Liu (Migration)

[2018] AATA 3303

Liu (Migration) [2018] AATA 3303 (16 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jin LIU

CASE NUMBER:  1620788

DIBP REFERENCE(S):  BCC2015/3811803

MEMBER:Shane Lucas

DATE:16 July 2018

PLACE OF DECISION:  Melbourne

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

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

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 16 July 2018 at 4:01pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Spouse of the sponsor – Translated marriage certificate – joint transactional and savings account – superannuation beneficiary – joint ownership of real estate – shared child – sponsor’s domestic duties – third party opinion – photographic evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision by a delegate of the Minister for Immigration on 29 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a Chinese national born on 10 January 1989. She applied for the visa on 11 December 2015 on the basis of her relationship with her sponsor. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Relevant to this matter, the primary criteria include cls.820.211(2)(a) and 820.221.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cls.820.211(2)(a), and consequently 820.221, of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was the spouse of the sponsor. The delegate considered that the evidence and information provided in support of the application was not sufficient to demonstrate that the visa applicant satisfied the definition of spouse under s.5F of the Act.

4. The applicant seeks review of the delegate’s decision.

5. The Tribunal wrote to the applicant on 30 May 2018 requesting further information in relation to the application for review to be provided within 14 days (i.e. by 13 June 2018). On 8 June, 12 June and 13 June 2018, the applicant provided additional evidence in support of her application.

6. On consideration of the evidence provided on and before 13 June 2018, the Tribunal determined that a hearing was not required and that a decision on the review could be made on the basis of the documentation received.

7. The applicant was represented in relation to the review by a registered migration agent.

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

   Relevant law

9. Clauses 820.211(2)(a) and 820.221 of the Regulations require that at the time the visa application was made (and at the time of 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 visa applicant claims to be the spouse of the sponsor. The parties provided documentation attesting that the sponsor (born in China on 19 July 1983) was granted permanent residency in Australia on 28 November 2012. Accordingly, the sponsor satisfies the requirements of cls.820.211(2)(b) and 820.221.

10. ‘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, the nature of the parties’ household, and their commitment to each other as set out in r.1.15A(3).

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The visa applicant provided the Tribunal with a certified copy (and accompanying translation) of a Certificate of Marriage showing the marriage was made at Tianjin, China on 2 July 2014. There is nothing to suggest the marriage is not valid. The Tribunal is therefore satisfied on the evidence that 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).

    Are the other requirements for a spousal relationship met?

12. The applicant provided documentation to the Tribunal that was not available to the delegate.

    Financial aspects of the relationship

13. The applicant provided the Tribunal with documentation regarding the financial aspects of the relationship between the parties. The material included but was not limited to documentation attesting to the couple’s joint transactional and savings accounts with the Commonwealth Bank of Australia; a Residential Tenancy Agreement in joint names regarding the couple’s former rental property in Glen Waverley, Victoria; documentation pertaining to a car purchase in the applicant’s name (dated 18 December 2015) with accompanying documentation attesting to payments made for the purchase from the aforementioned joint bank account; utility, insurance and medical bills in joint or individual names; documentation attesting to the sponsor’s superannuation account with Australian Administration Services (AAS) and the nomination of the applicant as sole beneficiary (100%) of this account in the event of the sponsor’s decease; and a Contract of Sale for Real Estate in the sponsor’s name regarding the purchase of the couple’s home in Knoxfield, Victoria on 28 June 2016.

14. In a written statement provided to the Tribunal (dated 24 November 2015) the sponsor summarised the approach the couple take to sharing their financial resources, acquitting the home loan, and jointly contributing to their weekly household expenses:

    “After marriage, I gave all my money to my wife to manage. My ability of finance management is not good, and my wife is more careful and has the knowledge in this aspect. So I am happy to let her handle it. Fortunately, [the applicant] is very rational about expense. She has very special way to manage our money, and we never are short of money.”

15. On consideration of the evidence, the Tribunal finds that the couple have pooled their financial resources and share day-to-day household expenses. The Tribunal finds that the couple have committed to joint ownership of real estate, being the property in Knoxfield. The Tribunal finds that the parties have joint liabilities and owe legal obligations in respect of each other through the ownership of this property, and through their shared parenthood of a child, born on 20 May 2017 in Dandenong, Victoria.

16. The Tribunal is therefore satisfied that the financial aspects of the relationship attest to the genuine and continuing spousal relationship between the parties.

    Nature of the household

17. The applicant provided the Tribunal with documentation and written evidence regarding the nature of the couple’s household. The parties met in April 2014 in Tianjin and were married in that city in July 2014. They travelled together to Australia in October 2015 and have lived together subsequently in homes in Glen Waverley and Knoxfield in Melbourne’s outer eastern suburbs. In a written statement provided to the Tribunal (dated 24 November 2015) the applicant described the couple’s approach to domestic life thus:

    “Unlike other traditional Chinese families, my husband takes up the responsibility of cooking at home because he works in [a] kitchen… In terms of housework, I am very grateful to my husband. I do not do much housework as my husband loves me very much.”

