Liu (Migration)

[2022] AATA 92

Liu (Migration) [2022] AATA 92 (7 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Xiyou Liu

VISA APPLICANTS:  Ms Yuqing Sun
Ms Wanting Ding

CASE NUMBER:  1824875

DIBP REFERENCE(S):  BCC2016/3053283

MEMBER:David Barker

DATE:7 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 07 January 2022 at 8:28am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing spousal relationship – member of the family unit – sponsor’s family composition – inception and development of the relationship – money transfers – potentially contrived relationship – investment property – untranslated records of communication – limited evidence of a mutual commitment – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221, 309.311; r 1.15

CASES

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 Immigration on 28 June 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the applicant) applied for the visa on 14 September 2016 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 and cl 309.221 because they were not satisfied on the evidence that the parties were in a genuine and continuing spousal relationship.

4. The review applicant, hereafter referred to as the sponsor, appeared before the Tribunal on 8 December 2021 by video platform, to give evidence and present arguments. The Tribunal is satisfied it was reasonable to hold a hearing through video in the context of the coronavirus pandemic, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal was mindful of the need to minimise health risks to the parties and Tribunal staff that could arise at the present time in an in-person hearing. The Tribunal received an indication from the applicant that he was comfortable with the hearing proceeding utilising this technology platform. The Tribunal also received oral evidence from the applicant and the sponsor’s son, Mr Zhong Hai Liu. The Tribunal was assisted by an interpreter in the Mandarin and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent, Mr We Liu.

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

   BACKGROUND

7. The applicant is a national of China and is 52 years of age. She was previously married from September 1998 to August 2006. Her previous marriage ended in divorce. There is a daughter of that marriage born in April 2000, who is included in this application.

8. The sponsor was born in China and is 57 years old. He was previously married, with that marriage ending in divorce in February 2004. He declared one child on forms associated with the applicant’s visa application,[1] Zhong Hai Liu, born May 1988. When interviewed by Australian immigration officials in May 2018, the sponsor conceded that he had a second child, Zhongjian Liu. The sponsor first came to Australia in 2011 on a Subclass 679 sponsored family visitor visa. He was granted a Subclass 173 contributory parent visa in March 2013 and a Subclass 143 contributory parent visa in April 2015, which granted him permanent residency in Australia.

   [1] Form 40SP

9. The parties claim to have started communicating with each other over WeChat in the September to November 2014 period, after the applicant was provided the sponsor’s phone number by one of her friends, whose sister was a classmate of the sponsor. They claim to have met face to face for the first time on 11 April 2015, when the sponsor was in China. They claim to have had further direct contact with each other over four days from 22 April 2015, leading up to a marriage proposal. The sponsor returned to Australia on 28 April 2015. He travelled to China again on 31 January 2016. The parties registered their marriage on 25 February 2016. The sponsor returned to Australia on 12 March 2016. The sponsor has travelled to China four times since the marriage began: in January 2017, December 2017, January 2019 and May 2019.

10. The parties provided documents to the Department in support of the current application including but not limited to:

    ·Evidence as to the parties’ identity and marital status;

    ·Relationship statements of applicant and sponsor, both dated 29 April 2017;

    ·Four Foreign Exchange Transaction Receipts, Customer: Liu Xi You, (printed dates) 23 October 2016, 13 January 2017, 29 December 2015 and 17 May 2016;

    ·Evidence of electronic messaging, not translated;

    ·Photographs;

    ·Shopping receipts.

11. The delegate’s decision record states that the delegate was not satisfied evidence regarding the different aspects of the parties’ relationship demonstrated they were in a genuine spousal relationship.

12. The delegate noted that the Department received an allegation that the sponsor will allegedly receive payment to enter into a contrived relationship with a Chinese national for the purpose of that national obtaining an Australian visa. The delegate noted that the allegation was put to the applicant and the sponsor during interviews with Australian immigration refusals and that both parties responded by declaring that the information contained in the allegation is false. The delegate did not place any weight on the allegation, as they were not satisfied that it could be substantiated.

13. Prior to the hearing the Tribunal received further documentary evidence including:

    ·Travel records;

    ·Foreign Exchange Transaction Receipts, Customer: Liu Xi You, (printed dates) 26 April 2021, 20 December 2020, 21 December 2020, 31 October 2020, 23 August 2020, 4 August 2019, 27 May 2019, 4 April 2019, 12 March 2019 and 24 January 2019;

    ·Notarial-Real Estate Ownership Certificate, with translation, Xiyou Liu, issued 23 January 2013 and Real Estate Ownership Certificate, Xiyou Liu, registered 25 February 2019;

    ·Photographs;

    ·Form 888 Statutory declaration, Zhong Hai Liu, dated 6 November 2021;

    ·Evidence of untranslated electronic messaging.

14. Information from this documentary evidence, as well as the oral evidence provided by the applicant, sponsor and witness at hearing, where relevant, will be discussed below.

    The s 376 certificate

15. The Departmental file contains a certificate regarding the Tribunal’s discretion to disclose certain information under s 376 of the Act. The Certificate, which is dated and signed by a delegate of the Minister for Immigration, states that it would be contrary to the public interest for disclosure of material from specified documents in the Department’s file to be released for two reasons, namely: they refer to an ongoing internal Departmental investigation regarding organised family migration fraud and disclosure of this information could compromise the investigation; and it contains an allegation provided in confidence and is classified as ‘sensitive‘.

16. A copy of the s 376 certificate was provided to the applicant and their representative in advance of the hearing and submission in relation to the validity of the certificate was invited. No submissions with regard to this issue were received prior to or at hearing. The Tribunal considered the s 376 certificate and determined it is valid, as it is satisfied that it is appropriately dated and issued by an officer with authority to do so. The Tribunal is also satisfied that appropriate reasons have been provided as to why release of all the material in the specified documents would be contrary to the public interest. The Tribunal did however form the view that in the interest of procedural fairness, it was appropriate to put the gist of the information contained in the certificated material to the applicants for their comment pursuant to the requirements of s 359A of the Act.

    Particulars of information put to the review applicant (sponsor) pursuant to s 359A of the Act

17. There are discrepancies and inconsistencies in the parties’ evidence about the history and nature of their relationship and also in relation to evidence previously provided by the parties to the Department and Tribunal. It is necessary for the Tribunal to determine the reliability of evidence put forward by the applicant and sponsor in support of their claims in order for the different aspects of their relationship to be given due consideration. Accordingly, the Tribunal put relevant discrepancies and inconsistencies to the sponsor following the hearing in accordance with s 359A of the Act (the s 359A letter).

