Ma (Migration)

[2018] AATA 1397

Ma (Migration) [2018] AATA 1397 (10 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ngan Phuong Ma

CASE NUMBER:  1622247

DIBP REFERENCE(S):  BCC2015/1656752

MEMBER:Adrienne Millbank

DATE:10 April 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 10 April 2018 at 3:53pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Ignorance of each other’s financial situation – House-share arrangement – Relationship certificate – Family’s awareness of relationship – Travel separately – No progress towards goals

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, r 1.09A, Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 8 December 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 applicant applied for the visa on 10 June 2015 on the basis of her relationship with her sponsor. At that time, 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a). The delegate did not consider the evidence and information provided sufficient to demonstrate that the applicant was the spouse or de facto partner of the sponsor, as defined under section 5F or 5CB of the Migration Act.

4. The applicant appeared before the Tribunal on 15 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, and two supporting witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant was born in Vietnam on 15 April 1983. She first arrived in Australia on 13 April 2010, on a Student (subclass 573) visa. On 9 August 2012 and 5 March 2014, she was granted student (subclass 572) visas. At hearing she advised that she dropped out of her Masters of Business course because she found it too difficult, and subsequently dropped out of nursing, because she again found the coursework too difficult. She stated that she studied English, while on her Student visas, and that she worked, but only for 20 hours per week. She acknowledged at hearing that she enrolled in the degree in nursing with the view of remaining and working in Australia.

8. At the time of application, the applicant was working as a salesperson in a greengrocer business in Inala. At the time of decision, she was a cashier in a grocery shop in Inala.

9. The sponsor was born in the UK on 14 February 1949, and migrated to Australia as a family member in 1969.  He is self-employed. At the time of application he had a hairdressing salon in Brisbane, and at the time of decision, a mobile hairdressing and cleaning service.

10. Each of the parties claimed never to have been in a relationship before. At hearing the sponsor acknowledged that he has in fact had relationships before, but explained that these relationships were of a different nature to the de facto relationship he claimed to be in with the applicant.

11. The parties claim they met in June 2012, at the Inala shopping centre, where the applicant was selling, and the sponsor purchasing, Asian vegetables. They claim they entered into a mutually exclusive, committed relationship, on 13 November 2013, and that the applicant moved into the sponsor’s house in April 2014. They registered their relationship on 14 November 2014.

12. The issue in the present case is whether the parties were in a genuine de facto relationship, as defined under section 5.CB of the Migration Act, at the time of application and decision.

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

    Are the parties in a de facto relationship?

14. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

15. In forming an opinion whether they are in a de facto relationship consideration must be given 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 r.1.09A(3) which is attached to this decision.

    Financial aspects of the relationship

16. Evidence was provided at the time of application that the parties had opened a joint bank account, but the statements of transactions provided, showed only a limited number of transactions, and transfers of funds. Further statements provided to the Tribunal showed more activity conducted through this joint account: at hearing the applicant confirmed that she mainly used it; that she was transferring funds into it and used it for personal, on-line shopping.

17. Statements of transactions in the parties’ joint bank account covering the period 1 July–31 December 2017 show regular deposits of $1000, some of which are titled ‘rent’. At hearing, the parties described how they each deposited $1000 a month into this account, which was used to cover the cost of rent and utilities for their shared accommodation. They stated that they each maintained their own personal (and in the case of the sponsor, business) accounts, and used cash from their own accounts to buy food and personal items.

18. The parties confirmed at hearing that they have no assets or liabilities in common. The Tribunal pointed out that the parties had claimed, in their relationship statement at the time of application, to want to purchase a house and/or farm together. The Tribunal asked the parties how far they had progressed towards this goal, in the nearly three years since the Partner visa application was lodged. The applicant acknowledged that they have no joint savings, and have made no progress towards this goal.

19. The Tribunal asked each of the parties what they knew about the financial situation of the other. The sponsor stated that he had not divulged any information about his finances to the applicant, and had never asked the applicant about hers. He stated that he saw no reason for the parties to combine their money, because he and the applicant had no children, and he did not intend to have children. He explained that in any event, he was loath to share information about his personal affairs, because of his family background: his father was in the secret service. He explained further that he has no significant savings or assets, apart from his car, because he suffered losses from his hairdressing businesses. The applicant stated that in terms of personal assets, she also has a car, which she purchased herself, and which, like the sponsor’s car, is registered in her name only.

20. The Tribunal accepts that partners at different life stages and with no children might prefer to maintain their own bank accounts. The Tribunal finds however the parties’ ignorance about each other’s financial situations to be not commensurate with their claim to be in a genuine de facto relationship.

