Lu (Migration)

[2024] AATA 1681

Lu (Migration) [2024] AATA 1681 (3 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Minglin Lu

CASE NUMBER:  2109338

HOME AFFAIRS REFERENCE(S):          BCC2018/4546355

MEMBER:Donna Petrovich

DATE:3 June 2024

PLACE OF DECISION:  Melbourne

DECISION: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) visa:

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

·cl 820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 03 June 2024 at 1:50pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – duration of the relationship – any other circumstances – length of de facto relationship immediately before the date of application – waiver of requirement – compassionate and compelling circumstances – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), r 1.15A, 2.03A; Schedule 2, cls 820.211, 820.221

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 October 2018 based on her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. 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 (the applicant) did not satisfy cl 820.211(2)(a) of the Regulations. 

4. The delegate found it implausible that the applicant met her sponsor by accident on her first day in Australia and developed a relationship to the point where they were in a committed long- term relationship 6 months later.

5. It was the finding of the delegate that the couple had not been in a de facto relationship for 12 months prior to the lodgement of the application.  Further, according to the delegate compassionate and compelling circumstances did not exist justifying the waiver of the 12- month de facto relationship requirement, resulting in the refusal of the visa.

   Background

6. The applicant arrived in Australia on a Visitor visa to visit friends for Christmas in December 2017.  The applicant claims that she stayed with friends in Bendigo, Melbourne and Echuca.

7. According to the applicant when she met the sponsor at the end of March 2017, he was a V/Line bus driver who drove between Echuca and Melbourne.

8. The applicant gave the sponsor her telephone number.  She also asked for the sponsor’s telephone number after she had spoken to him briefly on the bus.

9. The applicant then rang him, and they arranged to meet in Shepparton where she was staying with a friend.  Testimony was provided by the Tribunal that they met at the end of April 2018.

10. The Tribunal heard that a couple of days after their initial meeting, the applicant went to Deniliquin staying for 2 days at the sponsor’s home.  The sponsor, as he had time off work, picked the applicant up from Shepparton driving her to his home.

11. She stayed at the sponsor’s home with him until her return to China.

12. Testimony was provided that the applicant had worked as an office manager in China, but now she operates a massage shop in Echuca.

13. The couple were married in a civil ceremony at the sponsor’s home in Deniliquin.  A small number of friends were in attendance.  The wedding was conducted during Covid.  A copy of their Certificate of Marriage appears in the Department file evidencing the couple’s marriage in Deniliquin, NSW on 10 October 2020.

14. They have lived together continuously since. 

15. The couple returned to China where they claim they held a second marriage ceremony and visited family.  

16. The sponsor owns his own home in Deniliquin, living alone following the breakdown of his first marriage.

17. The applicant appeared before the Tribunal on 21 May 2024 to give evidence and present arguments at an in- person hearing. The Tribunal notes that two prior video hearings were scheduled at the applicant’s request because of travel time to the Tribunal given the couple reside in rural Victoria.  However, the first video hearing was adjourned whilst the second video hearing did not proceed.  This is because of technical issues experienced by the applicant on the day of the scheduled hearings.  The pre-connection test had been successful. 

18. At the in- person hearing oral evidence was provided by Mr Andrew Paul Ash, the applicant's partner and sponsor.  Julia Cooley, the sponsor’s daughter, also provided oral testimony at the in- person hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether the couple were in a de facto relationship at the time of application as required by cl. 820.211(2)(a) of the Regulations.  Relevantly to this issue is whether compassionate and compelling circumstances exist to justify waiving the requirement that the couple must have been in a de facto relationship for 12 months at the time of lodging the Partner visa application as provided for in cl 2.03A of the Regulations.

    Whether the parties are in a spouse or de facto relationship:

21. Clauses 820.211(2) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

22. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

23. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided photographs of a wedding ceremony held at the sponsor’s home with a small number of friends in attendance in compliance with Covid 19 restrictions.  The couple’s Certificate of Marriage dated 10 October 2020 appears in the Department file.  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).

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

24. The couple provided hearing testimony that they shared a joint bank account, but that they also maintained separate bank accounts as the applicant had her own massage business in Echuca.

25. The applicant told the Tribunal that in Australia she had funded her travel and living expenses through her own savings saved whilst working as an office manager in China.

26. The applicant told the Tribunal that the couple shared living expenses.  She bought the groceries and that the sponsor paid the utilities. 

27. Material supporting the couple’s financial arrangements have not been supplied to the Tribunal.  The Tribunal has not received the claimed joint bank account evidence.  Nor have statements been supplied to the Tribunal evidencing the separate bank accounts held by the applicant or sponsor.  Further, utility bills in the sponsor’s name have not been submitted to the Tribunal in evidence. 