18. The Tribunal explained why the information was relevant and the consequences that could flow from the Tribunal relying on the information. The sponsor was provided the statutory time to comment or respond and provided the Tribunal with a response within this time frame, on 28 June 2021. For ease of connecting the sponsor’s comments with the particulars of information they respond to, his comments are, where possible, positioned in italicised font following the particulars of information detailed in the s 359A letter.

19. The particulars of the information put to the sponsor are as follows.

    Firstly

20. When interviewed by Australian immigration officials in May 2018 the sponsor gave a clear answer when asked how many children he had. The sponsor said that he had one child and confirmed this when asked if he was sure that he only had one child. When the sponsor was then challenged on this point during the interview he conceded that he had two children from his previous marriage. The s 359A letter explained that this information is relevant as it is not credible that the sponsor would forget one of his children and that omitting to mention such a fundamental fact raises concern as to the reliability of information provided by the sponsor.

    I answered I have only child when asked by Australian immigration officials at first and then corrected to 2 children from previous marriage later. It is not because I wanted to hide this information to Department of home affairs, but I meant only my son Zhong Hai Liu lives with me, and the other child lives with her mother. Another reason that I did not want to discuss this information is at the second child was overborne against one child policy, so I always habitually hide this information when asked by officials to avoid penalty. During interview, I treated Australian immigration officials as Chinese officials, which caused the wrong information.

    Secondly

21. During the hearing the sponsor’s son Zhong Hai Liu confirmed that he prepared a Form 888 witness statutory declaration, dated 6 November 2021, in association with the review application. Zhong Hai Liu confirmed at hearing that all the information in that statement was true and correct, with clarification that where the statement indicated he had met the applicant in 2008, this was an interaction over WeChat and not in person. In discussion at hearing of his first interaction with the applicant over WeChat in 2008 Zhong Hai Liu confirmed on at least two occasions that the sponsor and the applicant knew each other and were dating at the time Zhong Hai Liu left China to come to Australia in 2006.

22. Zhong Hai Liu did not however provide a credible explanation as to why in that declaration and at hearing he said that the sponsor and the applicant had been together since 2006 and that he had first met her, albeit over WeChat, in 2008, whereas when the sponsor was interviewed by Australian immigration officials in May 2018 he stated that he first met the applicant in 2015, and when the applicant was interviewed by Australian immigration officials, also in May 2018, she said that she had never met Zhong Hai Liu or talked to him, in person or by WeChat.

23. When asked at hearing to explain these evidentiary inconsistencies Zhong Hai Liu claimed he didn’t really pay attention to his father’s private issues, as he did not live with his father, but that he did know his father had met the applicant a long time ago. He did not otherwise provide a credible explanation for the extent of inconsistency between information in his written statement and that provided by the sponsor and the applicant about the inception and development of their relationship.

24. The s 359A letter explained that this information is relevant as if the Tribunal decides Zhong Hai Liu has not provided an adequate explanation for the inconsistencies in evidence he has provided in association with the review application, it will not place any weight on evidence provided by Zhong Hai Liu.

    My son Zhong Hai Liu admits he made mistakes on the form 888. The first time he met my wife, [the applicant] was 2018 instead of 2008, on we chat when I was talking with her he could not be 2008, as there was no we chat in 2008.

    Thirdly

25. During the hearing there was discussion about evidentiary concerns discussed by the delegate in their decision record regarding the connection between the sponsor, Deng Tao and Deng Xia and how the sponsor was introduced to the applicant. At hearing the sponsor claimed that Deng Tao is the younger brother of Deng Xia and that Deng Xia was his classmate. The sponsor gave evidence that Deng Tao was his friend and that Deng Tao introduced Deng Xia to both the sponsor and the applicant.

26. When asked at hearing to explain the inconsistency, in his claim Deng Tao was the brother of Deng Xia and thereby male, with responses provided by the applicant when interviewed by Australian immigration officials in May 2018, the sponsor claimed that any such description of Deng Tao as Deng Xia’s sister was an interpretation error which occurred in each separate interview.

27. A review of the records of interview from the applicant’s interview with a Mandarin speaking Australian immigration official on 9 May 2018 records the following responses:

    [Note PA refers to the applicant and SP refers to the sponsor]

    How did you know SP?
    PA: SP is my friend DENG Tao’s elder sister DENG Xia’s classmate.

    How did you know DENG Tao?
    PA: We used to work together in the community hospital. I was the guide in that hospital and she worked in the logistics Dept.

    Does DENG Tao live in Dalian?
    PA: Uh… she is originally from Shenyang.

    How did DENG Tao introduce you two?
    PA: DENG Tao brought LIU XiYou’s WeChat to me, which was in Sep, Oct or Nov of 2014.

28. A review of the records of interview from the sponsor’s interview with a Mandarin speaking Australian immigration official on 9 May 2018 records the following responses:

    Who introduced you two?
    SP: DENG Xia introduced us.

    Who is DENG Xia?
    SP: Applicant’s friend’s younger sister.

    How did you know DENG Xia?
    SP: Uh… we were classmates.
    What kind of school?

    SP: Primary school, middle school.

    Primary or Middle school?
    SP: Both.

29. The s 359A letter explained that the responses above indicate the sponsor did not ascribe a gender to Deng Tao in his interview with Australian immigration officials, but that on two distinct occasions the applicant used the word ‘she’ in relation to Deng Tao. The responses provided by the applicant appear coherent and congruent with the question put to her and do not present as possible interpretation errors.

30. The s 359A letter explained that this information is relevant as if the Tribunal does not accept the reference to Deng Tao as a woman in the applicant’s 2018 interview is a result of a likely interpretation error, it raises the concern that both the sponsor and applicant gave misleading evidence at hearing about this factor in an endeavour to resolve evidentiary problems in information previously provided to the Department.

31. The s 359A letter also explained that the responses above indicate that when interviewed in May 2018 the sponsor claimed Deng Xia introduced the sponsor to the applicant, whereas in her interview the applicant claimed Deng Tao arranged the introduction. The s 359A letter explained that this information is relevant as if the Tribunal is not satisfied an adequate explanation has been provided to explain this inconsistency on an important factor such as how the parties were introduced to each other, it raises concern as to whether information provided by the sponsor and applicant about their relationship is reliable.

32. The s 359A letter also explained that the record of hearing from the sponsor’s interview also shows that he only conceded that he had a familial connection to Deng Xia, and presumably Deng Tao, when questioned repeatedly about his connection to Deng Xia. This adds to concern that the sponsor was not forthcoming about the circumstances of the claimed inception and development of his relationship with the applicant.

