
The Tribunal has had regard to the following information provided to the Tribunal by the applicant’s representative:
·Submissions for the applicant’s representative dated 9 March 2021.
·Letter from Dr David Morrell dated 5 February 2020 relating to the sponsor’s mental health.
·Letter from Dr David Morrell dated 6 April 2020 relating to the sponsor’s mental health.
·Letter from Dr Neeraj Aggarwal dated 12 February 2020 relating to the sponsor’s mental health and treatment.
·Psychological Review Assessment on behalf of the sponsor dated 12 May 2020.
·Addendum to Psychological Review on behalf of the sponsor dated 22 May 2020.
·Psychological review on behalf of the sponsor dated 9 March 2021.
·Allianz Life Plan Policy of the sponsor in favour of the applicant and the sponsor.
·Continuing lease Agreement at Mildura address including the applicant’s and sponsor’s name made on 1 March 2019 unsigned by the tenants.
·Screenshots of video chat records, photos and instant messages between the applicant and the sponsor, dated between 1 May 2019 to March 2021.
·Photographs of the applicant and sponsor together, with others, on video chat and of the sponsor visiting the applicant in detention.
·Joint Westpac bank account statement in the applicants’ names for the period 6 October 2020 to 6 January 2021.
·Vast Capital Home Loan Formal Approval letter for the sponsor’s Brunswick property dated 1 March 2021.
·Joint Statement dated 9 March 2021 signed by the applicant and the sponsor, relating to their relationship.
·Letter from Mildura Veterinary Hospital undated addressed to the sponsor and the applicant.
·Cash receipt from the parties joint account for $10,800 dated 5 October 2017 for 24 weeks rent.
·Cash receipt from the parties joint account for $11,208 in the following increments: 4 February 2018 - 9 April 2018: $2400 plus $1608 4 June 2018: $2400 plus $1200, 30 July 2018: $2400 plus $1200, for 24 weeks rent.
·Joint bank account statement for period 5 January 2018 to 6 April 2018.
·Email from the applicant’s migration agent dated 7 January 2020 relating to arranging personal visits of the sponsor to the applicant in detention.
·Sponsor’s notice of assessment for year ending 30 June 2004.
·Joint bank account statement for periods 5 April 2019 to 6 January 2020.
·Personal statement of the applicant dated 14 August 2020 responding to adverse information.
·Commonwealth bank statement for the applicant for the period 5 July 2019 to 4 October 2019.
·Screenshot of the sponsor’s Commonwealth Bank account for the period 1 December 2020 to 9 March 2021.
·Statutory declaration of the Mildura property owner dated 11 March 2021 attesting to the relationship.
·Undated signed statement of a friend of the sponsor in support of the relationship.
·Response to the invitation to comment dated 31 March 2021.
·Signed statement of the applicant dated 31 March 2021 responding to the adverse information.
·Signed statement of the applicant dated 14 August 2020 responding to the same adverse information that was put to the applicant by the Tribunal, differently constituted.
·Statutory declaration of Tim Milner dated 30 March 2021 in support of the relationship.
·Statutory declaration of Boulonmarong Douarpy dated 12 March 2021 in support of the parties’ relationship.
·Detention clinical records dated 19 December 2019, 19 March 2020, 6 May 2020, 10 June 2020, 27 June 2020, 3 July 2020, 29 October 2020, 25 November 2020, 27 November 2020, 27 February 2021, 3 March 2021
·Pages from a contract of sale in the parties’ names in relation to lot 1607A of 845-851 Whitehorse Road, Box Hill, Victoria dated 10 November 2020
Whether the parties are in a spouse or de facto relationship
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 an Australian citizen.
“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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a Certificate of Marriage dated 23 June 2016. 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).
Other r.1.15A(3) evidence
The financial aspects of the relationship
Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.
At the Tribunal hearing, the applicant gave oral evidence about the financial aspects of his claimed relationship with the sponsor. He told the Tribunal that he and the sponsor bought an apartment together in Box Hill, Victoria. In her evidence, the sponsor also attested to this. (The Tribunal has previously referred above to having received pages from a contract of sale in the parties’ names in relation to lot 1607A of 845-851 Whitehorse Road, Box Hill, Victoria dated 10 November 2020).