28. It was claimed at the hearing that the couple had been to China to visit the applicant’s family and conduct a second wedding.  The sponsor showed the Tribunal photographs on his telephone. At the hearing, it was requested that these photographs of the couple’s claimed second wedding be forwarded to the Tribunal.

29. The Tribunal also requested that the applicant forward copies of flight schedules and tickets of their travel to China.  It was claimed by the sponsor that they travelled separately to China but had returned to Australia together.

30. The Tribunal requested that this evidence was to be provided to the Tribunal at an agreed time.  Post hearing details of the couple’s travel from Melbourne to Beijing was provided showing the applicant left Melbourne on 26 May 2023 and returned on 4 August 2023 on the same flight as the sponsor. The sponsor flew to Beijing on 21 July 2023 due to work commitments.

31. The Tribunal also received additional photographic evidence showing the couple at home and in various settings indicating that they share a household together.

32. The sponsor owns his own home.  The applicant lives with him and does not live anywhere else.  This indicates to the Tribunal that the sponsor has pooled his assets by virtue of their marriage.

33. The applicant lives with the sponsor on a permanent basis.  Should their relationship end resulting in a property divorce settlement, the applicant would be regarded as his spouse entitling her to a percentage of the sponsor’s assets.  This is so even in the absence of a prenuptial agreement between the couple.

34. The Tribunal received little other evidence of pooling of finances to substantiate the claims made by the couple of their sharing of day- to- day household expenses. 

35. However, in light of the couple’s living arrangements as described at the hearing, the Tribunal is prepared to accept that there is some pooling of finances by them.

36. Therefore, the Tribunal places some small weight in favour of the applicant in this regard.

    Nature of the household

37. The Tribunal heard at the hearing that the applicant does most of the cooking of an evening, whilst the sponsor often cooks breakfast and prepares lunch if they are both at home.

38. The sponsor told the Tribunal that he mows the lawn and does the majority of the housework as he is better at cleaning than the applicant.

39. It was claimed in a written statement that the couple have a dog and cat that they take care of together.  However, there is no photographic evidence of the couple’s pets or discussion at the hearing in relation to who cares for the animals or the couple’s other activities.  The Tribunal places no weight in relation to this evidence. 

40. The Tribunal received photographic evidence of the couple’s lives together, many of which were in their home, sharing meals and activities.  

41. The Tribunal accepts that there is some sharing of housework by the couple and places some weight in favour of the applicant.             

    Social aspects of the relationship

42. The Tribunal heard that the couple have many friends.  They often visit others, go out to the club and have meals together.

43. The sponsor’s daughter appeared at the hearing via telephone.  She told the Tribunal that she was unable to attend their wedding as she lives in South Australia and Covid restrictions were in place.

44. She told the Tribunal that the couple visited her family on their country property.  They all got on very well together and the couple were very happy despite the applicant’s English language difficulties.  The witness told the Tribunal that she saw her father (the sponsor) twice a year, and that it was apparent that the applicant looked after her father and was very good for him.

45. The Tribunal has reviewed the evidence and acknowledges that wedding photographs substantiate that the couple appear to have friendships with those who attended their wedding.  The sponsor’s daughter acknowledges the couple’s relationship.

46. The couple were given the opportunity to provide additional evidence after the hearing. Photographic evidence shows the couple at various locations with the sponsor’s daughter, husband, and child.  The photographs with the sponsor’s grandchild show various milestones in the infant’s life. There was also evidence of family activities on different occasions with the sponsor’s mother.      

47. The material presented in relation to the social aspects of their relationship is consistent with the couple’s lifestyle as well as other evidence that has been provided to the Tribunal.

48. The Tribunal finds that the submission of the sponsor’s daughter is credible.  Due to the distance that they live from each other, the sponsor and his daughter do not see each other regularly.  The sponsor’s daughter explained that they enjoy their visits and that she is happy for the couple.  She described the couple’s relationship as loving.  She provided testimony that the applicant and sponsor are very happy together.  The Tribunal places some weight in favour of the applicant.

49. In addition, the wedding photographs provide insight into the nature of the wedding and those who attended. The Tribunal places some weight in favour of the applicant in this regard.   

    Nature of the persons commitment to each other

50. At the hearing the couple provided details of their meeting.  They told the Tribunal that this occurred on a bus trip between Bendigo and Echuca when the applicant was travelling to Echuca to visit a friend.