33. The s 359A letter explained that the cumulative inconsistencies in evidence regarding how the parties were introduced to each other raise concern as to whether information provided by the sponsor and applicant about this factor is reliable.

    The relationship between Deng Xia, Deng Tao and us is a little complicated. Deng Xia is a stepdaughter of my sister, and she was also my classmate. Deng Tao is my sister’s son, so he is my nephew, and he is Deng Xia’s brother (same father, different mother). Deng Tao and [the applicant] were workmates. Both Deng Xia and Deng Tao know our situation very well, so they introduced [the applicant] to me by forwarding we chat ID to each other in 2014, and then we developed relationship. This confusing information might have caused by interpretation error.

    Fourthly

34. At hearing the sponsor gave oral evidence that funds remitted by him to the applicant were for the purpose of contributing to her daughter’s, the second named applicant’s, tuition fees and her and the applicant’s regular living expenses. Whereas when interviewed in May 2018 the sponsor claimed that he had ‘remitted money to her many times’, and when asked for what purpose, he claimed it was ‘To cover the joint travel cost’. When asked what he meant, the sponsor claimed ‘To cover the cost we spent when we lived together in China’.

35. The s 359A letter explained that this information is relevant as there is a fundamental difference between contributing towards regular living expenses and the second named applicant’s tuition fees and a contribution made towards holiday expenses incurred by the parties. The s 359A letter explained that the inconsistency in his evidence regarding the purpose of funds remitted to the applicant raises concern as to the reliability of information provided by the sponsor regarding the financial aspects of the parties’ relationship.

    I transferred funds to the applicant on several occasions before 2018 it is hard to describe the purpose of the fund transfer my wife manages our money in my family. So I just sent money to her when I have surpluses when asked about the purpose during the interview, I just gave them some random answer, because I transferred fund to my wife without any specific purposes let her manage the funds

    Fifthly

36. At hearing the sponsor gave oral evidence that he contributed between AU$20,000 to AU$30,000 towards the cost of an investment property the applicant purchased in or around September 2017, whereas when interviewed in May 2018 the applicant said the sponsor had contributed 50,000 RMB towards the cost of this investment property. The Tribunal has reviewed historical currency conversion rates from 2017, which indicate that at that time AU$20,000 to AU$30,000 amounted to between 104,000 RMB and 156,000 RMB. There is therefore a significant discrepancy between the amount the applicant claims that the sponsor contributed towards the cost of the investment property and the amount the sponsor claimed that he had contributed.

1. The s 359A letter explained that this information is relevant as the inconsistency in the sponsor’s evidence regarding the extent to which he contributed towards the cost of the investment property purchased in September 2017 raises concern as to the reliability of information provided about the financial aspects of the parties’ relationship.

   As I gave all my surpluses to my wife without any records, I really could not recall the amount clearly, when I was asked for the amount during hearing, I just gave a rough number. If the number is very important, I must ask my wife.

   Sixthly

2. At hearing the sponsor gave oral evidence that the investment property purchased in or around September 2017 was put in both his and the applicant’s name, whereas when interviewed in May 2018 he clearly stated in response to a question as to whether he had any portion in that house: ‘No. It is under her name only’.

3. Whilst the sponsor provided evidence that the claim shows his name has been placed on a property previously owned solely by the applicant, he stated at hearing that this was not the investment property, but was the property in which the applicant resided. At hearing the applicant also said the property for which a Notary document has been provided, which the sponsor’s name is now attached to, is her residential property, not the investment property.

4. The s 359A letter explained that this information is relevant as the inconsistency in the parties’ evidence regarding the sponsor’s part ownership of properties owned by the applicant raises concern as to the reliability of information provided about the financial aspects of the parties’ relationship.

5. The s 359A letter explained that the cumulative inconsistency in information which has been provided about the financial aspects of the parties’ relationship calls into question the reliability of this information and whether the sponsor and the applicant have endeavoured to provide a misleading perspective about this aspect of their relationship.

   For the apartment purchased in 2017, my name is not on the title, as I was not in China at that moment, and it has been sold. Now, we have two properties under our joint name - one apartment in Sujiatun Shenyang City, and the other one is an apartment in Dalian City, where my wife lives.

   Seventhly

6. At hearing the parties gave evidence about inconsistencies in information provided by them about the day of their marriage registration, where when interviewed in May 2018 the sponsor said they dined alone at a restaurant in the evening after the marriage registration, whereas in her interview the applicant said they both attended dinner at the home of the sponsor’s elder sister.

7. At hearing the sponsor claimed that he could not recall the events of his marriage registration day due to his bad memory. The applicant claimed at hearing that the inconsistency could be explained by the fact that a Hukou registration book had been left at home on the day of the marriage registration, necessitating a delay in the proceedings. She said that the parties had lunch in a restaurant, without other guests, but that in the evening, after the marriage registration, they both had dinner at the home of the sponsor’s sister. The applicant also claimed at hearing that the sponsor can at times be forgetful.

8. The s 359A letter explained that a review of the record of the sponsor’s interview with Australian immigration officials in May 2018 showed that with respect to a question about the parties’ marriage registration he provided the following responses:

   On the marriage registration day, did you celebrate?
   SP: No.

   What did you do on that day?
   SP: After registration we returned to my place in Shenyang. Only two people of us went to get the marriage registered, which happened in the afternoon. We then ate dinner together in the restaurant, only we two people.

9. In response to a further question during the interview as to why the applicant said that ‘you ate at your relative’s home after the marriage registration’ the sponsor stated that he had a bad memory.

10. The s 359A letter explained that this information is relevant as if the Tribunal forms the view that the record of interview indicates that the sponsor provided clear and coherent answers to questions about his marriage registration day it may find that a claimed poor memory does not adequately explain the inconsistency in information given by the parties about this factor during the May 2018 interviews.

11. The s 359A letter explained that further to this the Tribunal, in light of the sponsor’s evidence at hearing that he suffers from no illness or condition affecting his memory, may form the view that he has put forward a misleading claim about memory difficulties in an endeavour to resolve inconsistencies in evidence, where he perceives they are not favourable to the claims made by the parties about the nature of their relationship.

12. The s 359A letter explained that if the Tribunal is satisfied that the sponsor had provided clear and coherent responses to questions about his marriage registration day in the May 2018 interview, it raises concerns that the applicant gave misleading oral evidence with regard to this factor during the hearing in an endeavour to resolve perceived evidentiary inconsistency. This raises concern as to the reliability of information provided by the applicant in support of her claims about the nature of the parties’ relationship.

