Manassa (Migration)

[2022] AATA 4240

Manassa (Migration) [2022] AATA 4240 (6 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Melad Manassa

VISA APPLICANTS:  Ms Kwok Hing Li
Ms Ka Ching Ma

REPRESENTATIVE:  Ms Amy Lee (MARN: 0215803)

CASE NUMBER:  1911030

DIBP REFERENCE(S):  OSF2017/020016 OSF2017/020016

MEMBER:Linda Holub

DATE:6 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211(2) of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 06 October 2022 at 10:29am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – companionship and emotional support to the sponsor – sponsor’s medical condition – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– decision under review remitted 

LEGISLATION
Migration Act 1958, ss 5F,65
Migration Regulations 1994, r 1.15A, Schedule 2, cls 309.211, 309.221

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 26 March 2019 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 visa applicant) applied for the visa on 6 September 2017 on the basis of her relationship with their sponsor, the review applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.21 (2) and cl.309.221 because the delegate:

   a.found the applicant provided insufficient evidence to demonstrate that she and her sponsor genuinely represent themselves to other people as being a married couple in a committed spousal relationship.

   b.found there was an overall lack of convincing evidence showing that they had taken any steps to combine their lives and to take steps demonstrating a real commitment to each other beyond the act of marriage itself.

   c.gave significant weight to the applicant’s previous immigration history, her credibility, and the refusal of her previous subclass UK 820 (Temporary) partner visa application in 2014 and to the brevity of the relationship between the visa applicant and the sponsor prior to the marriage.

   d.expressed concern the applicant provided conflicting information about all areas of her life and throughout her travel and stay in Australia and as a result of the contradictory information the delegate was not satisfied that she is credible.

   e.was not satisfied that she entered into the relationship with the sponsor for genuine reasons and is committed to an ongoing relationship with the sponsor, but rather that she is committed to a migration outcome to Australia.

4. For those reasons having regard to all the circumstances of her relationship, and on the basis of the evidence provided, the delegate was not satisfied that the visa applicant and her sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others and, that the relationship between them is genuine and continuing.

5. The review applicant appeared before the Tribunal on 27 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s brother.

6. The review applicant was represented in relation to the review.

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

BACKROUND

1. The sponsor was born in Lebanon in January 1953 and was conferred citizenship on 19 October 1974. He provided a copy of an Australian passport. The sponsor has not declared any previous relationships, marriages, or children. At the time of application his mother, two brothers and two sisters are all citizens and resided in Australia. His father is deceased.

2. The primary visa applicant was born in Chongqing, China in August 1969 and now holds a Hong Kong Special Administrative Region passport. She has two younger brothers and her widowed father living in China.

3. This is the primary visa applicant’s second attempt applying for a Partner visa. She was previously sponsored by her second husband (see below), but her application was refused on 27 November 2014.

4. The primary visa applicant has been married twice before her current husband and had a former de facto relationship with the father of her daughter. Her relationship history is as follows:

   a.her first husband was Yiu Kwong Lau to whom she was married from May 1994 until August 2004. This relationship ended following Mr Lau’s imprisonment in China in approximately 1995, but the divorce was not finalised until 2004.

   b.she was then in a relationship with Wing Chuen Ma from 1998 until 2000/2001. Although they never married, he is the father of her daughter. She has stated that she has since lost all contact with Mr Ma.

   c.she was later married to her second husband The Hai Trinh from April 2012 to August 2016. According to the primary visa applicant, this relationship became violent in 2014 and her divorce was finalised in 2016.

5. Copies of divorce certificate from her previous marriages were provided to the Department.

6. The primary visa applicant’s daughter, Ka Ching Ma is the secondary visa applicant. She was born in February 2000.

Relevant law

Whether the parties are in a spouse or de facto relationship

1. 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.

2. Clause 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 an Australian citizen.

3. ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. At the time of application, the applicant provided the department with a copy of the Certificate of Marriage showing that she and her sponsor married on 2 July 2010 in Hong Kong. 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?

CONSIDERATION OF CLAIMS AND EVIDENCE

Nature of persons' commitment

1. In a relationship statement dated 22 August 2017, the sponsor wrote that in early 2014 he and the primary visa applicant met while grocery shopping in Canterbury. In about May or June of that year, he saw that she was upset, and he asked her what was wrong. The primary visa applicant expressed that she was struggling as a single mother and survivor of domestic violence and the sponsor offered support. He assisted in finding a school for her daughter and with helping her obtain evidence proving the domestic violence perpetrated by her previous husband.

