Liu (Migration)

[2017] AATA 754

Liu (Migration) [2017] AATA 754 (21 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haoyu Liu

CASE NUMBER:  1602497

DIBP REFERENCE(S):  BCC2015/2425398

MEMBER:Kira Raif

DATE:21 April 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a New Zealand Citizen Family Relationship (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for the Subclass 461 (New Zealand Citizen Family Relationship (Temporary) visa:

· cl. 461.212 of Schedule 2 to the Regulations.

Statement made on 21 April 2017 at 10:53am

CATCHWORDS

Migration – New Zealand Citizen Family Relationship (Temporary)(Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary) – Genuine marriage – Periods of separation – Financial and career commitments in different countries

LEGISLATION

Migration Act 1958, ss 5F(2)(a)-(d), 65
Migration Regulations 1994, Schedule 2, cl 461.212, r 1.12, r 1.15A(3)

CASES
Bretag v MILGEA (unreported, Federal Court of Australia, O’Loughlin J, 29 November 1991)

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 15 February 2016 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of China, born in August 1974. He applied for the visa on 19 August 2015 on the basis of being a spouse, and a member of the family unit, of a person who was the holder of a Special Category visa. The delegate refused to grant the visa on the basis that cl. 461.212 was not met because the delegate was not satisfied the applicant was the spouse and a member of the family unit of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal by phone on 21 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. One of the criteria to be satisfied at the time of the application is clause 461.212. Relevantly, it requires the applicant to be a member of the family unit of a person who is in Australia as a holder of the Subclass 444 (Special Category) visa. The term ‘member of the family unit’ is defined in r. 1.12 and includes a spouse or a de facto partner.

5. Section 5F of the Act defines the term ‘spouse’ and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act: s.5F(2)(a). Additionally, the Tribunal must be satisfied that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together, or do not live separately and apart on a permanent basis: s.5F(2)(b)-(d).

6. In forming an opinion whether two persons are in a married or de facto relationship, in the Tribunal may have regard to all the circumstances of the relationship, including in particular the considerations set out in r.1.15A(3) for spousal relationships. These considerations relate to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other.

7. In determining whether one person is the spouse of another, the Tribunal may have regard to evidence of subsequent history as an aid to determine facts at an earlier point in time, where that subsequent history tends logically to show the existence or non-existence of those facts: Bretag v MILGEA (unreported, Federal Court of Australia, O’Loughlin J, 29 November 1991).

   Is the applicant a member of the family unit of the holder of a special category visa?

8. The primary decision record, a copy of which the applicant provided to the Tribunal, indicates that the applicant was in Australia at the time the application was made. The Tribunal is not satisfied that the applicant meets cl. 461.212(4) and cl. 461.212(2)(b). The primary decision record indicates that the applicant was in Australia as a holder of the Subclass 461 visa at the time of the application, however, he does not claim, and there is no evidence, that he is no longer a member of the family unit of the person in relation to whom he was granted the Subclass 461 visa. The Tribunal is not satisfied the applicant meets cl. 461.212(3)(b) and cl. 461.212(3).

9. The applicant seeks to satisfy cl. 461.212(2)(a) and claims that he is a member of the family unit of a person who is a holder of a subclass 444 visa. The relevant provision in r. 1.12 is subregulation 1.12(2) and the Tribunal finds that r. 1.12(2), (2A), (6) and (7) do not apply in this case. There is nothing before the Tribunal to suggest that the applicant is a dependent child of the sponsor or a dependent child of a dependent child. The Tribunal is also not satisfied that the applicant is a relative of the sponsor. The Tribunal is not satisfied that the applicant meets r. 1.12(1)(b), (c) and (e).

10. The applicant provided with his application a copy of the marriage certificate evidencing his marriage to Ms Juan Du. The Tribunal is not satisfied on the basis of this evidence that the applicant is the de facto partner of Ms Ms Du, for the purpose of r. 1.12(1)(a). The Tribunal must consider whether the applicant is the spouse of Ms Du.