13. The s 359A letter explained that the cumulative inconsistency in information which has been provided about the circumstances of the parties’ relationship calls into question the reliability of this information and whether the sponsor and applicant have endeavoured to provide a misleading perspective about both the development of their relationship and the extent to which they have represented themselves to relatives as a married couple.

    On our marriage date, we went to the registration in the morning, but found I did not take my Hukou. So it was around lunchtime when we took Hukou and got registered. We just had a simple lunch ourselves in a restaurant nearby. In the evening, we went to my sisters home for celebration with brother and sister’s family.

    Eighthly

14. Information in the documents that are restricted by the s 376 certificate detail concerns that the sponsor and his ex-wife Linyan Du have involvement with organised family migration fraud. This concern is discussed in general terms in the delegate’s decision record. The gist of this information is that the sponsor will be paid a considerable amount of money for entering a contrived relationship with the applicant, with the intention this will provide her a pathway to permanent residency in Australia. It is also alleged that the sponsor was, at the time of the applicant’s visa application, residing in the same household as his son, his son’s family and also his ex-wife. There is also information which suggest the sponsor’s ex-wife has involvement with a number of visa applications where migration fraud is suspected.

15. The s 359A letter explained that this information is relevant due to other evidence discussed at hearing, such as the sponsor and his ex-wife: maintaining the same postal address; continuing to jointly own land in China; and continuing to share the same Hukou registration in China. The s 359A letter explained that this raises concern that the sponsor has maintained a connection to his ex-wife which is stronger than that between most divorced couples and that this in turn raises concern that the allegation the sponsor is involved with migration fraud and entered into a contrived relationship with the applicant is plausible.

16. The s 359A letter explained that if the Tribunal was to place weight on the allegation that the parties are not in a genuine relationship, but rather are in a contrived relationship, it will affirm the decision under review.

17. The s 359A letter then explained that if the Tribunal places weight on some, or all of the concerns raised in the letter and determines that the sponsor was not at the time of application, or is now at the time of decision, in a genuine and continuing relationship with the applicant, it will affirm the decision under review.

    As to the certificate 376. I would like to comment as below:

    a)    My marriage relationship with the applicant is genuine. We do not have the intention to make money by providing PR pathway to others, as I know it is illegal and I have stable income from my job. I regularly transfer find my wife instead of she gives me money. My wife has retirement pension and stable life, she does not need to come to Australia if I am not here.

    b)    My exit wife – Linyan Du and I use the same postal address in my sons Ricky Hillhouse, but she did not live there. The reason why she put this address is because she does not read English, so it relies on her son Zhong Hai to translate the letters posted to the address.

    c)     My exit wife – Linyan Du and I are still on my household registration. It looks unusual, but it is common in rural areas in China because the rural land title is owned by the village community we are both in the same village and we both have a share of the land household registration in rural area is kind of share of land title it is too complicated to remove a person from the registration household registration does not mean our marriage still continues, we have divorced over 10 year.

    I understand we have provided some unclear or even misleading information to Australian immigration officials and AAT, but my marriage relationship with the applicant is genuine and continuous. Please consider the long processing time in our commitments to our marriage, and grant the Visa to my wife, so we can live together in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant and sponsor were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision.

    Are the parties in a spousal or de facto relationship?

19. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is a permanent resident of Australia.

20. ‘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 visa applicant’s and review applicant’s 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.

21. In Re MILGEA and Dhillon [1990] FCA 144, the Federal Court stated:

    people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as ‘community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.

    Are the parties validly married?

22. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The couple registered their marriage in China on 25 February 2016. A certificate regarding the marriage registration is available on the Department file, as is evidence of the parties’ divorces from previous spouses. 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).

    Financial aspects of the relationship

23. The Tribunal has considered the 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; and any sharing of day-to-day household expenses.

24. In response to a question at hearing as to whether the parties have any shared assets, the sponsor gave oral evidence that the financial aspect of the parties’ relationship extended only to funds he has sent the applicant for her and the second named applicant’s living expenses and to go towards the second named applicant’s tuition fees. This claim is inconsistent with claims he made elsewhere in the hearing where he claimed to have contributed significant amounts to investment properties purchased in China and also information provided by the sponsor when interviewed by Australian immigration officials in May 2018. At that time he said funds remitted to the applicant were used to meet the parties’ travel expenses during time they had spent together in China. In response to the invitation to comment on this particular of information the sponsor claims the applicant manages his money and he sends her any surplus amounts he has.

25. The sponsor, in his s 359A response conceded that when asked about this factor when interviewed by Australian immigration officials he ‘just gave them some random answer’ because he transfers funds to the applicant ‘without any specific purpose’. Given the sponsor’s acknowledgement that he provided inaccurate information to Australian immigration officials and the inconsistency in evidence he has provided with regard to the purpose of funds remitted by him to the applicant, the Tribunal does not consider the claims made as to the purpose of funds remitted to the applicant to be reliable and has placed no weight upon them.

26. In light of the sponsor’s response when asked about whether he and the applicant had any shared assets, the Tribunal sought clarification at hearing regarding a residential property which the applicant is said to have purchased in September 2017 at a cost of around 310,000 RMB. The sponsor gave evidence that he could not recall the specific address of the investment property, but that he thought it was located in the Xigang District, Dalian City. He said that the applicant intends to sell this property but retains ownership of it at the present time. In contrast to his earlier claim that funds remitted by him were for living expenses and tuition fees incurred by the applicants, the sponsor then gave evidence at hearing that he had contributed the equivalent of between 104,000 RMB and 156,000 RMB[2] towards the cost of this investment property. In response to the inconsistency between this claimed contribution and the significantly lower amount of 50,000 RMB the applicant claimed that he had contributed during her interview with Australian immigration officials in May 2018, the sponsor has conceded that he just gave the Tribunal a ‘rough number’ as he ‘really could not recall the amount clearly’. In contrast to the sustained claims made by the sponsor to the Tribunal that he contributed towards paying off this investment property, as discussed in the delegate’s decision record, when interviewed in May 2018 he contradicted the applicant’s claim as to his contribution towards paying off the mortgage by giving evidence that the applicant paid the mortgage by herself, that is, without any financial contribution from him.

    [2] This equates to between AU$20,000 to AU$30,000 at the average currency conversion rate for 2017.

27. The Tribunal considers the claims with regard to the financial contribution made by the sponsor to an investment property purchased by the applicant in September 2017 are unreliable. In his s 359A response the sponsor has retracted a claim he made at hearing that the title of the investment property purchased in September 2017 was in both his and the applicant’s names. In contrast to his claim at hearing that the applicant had an intention to sell this property in the s 359A response the sponsor contends the property has now been sold. The Tribunal considers these to be further examples of where the sponsor’s claims as to the financial aspects of the parties’ relationship are unreliable and his general unfamiliarity with the specific details of the applicant’s financial circumstances is apparent.