2. It was submitted that in May 2016 the primary visa applicant and her daughter returned to Hong Kong. The sponsor missed her presence after she departed, and the parties maintained daily correspondence using the WeChat application.

3. In July 2016 the sponsor went to stay with the primary visa applicant for a month. During that time the parties together with her daughter stayed at a rented "apartment motel" that had two bedrooms, two bathrooms and a living room.

4. The review applicant expressed feelings for the primary visa applicant before she departed Australia for Hong Kong and a romantic relationship commenced upon his arrival. When he was departing from Hong Kong, the sponsor did not intend to marry the primary visa applicant and only desired a boyfriend-girlfriend relationship. It was submitted the sponsor regularly sent money to the primary visa applicant in Hong Kong.

5. According to information submitted, the parties found that they were feeling depressed with no certainty about the future and in April 2017 the sponsor told the primary visa applicant he was ready to commit to her forever. The parties married in Hong Kong on 2 July 2017.

6. At hearing the parties gave consistent evidence regarding their first meeting and the way in which their relationship developed. When questioned further regarding the fact that the circumstances appeared slightly unusual having met in a supermarket following which the review applicant assisted her with some difficulties she was dealing with, they were able to satisfy the Tribunal on this point.

7. The Tribunal notes the delegate’s concerns as expressed in the Department’s Decision Record regarding the language differences between the parties. The Tribunal asked the parties during the course of the hearing to have a discussion between each other about ‘everyday matters’ to reassure itself regarding their ability to communicate together. In addition, the Tribunal discussed this issue with the review applicant’s brother. He told the Tribunal that he and his brother speak English to each other and that he has witnessed the review applicant help the visa applicant with her English. He stated that other family members also try to assist her. The Tribunal recognises the visa applicant has limited English and that the review applicant does not speak Chinese or Mandarin. Nevertheless, based on the overall evidence the Tribunal was satisfied that the parties are able to communicate sufficiently well.

8. The parties gave consistent and open evidence regarding various aspects of the visa applicant’s past and the reasons why she first came to Australia in 2010. While the Tribunal acknowledges that there are some inconsistencies between the part of the evidence provided at hearing with the information provided to the Department, in the light of the discussion regarding the visa applicant’s past, the Tribunal understands that she may not have wanted to be fully open about some aspects of her history. This in no way excuses the visa applicant’s previous behaviour in relation to the information she provided the Departmen.

9. The Tribunal probed the visa applicant regarding her previous marriage and the fact that she was uncertain as to how to pronounce her previous husband’s name. The Tribunal explained that this was not an insignificant matter and that it raised concerns in regard to whether that marriage was a sham one. Furthermore, the Tribunal also expressed concerns whether the relationship with her current sponsor was also purely for a particular favourable migration outcome. Following a difficult discussion on this matter, the visa applicant stated that she did not marry the sponsor for the sole purpose of obtaining a visa. She stated that their relationship developed after she went through a difficult time, and they grew to love each other. She stated that she married her husband to be with him and she is happy to help him care for his brother who has Parkinson’s disease.

10. The parties provided extensive evidence showing their WeChat communication history. It substantiates their consistent oral evidence that they speak to each other twice a day – late morning and each evening.

11. In relation to the companionship and emotional support they provide each other, the review applicant had some difficulty understanding the nature of the question, despite the Tribunal trying to explain to him in a number of ways. He stated that when the visa applicant is in Hong Kong, they miss each other. He stated that they mostly speak on video calls and that it is far more meaningful for him when they can see each other. He stated that he knows immediately how she is feeling and if anything is wrong. He stated that he reassures her that they will be together despite the length of time the visa process is taking. He stated he tells her to take it easy.

12. The visa applicant was able to provide more specific examples of emotional support she provides to the review applicant and referred to his concerns about his brother’s health condition and on occasions when he has gone to hospital, she has tried to reassure him. In relation to the emotional support that he provides her, she stated that her daughter trusts him. She stated that her daughter is rebellious, possibly because she left her for a number of years. She stated that the review applicant is able to talk to both of them and helps resolve some conflict between her and her daughter.

13. The Tribunal heard consistent plans for their future.

14. While the Tribunal had some concerns regarding the visa applicant’s past migration history and previous marriage, the Tribunal notes that the relationship between the parties commenced in 2014 based on evidence provided; that they have both travelled to spend time together since 2016 when the visa applicant returned to live in Hong Kong. While the review applicant did not provide insightful responses regarding the degree of companionship and emotional support that they draw from each other, overall, the Tribunal accepts that their twice daily conversations over an extended period indicate that the review applicant receives some companionship from their video calls. The visa applicant’s responses on this issue were more helpful. The Tribunal notes that their plans for the future were very straightforward but given the age of the review applicant the Tribunal accepts it indicates the parties see the relationship as a long‑term one. The Tribunal is prepared to accept that overall, they have a mutual commitment to each other.