11. The sponsor’s evidence to the Tribunal is that she and the applicant knew each other from childhood and were high school sweethearts. She migrated to New Zealand with her family and in 2001 she returned to China to marry the applicant. He quit a good job in China and they both lived and studied in New Zealand. After a few years they decided that they would have better opportunities in China. The applicant returned to China in 2005 and she stayed in New Zealand for another year to obtain the citizenship. When she moved to China, her health was affected. They lived together in China until 2009 but because the sponsor could not obtain a good job, she decided to return to New Zealand. In 2010 she moved to Australia and obtained a part-time job with her brother. In the meantime, the applicant stayed in China ‘to make money’ and she made several trips to China to see him. The sponsor said that they simply made the decision that while young, the applicant should remain in China to make money to secure their future as he would be unlikely to get a good job in New Zealand or in Australia.

12. The Tribunal acknowledges that the parties had been married since 2001, for a period exceeding fifteen years. The Tribunal accepts that since that time there were lengthy periods of separation but the Tribunal also acknowledges that the partners had lived together for many years, including in New Zealand between 2001 and 2005, in China between 2006 and 2009 and for shorter periods since that time. The Tribunal finds it problematic, as did the delegate, that the partners spent only months together in the past six years since the applicant was granted the Australian visa. Nevertheless, the Tribunal accepts the couple’s evidence the separation was caused by the couple’s employment commitments and their desire to maintain higher income, purchase a house and by other considerations. The Tribunal accepts the sponsor’s evidence that she cannot live in China due to her health and that the family made the decision for the applicant to remain in China for financial benefits. In the circumstances, the Tribunal accepts that the separation does not reflect the parties’ lack of commitment or lack of desire to be together, but rather their priorities. The Tribunal also acknowledges that the couple made considerable effort to be together during this separation, with the sponsor making several lengthy trips to China since 2010 and the applicant stayed in Australia in 2015. The Tribunal is satisfied that in these periods the couple had established a joint household, as they did on other occasions when they lived together in China, Australia and New Zealand. The Tribunal is satisfied that the couple have established a joint household during the periods they have spent together.

13. The Tribunal accepts the applicant’s evidence that in 2013 they made the decision for the applicant to move to Australia but the plans were delayed because they wanted to buy a property and because of the visit of the sponsor’s father in Australia.

14. There are several statements from third parties concerning the relationship. The relationship has been in existence for a period of fifteen years. It is recognised by family and friends. The Tribunal is satisfied the couple socialise when they live together and communicate daily when they are apart. The Tribunal accepts that friends and relatives recognise and accept the relationship and there is strong family support for the relationship. The Tribunal accepts that they provide support to family members. The Tribunal accepts that when the parties are together, they plan and undertake joint social activities.

15. There is evidence before the Tribunal concerning the financial aspects of the relationship. The Tribunal accepts the sponsor’s evidence that the applicant remained in China in recent years in order ‘to make money’ and provide financial security for the family. The Tribunal acknowledges that the applicant has sent a considerable sum of money to the sponsor to contribute to the purchase of the house. The Tribunal also accepts the sponsor’s evidence that the applicant provides her with cash through friends and when they travel to visit each other. The Tribunal is satisfied the couple had jointly contributed towards the purchase of the house and have joint liabilities. The Tribunal is satisfied they pool their resources when they live together and that they are willing to support each other financially.

16. The Tribunal accepts the sponsor’s evidence that the couple communicate daily. The Tribunal is satisfied that they rely on each other for comfort and emotional support. The Tribunal accepts their evidence that they now made the decision to be together and to establish their lives in Australia.

17. Having regard to all the circumstances of this relationship, the Tribunal is satisfied that the applicant is the spouse of the sponsor. The Tribunal finds that at the time the applicant was made, the applicant was a spouse and a member of the family unit of the sponsor.  He meets cl. 461.212(2) and cl. 461.212.

    Conclusion

18. Given the findings above, the Tribunal remits the matter with a direction that the applicant meets cl. 461.212

    DECISION

19. The Tribunal remits the application for a New Zealand Citizen Family Relationship (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for the Subclass 461 (New Zealand Citizen Family Relationship (Temporary) visa:

    · cl. 461.212 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member