51. The sponsor is employed as a bus driver with V/Line.  The applicant claims that she asked for the telephone number of the sponsor who was driving the bus.  A few days later she rang him, and they arranged to meet in Shepparton.

52. The applicant provided an inconsistent account of their meeting.  At one stage she suggested that they had been introduced by a Chinese friend who lived in Deniliquin.  She then moved on from that explanation to describe the interaction between herself and the sponsor.  However, the variation in her account causes the Tribunal to doubt the applicant’s credibility.

53. The applicant denies that she regularly provides her telephone number to strangers claiming that as she liked the sponsor, she gave him her telephone number.

54. There was confusion in the applicant’s submission regarding the time frame of their meeting and the date that she went to stay with him at his home a few days after their initial date in Shepparton.  This has caused the Tribunal to doubt the applicant’s credibility.

55. However, the sponsor clarified the dates and times of the couple’s meeting. 

56. He claimed that they initially met on 18 March 2018 exchanging telephone numbers. 

57. They then met in Shepparton at the end of April 2018 and the applicant stayed with him at his home in Deniliquin. 

58. A few days later she moved in with him and stayed until she returned to China.  The sponsor told the Tribunal that during this time he proposed to her, and they were married on 10 October 2020.  The Tribunal accepts the sponsor’s clarification of details and places weight in favour of the applicant.

59. The couple applied for Partner visa on 17 October 2018.  They developed an ongoing relationship on 30 April 2018.  Therefore, they had not been in an ongoing relationship, as is required, for 12 months prior to the Partner visa application being lodged with the Department.

60. The Tribunal in considering the evidence finds that the applicant’s testimony was often confused and appeared to be misleading.

61. The Tribunal was reassured by the sponsor and the witness that this was often the case with the applicant.  They claimed that the applicant’s recall of dates and circumstances often varies, and that this could be attributed to her communication and English language difficulties.

62. The Tribunal has considered this assertion.  The Tribunal acknowledges the difficulty in providing hearing evidence and the use of interpreters.  The Tribunal gives small weight in favour of the applicant.    

63. The Tribunal in considering the circumstances finds that the couple has remained in a continuing relationship for 6 years and married in 2020.  Consequently, their relationship should be considered long term. As this is the case the Tribunal places some weight in favour of the applicant.

64. The sponsor explained that they were unaware of the requirement that they be in a 12 - month relationship prior to lodging the Partner visa application with the Department. He seemed to be unaware of this requirement when it was further explained at the hearing.

65. The Tribunal gives additional weight to the couple’s relationship due to its duration. Their relationship has been continuous.  However, the Tribunal does regard their explanation of their initial meeting and moving in together, both unconventional and implausible. 

66. It is the finding of the Tribunal that they are now married, sharing their lives in a genuine, ongoing way. They have remained together, cohabitating continuously, sharing holidays, family activities and day to day life.  They have also commenced a business.    

67. The Tribunal heard from the sponsor and his daughter (who appeared as a witness) that the couple take care of each other.  They spend time each evening talking about their day and providing emotional support to each other. 

68. The couple are in a committed relationship.  They plan to do some travel together, including taking a cruise later this year.

69. The Tribunal in considering this evidence places weight in favour of the applicant.

    Any other circumstances

70. The Tribunal finds that the couple have a mutual commitment to a shared life to the exclusion of all others.  Their relationship is genuine and continuing.  They live together and are not living separately and apart on a permanent basis.

71. Based on the above, the Tribunal is satisfied that compassionate and compelling circumstances exist justifying the waiver of the requirement that the couple has been in a de facto relationship for at least 12 months immediately before the date of the application.  This is particularly so given the duration of their relationship, the couple’s valid marriage in 2020, the level of emotional support that they draw from each other and the adverse impact on the sponsor (an Australian permanent resident) should his wife be required to depart Australia.

72. In light of the compassionate and compelling circumstances, the Tribunal finds that cl 2.03A of the Regulations and s 5CB of the Act are met at the time of application.  The Tribunal finds that at the time of application, the applicant was the de facto partner of the sponsor.  It follows that cl 820.211(2)(a) of the Regulations is satisfied by the applicant at the time of visa application having been lodged with the Department.

73. As the couple married in 2020 and on the basis of the evidence in totality, the Tribunal is satisfied that they are now, at the time of this decision, in a genuine spousal relationship as defined by s 5F(2) of the Act.  Consequently, the Tribunal finds that cl 820.221(1) of the Regulations is met by the couple at the time of the decision.

74. Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a) of the Regulations.

75. 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

1. 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) visa:

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

   ·cl 820.221(1)(a) of Schedule 2 to the Regulations

   Donna Petrovich
   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).