28. The parties claim to jointly own a further investment property in Sujiatun, Shenyang City, purchased in 2019. There is however no translated documentary evidence to support this claim and due to the general unreliability of the sponsor’s claims about the financial aspects of the parties’ relationship, without reliable third party evidence, the Tribunal is not persuaded to give weight to this claim.

29. The parties have provided a copy of a notarial certificate with translation[3] which records the sponsor’s co-ownership for a property located at No. 27-5-6, Kaoshan Lane, Xigang District. This is consistent with the parties’ claim that the applicant placed the sponsor’s name on the title of her residential property. The Tribunal has however not placed weight on this evidence or claim for two reasons. Firstly the sponsor provided an inaccurate address for the property, namely Room 602, Bldg. 17, Kaoshan Avenue, Bayi Road, Xigang District. Secondly, in contrast to the parties’ claim that the sponsor’s name was placed on the property title after their marriage in February 2016, the translation of the notarial certificate, which notes that the ‘Change according to marital relationship’ (to co-ownership) states that the notarial certificate was issued in January 2013, over three years prior to the marriage and two years prior to the parties’ claim as to when they were introduced to each other.

    [3] The document provided to the Tribunal is reported to be a duplicate copy of the original copy of certificate issued on 25 February 2019.

30. The Tribunal is not satisfied that the evidence establishes that the parties have shared assets. The parties claim to have no shared liabilities. The parties have no legal obligations in relation to each other, with the exception of those inherent in a marriage. The sponsor gave evidence at hearing that the parties do not operate any bank accounts in joint names and somewhat in contrast to other claims made by him at hearing, the sponsor also gave evidence at hearing that he and the applicant are essentially self-sufficient with respect to how they meet their regular basic living expenses.

31. The Tribunal acknowledges the sponsor has remitted funds to the applicant, amounting to around AU$97,571 over a period from December 2015 to April 2021. There is however, in contrast to the sponsor’s claim that he remitted funds on a consistent yearly basis to the applicant, no evidence of funds remitted over a two year period from 14 January 2017 to 23 January 2019. There is no third party documentary evidence to demonstrate to what use these remitted funds were put. Whilst the Tribunal accepts it may be culturally acceptable for a wife to be given responsibility for managing family finances the result of there being no credible documentary evidence to support this claim, in the particular circumstances of this case means the Tribunal is not satisfied the financial remittances demonstrate the parties have a shared financial asset, or that they have pooled their funds to meet shared financial commitments.

    Overall assessment of the financial aspects of the parties’ relationship

1. The Tribunal recognises that the parties have resided in different countries and that this can influence the extent to which they have combined their finances. However, given the claimed duration of the relationship in this case, the lack of shared assets, liabilities or other indicators the parties have to any extent merged their financial affairs, after what is approaching five years of marriage, is of concern to the Tribunal. In forming this view, the Tribunal notes that it does not view the funds remitted by the sponsor to the applicant to be a reliable indication that the parties have merged their finances. The Tribunal is also not satisfied the evidence supporting the parties’ claims with respect to jointly owned property in China is reliable. When considered in their totality, the Tribunal considers the financial aspects of the parties’ relationship do not offer support to the contention that they have a mutual commitment to a shared life together as spouses.

   The nature of the household

2. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; the parties’ living arrangements; and any sharing of housework.

3. Both of the parties have adult children from previous relationships. The sponsor’s son is an independent adult with his own family and the sponsor’s other child is reported to live with their natural mother. The parties claim the applicant’s daughter, who is 21 years of age, is a full time student. The Tribunal notes that there is however no third party documentary evidence which supports this claim. There is no claim that the sponsor shares any responsibility for the care of the second named applicant. At hearing the sponsor claimed that funds remitted by him to the applicant were for the living expenses of both the applicant and her daughter, the second named applicant, and also to go towards the second named applicant’s tuition fees. Due to the inconsistency in evidence provided by the sponsor with regard to these remittances and the lack of credible third party evidence, such as tuition fee receipts, the Tribunal has placed no weight on this claim.[4]

   [4] Whilst the sponsor claimed at hearing the funds remitted by him were for living expenses and tuition fees, he has previously claimed that funds remitted by him were for the parties’ travel expenses during times they were together during his trips to China. He also claimed that funds remitted by him have gone towards the cost of investment properties purchased by the applicant.

4. The Tribunal finds that the parties have no joint responsibility for care and support of children.

5. The parties have not established a shared household together, however, as they reside in different countries, the Tribunal has not placed adverse weight on this factor. The sponsor claims that he and the applicant have spent time together, since their marriage began, during the sponsor’s visits to China. The Tribunal accepts that the photographic evidence and travel records support this claim. The photographs include the parties in a kitchen area in pyjamas, which the Tribunal acknowledges could have been taken at a time they were sharing accommodation. However, in the view of the Tribunal such a photograph could equally have been taken to support the visa application in a staged manner and the Tribunal does consider this and other photographs to be of more than limited value as an indicator of the sponsor’s living arrangements during his trips to China since the parties married.

   Overall assessment of the nature of the parties’ household arrangements

6. The Tribunal recognises that the parties have resided in different countries and that this can influence the nature of their household arrangements. The Tribunal accepts the parties have spent time together, but does not consider this to reflect at best any more than temporary living arrangements. As the parties have not established a shared household, the Tribunal does not consider significant any apportioning of tasks during the limited periods the parties may have cohabited during periods the sponsor has visited China since the beginning of the marriage, as the Tribunal is not persuaded these usefully reflect on the nature of their household arrangements.

7. The Tribunal accords no weight to the nature of the parties’ household arrangements as an indicator that they were at the time of application, or at the time of this decision, in a genuine and continuing spousal relationship.

   The social aspects of the relationship

8. The Tribunal has considered the social aspects of the relationship – including whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

9. The parties claim they represent themselves as a couple to their family, friends and the wider community. The Tribunal has reviewed photographs which show the parties together and in the company of other people, in a range of settings. The photographs are not dated and have no explanatory information which would contextualise them. The Tribunal has not placed significant weight on this evidence, due to the concern that photographs such as these can be arranged to support the visa application and do not provide a clear insight into how other people in the photographs view the connection between the applicant and sponsor. The Tribunal notes the marriage certificate is an indicator the parties have represented themselves to the Chinese authorities as a couple, but with this exception there is no indication the parties present to entities, government or non-government, or the wider community as a couple in a spousal relationship.