Financial aspects of the relationship

1. The applicant provided the Department with receipts of remittances from the sponsor to the applicant. The evidence provided demonstrates that the review applicant has consistently been sending the visa applicant funds since she returned to Hong Kong in 2016. Generally, each fortnightly a remittance is for approximately $HK7, 000 although some large payments were also made at various times. The review applicant told the Tribunal that in so far as he is concerned once he committed to marrying the visa applicant, he considers that he is financially responsible for her. He stated he does not want her to work and is happy to provide for her.

2. The Tribunal was provided with a number of bank related documents including:

   a.advice of new accounts/services referring to both parties dated 3 April 2019.

   b.a joint St George Bank – account Transaction listing of the parties’ transactions between 7 January and 13 February 2020 showing ten transactions one and for the same account for the period 7 January and 21 June 2022 and all appear to be undertaken in Hong Kong.

3. At hearing the parties gave consistent evidence regarding:

   a.review applicant’s employment and salary.

   b.that he transfers about half of his salary to the joint bank account which the visa applicant uses in Hong Kong.

   c.the amount in total the review applicant has sent to the visa applicant.

d.that the joint Bank of China (Hong Kong) bank account is no longer used by either party. It was set up, in part, to satisfy perceptions about the Partner visa requirements, and in part for the review applicant to use when he travelled to Hong Kong. However, he has not been able to travel to Hong Kong since 2019.

e.the joint Westpac bank account is mainly used by the visa applicant. The review applicant told the Tribunal he prefers to use cash whenever possible. He stated that once they set up this account it meant he no longer needed to transfer funds to the visa applicant as she could just withdraw from the bank account in Hong Kong and use it for all her daily expenses.

f.if the visa applicant is granted a visa, the intention is that she sell her apartment in Hong Kong and that they buy a small apartment in Australia in joint names which they will rent (and continue to live in the home owned by the review applicant and his brother).

1. The Tribunal notes that the parties do not own any joint assets, nor do they have any joint liabilities. The Tribunal has had regard to the review applicant’s stated preference that the visa applicant does not work and that as his wife he wants to support her. As the visa applicant does not have an income source, they do not pool their financial resources, nor do they share day-to-day household expenses. The Tribunal puts some weight on the fact that both the review and visa applicants outlined in a consistent manner the extent of the review applicant’s support of the visa applicant. The Tribunal is prepared to accept on the basis of the consistent evidence that the proceeds of the visa applicant’s property in Hong Kong will be invested in joint names in a property in Australia.

2. Overall, the Tribunal acknowledges that the evidence in relation to the financial aspects of the relationship is not strong but for the remittances sent by the review applicant to the visa applicant and her use of the joint Westpac bank account since it was opened. The evidence provided by the parties was consistent, but the Tribunal is mindful of the fact that such evidence can be rehearsed by witnesses prior to hearing. However, the Tribunal has taken the view that the evidence was provided in an open manner. In addition, the Tribunal has regard to the age of the review applicant and that the concept of fully providing financially for a spouse may meet with the couple’s norms. The Tribunal has also had regard to the history of the visa applicant as outlined by the review applicant at hearing. For these reasons, at this stage of the Partner visa process, the Tribunal is prepared to accept the financial aspects of the relationship is sufficient to support a finding that the parties are in a genuine and committed relationship.

Nature of the household

1. The parties provided evidence of the sponsor’s travel to Hong Kong:

   a.from 17 July until 14 August 2016.

   b.from 25 June until 31 July 2017.

   c.from 28 December 2017 until 28 January 2018.

   d.from 17 March until 30 April 2019

2. The primary visa applicant was in Australia:

   a.from 15 December 2019 until 12 January 2020

   b.from 25 March and 15 June 2022 and she was in Australia at the time of hearing

3. At hearing the Tribunal focussed its discussion on the most recent periods of time the parties have spent together. They provided consistent oral evidence in relation to their daily routines, the sharing of housework and their living arrangements.

1. The Tribunal accepts the evidence as to the nature of the parties’ household is consistent with the relationship claimed.