21. The Tribunal accepts that the parties have shared the rent and electricity bills for the accommodation they share, but finds that this sharing is in the nature of a house-share arrangement. The Tribunal is not satisfied, on the evidence provided, that the parties have pooled their financial resources, and shared day-to-day expenses, commensurate with being in a genuine de facto relationship.

    Nature of the household

22. As noted, the applicant claimed she moved in with the sponsor in April 2014. At hearing, the sponsor confirmed that he rented his accommodation for over a decade prior to the applicant’s moving in, and that the lease is in his name only. He stated further that his accommodation was fully set up and furnished when the applicant moved in, so there was no need for any changes or purchases. The applicant confirmed that she has made no significant changes to the household, and that the parties have made no significant household purchases together. She claimed that she purchased some small items.

23. The parties claimed, in their relationship statement at the time of application, that they shared the housework. At hearing, the applicant advised that when they ate together at home, the sponsor did most of the cooking. One of the supporting witnesses, a friend and hairdressing colleague of the sponsor, advised that he sometimes returned home with the sponsor; shared meals with the parties; and appreciated the sponsor’s culinary skills.

24. Copies of letters sent to the applicant at the sponsor’s address were provided.

25. The Tribunal accepts that the applicant has lived in the sponsor’s house, but is of the view, as noted above, that this has been in the form of a flat-mate/house-share arrangement. The Tribunal is not satisfied, on the evidence provided, that the parties have ever established and managed a joint household, as a de facto couple.

    Social aspects of the relationship

26. The parties advised at hearing that they do not have any joint membership at any clubs or organisations. They advised that they work long hours, and do not socialise much. The sponsor advised that he works nights; that the applicant has her own friends with whom she socialised; and that on occasion he would join them.

27. Two statutory declarations provided at the time of application, by friends of the parties, declaring they knew them to be a devoted couple, and in an ‘everlasting’ relationship, were given little weight by the delegate because they were brief and deemed to be desultory. Four further statutory declarations, written by friends of the parties, were provided at time of decision. They contained more lengthy and fulsome claims, including that the parties’ love ‘will grow and grow like a fire’; ‘they can’t be seperate just a minute when they are together, they can’t live without other half’; ‘they want two kids whom will grow up in a happiness family’; ‘when they hold their hands together, they look at each other and build up their loves together, they stick together like glues’; ‘two heart, one beat between them’. The Tribunal places little weight on these declarations, because they are hyperbolic and misinformed, and for these reasons, unconvincing.  (The sponsor acknowledged at hearing that he does not intend to have children; the applicant has travelled without the sponsor; and the sponsor advised that he worked evenings and long hours, and the applicant had her own friends.)

28. No statutory declarations or written statements of support were provided by family members. The Tribunal asked the sponsor about his trips to Vietnam, as a stated relationship goal at the time of application, in June 2015, was to meet the applicant’s family. He stated that he travelled to Vietnam with the applicant in January 2017, where he met the applicant’s mother, brothers, sister, grandmother, and some nieces and nephews. He stated that he returned to Australia earlier than the applicant, from this trip, for work purposes.

29. The applicant acknowledged that she travelled several times to Vietnam without the sponsor, during the time she claimed she had been living in an exclusive, committed relationship and lived with the sponsor. She claimed that the sponsor didn’t accompany her until 2017 because he couldn’t afford the fares. She also stated that she had not advised her family that she was in a relationship, because it would not have been considered seemly for her to be living with a man outside of marriage.

30. When the Tribunal asked the parties why they didn’t marry in Vietnam, if marriage was culturally important to the applicant and her family, the applicant advised that neither she nor the sponsor could afford to pay for the ceremony and reception. The sponsor advised that he didn’t consider marriage a necessary institution, and wouldn’t have enjoyed the ceremony.

31. The Tribunal notes that the sponsor is older than the applicant’s mother. The Tribunal asked the applicant how many of her friends and family members knew that she signed a relationship certificate with the sponsor. The applicant stated that she does not have a lot of friends, but her mother and her siblings knew that she had obtained a relationship certificate.  The Tribunal accepts that the applicant has informed her immediate family that she has signed a relationship certificate, but is of the view that she would have informed them that this was for the purpose of obtaining a permanent visa. The Tribunal finds the applicant’s stated reason for not marrying the sponsor, in Vietnam, namely, that they could not afford the wedding, weak and unconvincing, for the reason that both parties have been working full-time since the time of application, and neither has any dependents.