When questioned about joint liabilities, the applicant said they have life insurance and home contents insurance. The sponsor also attested to having joint insurance policies.
When questioned about the extent of any pooling of financial resources, the applicant said that they put their money together and stopped using their individual accounts following their marriage. The sponsor referred to superannuation and said any money left over following their real estate transactions can be used to establish a business together. She told the Tribunal that she does not presently work and has received money from the applicant’s family.
When questioned about whether one person owes any legal obligation in respect of the other, the applicant said that they will both need to contribute to their new property and insurance.
When questioned about the basis of any sharing of day-to-day household expenses, the applicant said that they put their income together and then share expenditure together. The sponsor said that the applicant uses money from his family to pay expenses and look after her.
Overall, and due to the Tribunal’s assessment of the case as a whole, which is explained further later, the Tribunal does not accept the parties’ oral evidence and has formed the view that the various documents outlined above were generated to create a positive impression of the parties’ relationship rather than as a genuine reflection of the financial aspects of their relationship. Given the Tribunal’s concerns, the Tribunal places limited weight on the evidence of the financial aspects of the relationship.
The nature of the household
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.
When questioned about any joint responsibility for the care and support of children the applicant said that he would like to have his teenage son, from his previous relationship, come and live with him and the sponsor. The sponsor said that she was supportive of this, but that otherwise she lives with her car as her children had moved out.
When questioned about the living arrangements, the applicant said that they moved in together in November 2015. He said that he gets up early, prepares breakfast and assists the sponsor to get ready for work. He said that she cooks, and he cleans up. He said that she likes to plant seeds. The sponsor spoke generally about she and the applicant living together.

When questioned about any sharing of the responsibility for housework, the applicant said that she does the laundry and he hangs it up. He said that he then collects the laundry and they fold it together. The applicant said that they also go to the hairdresser together. The sponsor spoke about pruning trees, taking the rubbish out and otherwise enjoying life with the applicant. The sponsor’s answers in relation to this line of questioning then strayed somewhat. For comprehensiveness however, she said that she likes him a lot, that he is not so handsome but that he has a good heart, that he takes her to the doctor and that he does not eat vegetables.
Given the Tribunal’s concerns, the Tribunal gives no weight to the evidence of the nature of the household.
The social aspects of the relationship
Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
The Tribunal has considered the evidence of whether the applicant and the sponsor have represented themselves to other people as being married to each other. When questioned about this, the applicant said that when they go to parties they go together and their friends recognise them as husband-and-wife. The sponsor said that she addresses him as her husband when she sees others.
When questioned about the opinion of the person’s friends and acquaintances about the nature of the relationship, the applicant said that they are recognised as a happily married couple who have a marriage which will be long-lasting. When questioned about this, the sponsor spoke of her affection for the applicant and referred the duration of their marriage. She said that whilst some people are worried that the applicant may be after her money she considers that they can look after each other, especially if she becomes ill.
When questioned about any basis on which the persons plan and undertake joint social activities, the applicant said that they always participate in social activities together. The sponsor said that if she has any money left over from her real estate transactions, she might buy a farm or an Asian grocery store. She said that they plan to live independently and that they go to the temple together, donate together and go to religious gatherings together. The sponsor said that the applicant is the one to drive her if they go long distances.
The applicant called two witnesses to give evidence before the Tribunal, Adriano Aiello and Jane Leuanxay.
Mr Aiello told the Tribunal that he had known the parties 3 to 4 years and came to know them through the sponsor’s son. Overall, his knowledge of the relationship seemed limited however. For instance, he could really only say that he had seen them in the street, including at McDonald’s.
Ms Leuanxay spoke in similar terms, saying that the parties live not far from her home and that they eat with her at times. She said that she understood them to have met a long time ago, to care for each other, to work together and have a “good relationship”. The Tribunal was surprised how unconvincing Ms Leuanxay was, particularly given the applicant said that he and the sponsor were introduced to each other by Ms Leuanxay.
The Tribunal did not find Mr Aiello and Ms Leuanxay to be impressive witnesses.
Given the Tribunal’s concerns, the Tribunal gives little weight to the evidence of the social aspects of the relationship.
The nature of the persons’ commitment to each other
The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the person’s commitment to each other.