   The opinion of the parties’ friends and acquaintances about the nature of the relationship

10. The Tribunal notes that no witness support declarations from friends or relatives were provided at the time of application, or at any stage up until the time of the delegate’s decision in June 2018.

11. With the exception of a witness support declaration from the sponsor’s son, Zhong Hai Liu, dated 6 November 2021, no witness support statements or declarations demonstrating the opinion of the parties’ friends, acquaintances or relatives about the current or recent nature of the relationship have been provided in association with the current review application. At hearing Zhong Hai Liu gave oral evidence consistent with that contained in the witness support declaration. With the clarification that the claim in his declaration, where he said he met the applicant in person in 2008 when he was travelling in China and then spoke to her through WeChat since 2013, was incorrect. He said that other details in his declaration were true and correct and confirmed that he actually met the applicant in 2008, albeit over WeChat rather than in person, and that his father and the applicant were dating in 2006. In the declaration Zhong Hai Liu claims his father and the applicant were known to each other from as early as 1984.

12. With respect to the letter from the sponsor’s son, the Tribunal has placed no weight on this document, or on Zhong Hai Liu’s opinion of his father’s relationship with the applicant which was provided at hearing. This is because the Tribunal is not satisfied the inconsistencies between information about the inception and development of the parties’ relationship contained in the witness support declaration and that claimed elsewhere by the parties has been adequately explained.[5]

    [5] Information provided by the parties claims that they were not known to each other prior to contact details being provided to each other by a third party and they started communicating by WeChat in the latter part of 2014. The parties claim they did not meet until April 2015. In May 2018 the applicant told Australian immigration officials that she had never met Zhong Hai Liu or talked to him, in person or by WeChat.

13. When asked at hearing to explain the inconsistency in his evidence with regard to this factor the sponsor’s son conceded he did not really pay attention to his father’s private life, as he does not live with him. The Tribunal notes that the available evidence indicates the sponsor was living in the same household as his son prior to May 2017 and indeed was sponsored by his son in relation to the contributory parent visa upon which he returned to Australia in March 2013. Whilst they may not live together at the present time, the Tribunal is not persuaded their current residential arrangements support Zhong Hai Liu’s contention this explains the inconsistent information provided by him both at hearing and in the witness support declaration. The Tribunal accepts Zhong Hai Liu may not pay attention to his father’s private life, but not that this ignorance was due to his not residing in the same household as his father in the period the parties claim to have started communicating with each other and subsequently becoming engaged and married.

14. At hearing the sponsor responded to his son’s oral evidence by claiming that it was contrary to Chinese culture to involve children in the private lives of their parents and that was why he did not tell Zhong Hai Liu about the applicant until after the marriage began in 2016. The Tribunal accepts that cultural difference may result in differing boundaries between the lives of parents and their offspring and that indeed, within any culture there will be a range of different communication patterns within family groups. However, the Tribunal is not persuaded any such communication boundary within the sponsor’s family explains the extent of inconsistent information that is apparent in the evidence of Zhong Hai Liu.

15. Whilst the sponsor’s 359A response claimed the inconsistencies can be explained by his son making a mistake, at hearing Zhong Hai Liu explicitly confirmed that he prepared the witness support declaration, was aware of its contents and that they were true and correct. The Tribunal accepts WeChat was not available in 2008 as claimed by the sponsor, however the Tribunal notes that the declaration states Zhong Hai Liu communicated with the applicant through WeChat since 2013. Given he provided oral evidence at hearing which was broadly consistent with that contained in the witness support declaration, the Tribunal is not persuaded both can be explained as a mistake. Rather the Tribunal has formed the view that the evidence provided by Zhong Hai Liu is unreliable and contrived in support of the parties’ claim that they are in a genuine relationship. The Tribunal finds the information in the Form 888 witness declaration does not reflect the genuine views of Zhong Hai Liu.

16. The Tribunal places no weight on evidence provided by the sponsor’s son and as a consequence finds that there is no reliable evidence which reflects on whether the parties’ relationship is viewed as genuine from friends, acquaintances or relatives of the parties, either in relation to their relationship at the time of application, in 2016, or at the time of this decision. The Tribunal considers this to be a factor that does not support the contention the parties were, at the time of application, or at the time of this decision, presenting to acquaintances, friends or relatives as a couple who are in a genuine spousal relationship.

    The basis on which the parties plan and undertake joint social activities

17. The evidence provided with the visa and review applications does contain photographs and travel records, which demonstrate that the parties have spent time together in China. The Tribunal has given some positive weight to this evidence, with the proviso that it is aware that such evidence can, in some instances, be contrived for the purpose of supporting a visa application.

    Assessment of the social aspects of the parties’ relationship

18. The Tribunal is satisfied the parties have spent time in each other’s company since 2015. The Tribunal has placed some weight on this factor. As mentioned previously, the Tribunal does not have the benefit of credible evidence as to the opinion of the parties’ friends, acquaintances or relatives about the nature of the relationship, either at the time of application, or at the time of this decision. The Tribunal is also concerned that evidence put forward, with respect to the views of the sponsor’s son, is contrived and does not represent his genuine views. The Tribunal is not satisfied the evidence demonstrates that the parties represent themselves to many agencies and organisations as a married couple and after considering the available evidence, the limited weight given to the photographic evidence does not outweigh other significant concerns with respect to this aspect of the parties’ relationship. The Tribunal accords no weight towards the social aspects of the parties’ relationship as an indicator that they were at the time of application, or at the time of this decision, in a genuine and continuing spousal relationship.

    The nature of the persons’ commitment to each other

19. The Tribunal has considered the nature of the persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

20. The parties married in February 2016. The Tribunal is satisfied that their relationship can be appropriately regarded as long term and has given some weight to this factor.

21. Since their marriage began, the parties have not lived with each other for what the Tribunal would consider to be a significant length of time. The sponsor remains a Chinese national and as a consequence citizenship of another country has not constrained his capacity to reside with the applicant in China. The Tribunal does however acknowledge the COVID-19 pandemic has constrained the parties’ ability to spend time together since the beginning of 2020, due to constraints on international travel. The Tribunal acknowledges this constraint but nonetheless does not consider it appropriate to give weight to this factor. The Tribunal acknowledges the parties’ claims that they both see their relationship as long term and notes their reference to the efforts they have made to ensure the applicant is granted a visa providing her and the second named applicant with a migration pathway to Australia.