32. Photos were provided showing the parties together sightseeing in Vietnam; with members of the applicant’s family; and dining with friends in Australia. The Tribunal accepts, from the evidence provided, that the sponsor has met family members of the applicant; that the applicant and sponsor are flat-mates and possibly good friends; and that friends of the applicant and the sponsor support the applicant’s obtaining a Partner visa and staying in Australia.

33. On the evidence provided, the Tribunal is not satisfied that the parties have represented themselves to other people as being in a genuine de facto relationship; the Tribunal is not satisfied that they plan and undertake social activities as a de facto couple; and the Tribunal is not satisfied that they are recognised and related to by family members and friends as a couple in a genuine de facto relationship.

    Nature of persons’ commitment to each other

34. In their relationship statement at the time of application, the parties claim that their relationship grew out of a friendship. They provided copies of (undated) messages to each other, comprising, mainly, information about weather and food, on greeting cards sent during the applicant’s travels.

35. The sponsor confirmed at hearing that he does not have a will, and that he has not named the applicant as a beneficiary in his superannuation account. He advised that as he has no dependents, he has not felt the need, and, further, that he had little in his super account. The applicant claimed that she considered listing the sponsor as beneficiary in her superannuation account, but had not got around to it.

36. As noted above, in their relationship statement the parties claimed that they wanted to purchase their own house, or a little farm in the country where they could be self-sufficient. Friends, in statutory declarations, declared that the parties intended to have two children. As also noted above, at the time of decision no progress had been made towards these goals, and the sponsor indicated that he does not intend to have children. For this reason, the Tribunal is of the view that these goals were fabricated for the purpose of the visa application

37. The Tribunal accepts that the applicant has lived in the sponsor’s rented house, and that the parties have provided companionship and emotional support to each other, as flat-mates and friends. The Tribunal is not satisfied, having considered the evidence and observed the parties at hearing, that the companionship and support they have provided each other has been in the context of a de facto relationship as defined in section 5CB of the Migration Act. The Tribunal is not satisfied that the parties have lived together for any length of time as a genuine de facto couple, and the Tribunal is not satisfied that they see the relationship as long-term.

    Any other relevant considerations

38. In the forms the applicant filled in and signed for the Partner visa application (form 1221 Additional personal particulars information; and form 80, Personal particulars for assessment including character assessment), in response to the questions ‘What is the general purpose of your journey/further stay’, and What is your main reason for remaining in Australia?, she stated ‘To live and work legally in Australia’; and ‘To live and work legally’. At hearing, the applicant explained that she intended to achieve her goal of living and working legally in Australia by obtaining a Partner visa, which she was entitled to because she was in a genuine de facto relationship.

39. The applicant acknowledged at hearing that since her student days, since enrolling in nursing, she has intended, and sought a pathway, to remain in this country. When asked whether she had explored other visa options, she said that she had not, but that she was thinking of going into aged care, and that if she could remain in Australia, she would provide care for the sponsor in his old age.

40. When asked what the parties planned to do should the visa be refused, the applicant claimed that she had not considered this possibility. The sponsor stated that he could not go to Vietnam as he would not be able, at his age, to obtain work there, and he couldn’t afford to retire. He confirmed that he would remain in Australia, if the applicant returned to Vietnam.

41. Witnesses, in statutory declarations and at hearing, testified that the applicant is a gentle, kind person; that the sponsor is also a caring and moral person; and that they are both lovely people. The Tribunal accepts that the applicant and the sponsor are lovely people, and accepts that the applicant has friends in Australia who support her remaining in this country.

42. Having considered the evidence and the circumstances of the parties, and observed them together, and with their supporting witnesses, at hearing, the Tribunal is of the view that the sponsor has entered into a contrived relationship with the applicant, possibly as an act of friendship, to assist her to obtain a migration outcome.

43. Having considered all the circumstances of the relationship, including r.1.09A(3) matters, the Tribunal does not find that the parties have a mutual commitment to shared life to the exclusion of others, and does not find that they are in a genuine and continuing spousal or de facto relationship.

44. On the basis of the above, the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time the visa application was made or the time of this decision.

45. Therefore the applicant does not meet cl.820.211(2)(a) or cl.820.221.

46. Alternative criteria in c.820.211(7), 820.211(8), 820.211(9), 820.221(2), 820.221(3) (death, family violence, child exceptions) are not relevant to the circumstances of the applicant, and she has made no claims against these criteria.

47. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

48. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Adrienne Millbank
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

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

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).