When questioned about the duration of the relationship, the applicant referred to sponsor’s mental health and said that he is a good listener. He said that he assists her with her medical appointments and that he makes sure that she takes her medication on a regular basis. The sponsor spoke about the development of their relationship over six or seven years and described how she spent some time observing him first and didn’t jump into marriage.
When questioned about the length of time during which the persons have lived together, the applicant said that it had been six years. The sponsor said over five years.
When questioned about the degree of companionship and emotional support that the persons draw from each other, the applicant and sponsor both gave evidence that the applicant supports the sponsor with respect to her mental health. The applicant spoke about communication, organising medical appointments and making sure that the sponsor takes her medication. He said that the sponsor makes sure that they have a dim light as he is scared of darkness. The sponsor said that the applicant helps her carry groceries and cook, she said that he is a good person who is quite helpful.
When questioned about whether the persons see relationship is a long-term one, the applicant said that their relationship is based on trust and belief in that they support and care about each other. He said that they want to have a good life together and said that the sponsor encourages him to eat more vegetables because he doesn’t like vegetables. He made brief reference to mutual support and mutual trust. The sponsor said that they are aiming for the long-term and once-in-a-lifetime together.
The Tribunal referred above two certificates issued under s 376 of the Act. The Tribunal considers the certificates valid.
The Certificate dated 16 December 2019 was issued on the basis that folios 63-64, 74 and 117-122 of the Department file included reports/emails between departmental areas/officers which refer to departmental processes and reviews, the release of which would jeopardise the departmental internal processes and reveal investigation methodology.
The Certificate dated 17 November 2020 was issued on the basis that disclosure of folios 63-64 and 74 of the Department file would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
The Tribunal provided, in writing, the gist of the information, as it is required to do, and has considered the applicant’s responses and denials. Whilst not all of the information to which the certificates refer has the same relevance, there are some aspects which are particularly pertinent.
Significantly, there is evidence that when departmental officers executed a warrant at a property in Red Cliffs, Victoria:
·     the applicant stated that he was in a relationship with his then housemate, Ms Lu, while her husband is away
·     Ms Lu said the applicant was her boyfriend, whom she has been dating before and after getting married to her husband
·     Ms Lu stated that she was not in a legitimate marriage and that she only wishes to be with her boyfriend and work
Additionally, in an interview conducted with the applicant by officers of the Department on 12 October 2020 for the purposes of a bridging visa E application, the applicant described Ms Lu as an ex-girlfriend and said that he was in a sexual relationship with her during December 2016 to early 2017 and that he may be the father of a child born to Ms Lu in December 2017.
In her evidence, the sponsor sought to explain away the issue of Ms Lu, describing her as a friend.
Whilst the Tribunal acknowledges the applicant’s protestations about an interpreter not being present, in all the circumstances the Tribunal prefers the records of the Department, rather than the applicant’s denials.
The Tribunal observes that sexual infidelity by one of the parties to a relationship does not necessarily take the relationship outside the definition of spouse or de facto.[1] In this case however, in all the circumstances, the Tribunal is not convinced that the applicant isn’t in fact in a relationship with Ms Lu.
[1] Cao v MIAC [2007] FMCA 225 at [36] and [42]
Overall, the Tribunal found the evidence of the applicant, the sponsor, and their witnesses unconvincing. The Tribunal gives little weight to the evidence of the nature of the persons’ commitment to each other.
On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) were met at the time the visa application was made and at the time of this decision.
CONCLUSION
The Tribunal makes the following findings.
As stated above, the Tribunal is satisfied that the parties are validly married, as required by s.5F(2)(a) of the Act.
From the evidence before the Tribunal, the Tribunal is not satisfied that, at the time of application or at the time of this decision, the applicant and the sponsor:
·     have a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s.5F(2)(b) of the Act;
·     have a genuine and continuing relationship, as required by s.5F(2)(c) of the Act; and
·     live together, or do not live separately and apart on a permanent basis, as required by s.5F(2)(d) of the Act.
Given these findings the Tribunal is not satisfied that the requirements of s.5F(2) are met. Therefore, the applicant does not meet cl.820.211 and cl.820.221.
Further, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets cl.820.221(1)(b) on the basis of meeting the alternative criteria in cl.820.221(2) or (3).
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
decision
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
P. Wood
Senior Member

[2021] AATA 5608

24 August 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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