22. The evidence before the Tribunal includes untranslated electronic messaging records. The Tribunal places no weight on this evidence as it cannot review the content of this material and notes that it is not the responsibility of the Tribunal to arrange for documents to be translated into English or to otherwise make an applicant’s case out for them. Insofar as the untranslated communication records evidencing the frequency of communication, being the records provided in association with the visa application, it is unclear the period they cover, but the Tribunal presumes this is possibly the period from 2015 through to 2017, when other documents in support of the application were provided, and those provided with the review application appear to encompass a period from September 2019 to October 2020.[6] Insofar as it is possible to provide meaningful comment on the issue of communication frequency, this does not appear to demonstrate regular communication through the period of the claimed relationship.

    [6] Estimation only.

23. In terms of positive weight given to the degree of companionship and emotional support that the parties draw from each other, the Tribunal considers both the sponsor and applicant gave reasonable and age appropriate indications of why, at this stage of their respective lives, they wish to be together. The Tribunal has given some weight to this factor. The parties also gave evidence, which the Tribunal considers reasonable, with respect to their future plans if the applicant’s visa is approved. They both indicated that the applicant would join the sponsor in Australia and that they would try and create the opportunity to make money together. Whilst this may not present as the most romantic of aspirations, it is the basis upon which viable marriages can be formed and the Tribunal has given some weight to the consistency in relation to this factor.

24. In considering the commitment aspect of the parties’ relationship there are a number of concerns that the Tribunal has turned its mind to in consideration of whether they are adequately explained and resolved. Significant among the concerns held by the Tribunal is whether the numerous inconsistencies in claims made in relation to the parties’ relationship can be adequately explained by the passage of time and poor memory recall, or whether they reflect unfamiliarity with a constructed and false narrative about significant aspects of the relationship.

25. The delegate highlighted inconsistencies regarding information provided by the parties regarding important milestones in their relationship, such as who introduced them and their marriage registration. Further details regarding these events were put to the sponsor for comment, pursuant to s 359A, after the hearing.

26. In relation to how they were introduced, the delegate considered the failure to disclose a familial relationship between the sponsor and the person who introduced the parties to each other to be of concern. The Tribunal is not concerned that a relative could be the third party connecting the applicant and sponsor, but does hold concern that not disclosing this connection when interviewed by immigration officials in May 2018 adds to a sense that there is a lack of transparency in how the parties have approached the visa application. When invited to comment on this concern at hearing, the sponsor said that he cannot now recall the detail of events in 2016 or 2015. In light of his and the applicant’s frequent recourse to memory difficulty affecting the sponsor when invited to comment on evidentiary concerns and his concession that he has no medical or mental health condition affecting his memory or general cognitive abilities, the Tribunal considers the use of this excuse to reflect attempts to deflect attention from inconsistency in evidence and the parties’ lack of familiarity with the claimed inception and development of the parties’ relationship. Further to this, the Tribunal does not accept any lack of precision in the sponsor’s memory recall at the present time as a consequence of the normal passage of time provides an adequate explanation for evidentiary inconsistency with regard to information provided in the past in association with the visa application.

27. The sponsor claims the inconsistency with regard to the gender attributed to Deng Tao, a person the sponsor conceded was a relative when pressed by Australian immigration officials, can be explained as an interpretation error. A review of the records of the parties’ separate interviews with Australian immigration officials in May 2018 indicates the sponsor consistently described Deng Tao as male. However when detail of two occasions of clear dialogue in which the applicant described Deng Tao as a female was put to the sponsor for comment pursuant to s 359A he has provided no further comment or response to the Tribunal noting that the record of interview shows responses provided by the applicant which appear coherent and congruent with the question put to her and do not present as possible interpretation errors.

28. In relation to the inconsistency in information provided to Australian immigration officials in May 2018, where the sponsor claimed Deng Xia introduced him to the applicant, whereas in her interview the applicant claimed Deng Tao arranged the introduction, the sponsor now contends that they were introduced by Deng Xia and Deng Tao acting in concert by both of them forwarding the parties’ contact details to each other. The Tribunal is not persuaded by this claim, which is contrary to what the parties have previously claimed in relationship statements provided at the time of application[7] and with the interview record as cited above. The inconsistency between the information provided by the sponsor when interviewed in May 2018 and that contained in his relationship statement is in the view of the Tribunal a further example of his lack of familiarity with claimed details of the parties’ relationship.

    [7] The parties’ relationship statements both claim it was the friend of the sponsor’s ‘classmate‘ (Deng Xia, his niece) who made the initial introduction and provided contact details.

1. A further example of this lack of familiarity with details is the inconsistency between the parties’ account of the events of their marriage registration day, where in May 2018 the applicant and sponsor gave distinctly different accounts of the day’s activity, in that the sponsor claimed the parties dined alone at a restaurant in the evening after the marriage registration and the applicant claimed that they had both attended dinner at the home of the sponsor’s elder sister. At hearing the sponsor claimed he could not recall the events of his marriage registration day, but has subsequently provided a response consistent with that given by the applicant at hearing, which is essentially an amalgamation of the claims they gave in their May 2018 interviews. The Tribunal is not persuaded this explanation adequately explains the extent of inconsistency the parties gave in May 2018 when interviewed separately and asked about this issue.

2. At hearing the sponsor was invited to comment on the concern discussed by the delegate regarding the parties’ claim that they had travelled to a location with hot springs in company with Deng Xia in April 2016, whereas when interviewed in May 2018 the applicant denied ever meeting Deng Xia. The sponsor initially gave evidence that the applicant only knew Deng Tao and had not met Deng Xia. When the apparent contradictory nature of this claim was pointed out to the sponsor he gave evidence that Deng Tao had introduced the applicant to Deng Xia and that it must have been confusion in the May 2018 interviews as if they didn’t all know each other, whether they then could have travelled together in 2016.

3. Whilst the Tribunal considers the sponsor to have raised a relevant question in posing the issue regarding the claimed April 2016 travelling arrangements, this does not explain the evidentiary concern regarding this issue, which is not in least the extent to which the sponsor contradicted himself in the oral evidence he gave regarding this issue during the hearing.

4. In relation to the reliability of information provided by the sponsor, the Tribunal is not satisfied that he has adequately explained why he gave inaccurate information regarding his family composition on forms associated with the visa application, by not disclosing he had a second child. Whilst acknowledging sensitivity arising from having more than one child at a time where there was a one child policy in China, the Tribunal does not consider this absolved the sponsor from the requirement to complete forms associated with an Australian visa application and provide information to Australian immigration officials in an accurate and truthful manner. The Tribunal is also not persuaded by the applicant’s contention that his omission can be explained by his, when interviewed, treating Australian immigration officials as though they were Chinese officials. The Tribunal does not accept this provides grounds to provide inaccurate or misleading information and is of the view this raises concern as to the potential unreliability of other information provided by the sponsor in association with this matter. In any event, the responses provided by the sponsor in an interview context in no way explain the omission of accurate information about his family composition on forms submitted in association with the visa application.