18. On 8 June 2018, the Tribunal was provided with a certified copy of the Birth Certificate of the couple’s child, born on 20 May 2017 in Dandenong, Victoria. The Tribunal was also provided with photographic evidence and a certified copy of the child’s Certificate of Australian Citizenship. In the additional documentation provided to the Tribunal on or before 13 June 2018, the parties submitted a Maternity Discharge Summary for the applicant (dated 24 May 2017) from Monash Health Maternity Services and DNA analysis documentation from DNA Solutions in Wantirna South, Victoria attesting to the maternity and paternity of the child. The organisation made the following findings:

    “The conclusion stated in the report is that the test results support [the sponsor] being the biological father of [the applicant’s] child. [The sponsor] is greater than 10 billion times more likely to produce a child with the required alleles than a man drawn randomly from the Asian population. This equates to a Relative Chance of Paternity of greater than 99.99999999%.”

19. On the basis of this analysis, the Tribunal is satisfied that the child born to the applicant on 20 May 2017 is the shared child of the applicant and the sponsor.

20. On the basis of the evidence, the Tribunal finds that the couple live together and share responsibility for the housework and cooking, noting that the sponsor does the majority of these domestic duties. The Tribunal finds that the parties have established a joint household. The Tribunal finds that the parties have joint responsibility for the care and support of their shared and acknowledged child, born on 20 May 2017.

21. The Tribunal is therefore satisfied that the nature of the parties’ household attests to the genuine and continuing spousal relationship between the parties.

    Social aspects of the relationship

22. The Tribunal considered statutory declarations from ten third parties, being friends and family members of both parties, and photographic evidence provided by the persons attesting to the social aspects of the couple’s relationship.

23. The individual declarants are known personally to both the applicant and sponsor, and the Tribunal found the declarations to be detailed, credible and insightful with regard to the declarants’ knowledge of the parties, and sincere in tone and reflection on the nature of the couple’s genuine and continuing spousal relationship.

24. The Tribunal was also provided with extensive photographic evidence attesting to the couple’s social and recreational activities in Australia and China. The photographs show the couple together and/or in the company of friends and family members (including their now 14 month old daughter) in a wide range of settings and on casual social occasions at tourist destinations in China, country Victoria and New South Wales.

25. On the basis of the evidence, the Tribunal finds that the persons represent themselves to others as being married to each other, and that the couple plan and undertake joint social activities. The Tribunal finds that the relationship is viewed as genuine and continuing in the opinion of the couple’s family members, friends and acquaintances.

26. The Tribunal is therefore satisfied that the social aspects of the relationship attest to the genuine and continuing spousal relationship between the parties.

    Nature of the persons’ commitment to each other

27. The parties first met in person on 6 April 2014, having been introduced by a cousin of the applicant and a friend of the sponsor who at that time worked in the same organisation. In the couple’s respective written statements, the parties each describe a relationship that evolved rapidly to the point where the sponsor proposed marriage on 26 June 2014. The couple subsequently completed the formal marriage documentation with the relevant Chinese authorities on 2 July 2014, and celebrated their wedding at a ceremony with friends and family in Tianjin on 20 September 2014. In her written statement to the Tribunal, the applicant provided the following observations concerning the couple’s relationship:

    “In the life after marriage, we also would argue with each other about odds and ends. But fortunately after the argument we would analyse our problem and the reason why we argued. During the process of constant communications and arguments, we have more understanding for each other. And gradually we had less argument and we became more tolerant of each other. I believe this is all built up on the basis of our love to each other and the effort we have made to fit in each other’s lives.”

28. In a Statutory Declaration made by a close friend of the sponsor (dated 1 June 2018) the declarant provided a credible and insightful account of the nature of the persons’ commitment to each other:

    “[The sponsor] is very considerate to [the applicant], especially after her pregnancy. This is because [the applicant] had symptoms of bleeding during the first three months of her pregnancy and had to rest at home every day. Thus, [the sponsor] shouldered the responsibility of making money to support his family, doing housework and taking care of [the applicant]. That period of time was very hard for him, but seeing [the applicant] getting better day by day, the happiness of [the sponsor] was also overwhelming. Afterwards, we are so happy to see that [the applicant] gave birth to their daughter successfully.”

29. On consideration of the evidence, the Tribunal is satisfied regarding the duration of the relationship and the length of time the couple have lived together (and not lived separately and apart) since their marriage in July 2014. The Tribunal finds that the persons draw on each other for a significant degree of companionship and emotional support, and that they view their relationship as a long term one.

30. The Tribunal is therefore satisfied that the nature of the persons’ commitment to each other attests to the genuine and continuing spousal relationship between the parties.

31. Having regard to all the circumstances of the relationship, the Tribunal is satisfied that when the application was made and at the time of this decision, the applicant and sponsor had a mutual commitment to a shared life to the exclusion of others. The Tribunal is satisfied that their relationship is genuine and continuing. The Tribunal is satisfied that the applicant and the sponsor live together. On the basis of the above, the Tribunal is satisfied that the requirements of s.5F(2)[(a)-(d)] are met at the time the visa application was made and at the time of this decision. Therefore the applicant meets cls.820.211(2)(a) and 820.221.

    Conclusion

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

    DECISION

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

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

    ·cl.820.221 of Schedule 2 to the Regulations.

    Shane Lucas
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

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

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).