5. Whereas the family composition of the sponsor does not have direct bearing on assessment of the commitment and related aspects of the parties’ relationship, the Tribunal does consider the sponsor’s omissions and inadequate explanation for said omissions reflects poorly on the reliability of information provided by him in general.

6. With regard to the sponsor’s alleged involvement in migration fraud, involving his previous wife, in which he is to have received, or will receive a considerable amount of money to enter a contrived relationship with the applicant to facilitate a pathway for her and the second named applicant to attain permanent residency in Australia, the Tribunal makes the following findings.

7. The Tribunal accepts the sponsor’s explanation for factors suggesting that there is an ongoing unusually close connection between him and his previous wife. This includes, among others, the sponsor’s explanation for why they both have their postal address at their son’s residence, why they have not changed Hukou registration and why land in China is still held jointly.

8. The Tribunal is not satisfied that there is evidence to substantiate the involvement of the sponsor’s previous wife in arranging a contrived marriage for migration purposes between the sponsor and applicant.

9. The Tribunal is not satisfied that there is evidence to substantiate the payment of money to the sponsor for entering into a contrived marriage with the applicant.

   Assessment of the commitment aspects of the parties’ relationship

10. In this matter, the Tribunal is of the view that the positive weight given to the length of the parties’ marriage and their discussion of their circumstances and future plans does not outweigh the adverse weight given to the concerns held by the Tribunal, which have not been adequately resolved by the explanations provided by the sponsor. The Tribunal does not consider the assessment of the commitment aspects of the parties’ relationship to be an indicator that they were at the time of application, or at the time of this decision, in a genuine and continuing spousal relationship

    Overall assessment of the spousal relationship

11. The Tribunal is required by the Act to consider the overall evidence regarding the parties’ relationship, both at the time of application and at the time of decision, in order to determine if they have the required mutual commitment to a shared life together in a relationship that is both genuine and continuing.

12. In relation to the time of application, the Tribunal is not satisfied that the evidence demonstrated that the parties had the aforementioned commitment to a genuine and continuing relationship. Whilst acknowledging the circumstances whereby a visa and review applicant reside in different countries makes their circumstances quite distinct from a situation where they live in the same country, the Tribunal is not satisfied that in or around the September 2016 period, the parties had, to any significant degree, shared regular day-to-day household expenses, pooled their finances or had any shared assets, debts or legal obligations to each other. The Tribunal is not persuaded the claims before it with respect to the purpose of funds remitted to the applicant by the sponsor over the period since the beginning of the parties’ marriage are corroborated by credible documentary evidence. As a consequence of the evidentiary concerns as discussed in this decision, the Tribunal finds that at the time of decision the financial aspects of the parties’ relationship are no more indicative of a couple in a genuine spousal relationship than they were at the time of application.

13. There is limited credible evidence the parties have resided together for more than brief periods since their marriage began. The Tribunal is not persuaded the parties share responsibility for the support and care of the second named applicant and there is no claim that they have any shared support or care responsibilities for their respective older children.

14. There is evidence that the parties have planned and undertaken some social activities together and in the company of other people. However there is no credible evidence as to the opinion of relatives, friends or acquaintances about the parties’ relationship.

15. For reasons explained elsewhere in this decision, the Tribunal has concerns as to the extent to which the parties have been in an emotionally supportive relationship with any significant degree of companionship. The parties indicate they see their relationship as long term; however, unresolved concerns about the reliability of evidence provided by the parties has resulted in the Tribunal having doubt about this claim.

16. The Tribunal has not placed undue significance on what it considers could be viewed as relatively minor inconsistencies in the evidence, or on an anonymous allegation the parties are involved in organised migration fraud involving the sponsor’s previous wife. However, when considered cumulatively, the Tribunal has concern as to the reliability of information given by the parties and the witness in support of the claim that the parties were, at either the time of application or at the time of this decision, in a committed relationship.

17. In relation to the circumstances of the parties’ relationship at the time of decision, there is little indication the aspects of the parties’ relationship have changed from what they were around the time of visa application. Whilst the duration of the claimed relationship is now longer, there is a concerning lack of overt support from friends or relatives of the parties, with the exception of a declaration and evidence from the sponsor’s son which the Tribunal considers lacks credibility, attesting to the current or recent nature of their relationship. There is little other probative evidence regarding the current aspects of the parties’ relationship upon which positive weight can be ascribed.

18. The Tribunal does acknowledge the parties have endeavoured to achieve a result that would provide the applicants with a migration pathway to permanent residency in Australia and that this can reflect their wish to be together. It can also reflect the applicant’s wish to achieve this migration outcome. As is discussed in Re MILGEA and Dhillon, this is not problematic, providing the circumstances of the relationship meet the relevant test: that is, whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others. In the circumstances of this case, the Tribunal is not satisfied that there is enough probative evidence regarding the parties’ relationship to support a finding that they have such a commitment. As discussed, the Tribunal also has unresolved concerns about the reliability of some of the evidence provided by the parties in support of their claims.

19. In the view of the Tribunal and notwithstanding the findings made in response to the allegation of involvement in wider scale organised migration fraud, the cumulative concerns held by the Tribunal give rise to a concern that the parties’ relationship was contrived to provide a migration pathway for the applicant and her daughter to achieve permanent residency in Australia. The positive weight given to some factors, as discussed in the decision, do not outweigh this concern.

20. The findings it has made and the Tribunal’s consideration of the evidence before it, has resulted in it not being satisfied that at the time of application, or at the time of this decision, the parties have the required mutual commitment to a shared life as husband and wife to the exclusion of all in a relationship that is genuine and continuing.

21. The Tribunal therefore finds that the applicant does not meet the definition of ‘spouse’ in s 5F(2)(b)–(d).

22. The applicant cannot satisfy cl 309.211(3) because the parties were married at the time of application.

23. As the applicant does not meet the definition of spouse she does not meet the requirements of cl 309.211 or cl 309.221.

    Second named visa applicant

24. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second named visa applicant is unable to meet cl 309.311 because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl 309.211 or cl 309.221.

25. For the reasons above, the Tribunal finds the visa applicants do not satisfy the criteria for the grant of the visas.

    DECISION

26. The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    David Barker
    Member

    
    
    ATTACHMENT - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).