Social aspects of the relationship

1. The applicant provided the Department with a number of wedding and social photos. The Tribunal was provided with extensive further photographic evidence of the parties together and a large number from various trips around New South Wales the parties undertook together during her period of stay between March and June 2022. Both parties told the Tribunal that the review applicant made suggestions of where they should visit in the light of the fact that the visa applicant had not previously seen much of the country. Many of the photographs show the parties together with various family members of the review applicant and his friends. The photographs are annotated dated.

2. In addition to relationship statements provided by the parties, the applicant provided the Department with:

   a.A Statutory Declaration (Form 888) dated 16 August 2017 from the sponsor’s brother, Raymond. In it he wrote that he first met the visa applicant between October and November 2014 and then again at the family’s Christmas party that year with her daughter. He wrote that because he and the sponsor live together, he knows that the sponsor travelled to Hong Kong to visit the primary visa applicant in 2016 and 2017. He stated that he would often see the sponsor video chatting with the primary visa applicant at home. He also referred to the chemistry between them and that the sponsor sent her money on many occasions to support her.

   b.A Statutory Declaration (Form 888) dated 10 August 2017 from the sponsor’s brother, Simon. The declarant wrote that he first met the visa applicant and her daughter at a family Christmas party in 2014. He stated that he travelled to Hong Kong with his brother at the end of June 2017 and stayed there for a week to visit the visa applicant and to be a witness at their wedding. He declared that his brother told him that the relationship commenced in July 2016 when he visited Hong Kong. He stated he was aware that the sponsor provided assistance to the primary visa applicant while she was in Australia. He referred to the affection he saw the parties display to each other. He stated that he is aware that his brother often sends money to the visa applicant and that he treats her daughter as his own. He also stated that the is very loving towards his brother.

3. The Tribunal heard consistent evidence from the parties and the witness regarding when the visa applicant met the review applicant’s brothers. Additionally, consistent evidence was provided regarding the review applicant’s usual social activities and the visa applicant’s involvement in them (mainly visiting family and friends) during her time in Australia while staying with the review applicant.

4. The Tribunal was concerned that the visa applicant could not recall the names of the review applicant’s closest friends, particularly in the light of the fact that he referred to having only three or four close friends and that the visa applicant has met them. She claimed that she was not good with names and that she was nervous.

Evidence provided by the witness

1. Prior to the hearing the review applicant notified the Tribunal that he wished the Tribunal take oral evidence from both of his brothers. However, at the commencement of the hearing, the Tribunal received a statement from one of his brothers, who has Parkinson’s Disease that he was unable to attend the hearing because of his health on that day. The review applicant told the Tribunal that, if necessary, the Tribunal could call him by telephone. The Tribunal decided following the totality of the oral evidence provided, that it was not necessary to take further evidence from the review applicant’s brother Raymond.

2. The review applicant brother (Simon) told the Tribunal that he does not interfere with his brother’s life. In relation to when he first understood that his brother was in a relationship, he stated that in 2014 he noticed that the review applicant seemed to be happier than usual. He stated that sometime later the review applicant told him that he needs his help to move house for someone he cares for. He stated that was the first and only time he met the visa applicant in Australia. Later the review applicant told him that he had decided to marry her. He stated that his brother asked him to travel with him to Hong Kong as his witness. He stated that at that time he did not immediately agree because he was busy with his own life, his family and grandchildren but later agreed to go to Hong Kong.

3. The witness stated he is aware that the visa applicant travelled to Australia on a number of occasions and that his brother travelled to Hong Kong each year.

4. The witness stated that he does not see his brother often, but they do get together from time to time. He stated that he has observed that the parties care for each other. He stated they never go out without each other; they always walk hand in hand. He stated that he has observed that when he visits the review applicant, he can see that the visa applicant fusses over his brother.

5. As noted already the Tribunal discussed with the witness the visa applicant’s English language skills and the communication between the parties.

6. When asked if he wanted to add anything further, he stated that in his view, and what he knows of his brother, he would not go to such extreme lengths unless he loved the visa applicant. He commented that it is not cheap to travel backwards and forwards from Hong Kong. He stated he does not know what the applicant must do to prove that she is genuinely committed to his brother especially in the light of the fact she is not a citizen and does not reside in Australia. He added that when he is around them, they project affection and respect to each other.

7. The Tribunal is satisfied that the parties represent themselves to other people as being married to each other and that they plan and undertake joint social activities when they are together which is indicative of a genuine and committed relationship.

Overall assessment

1. The Tribunal has had regard to the delegate’s concerns at the time of the decision but notes that extensive further information has been made available to the Tribunal and the consistent oral evidence was presented by the parties and witness. The Tribunal nevertheless had some residual concerns of the limited evidence regarding the financial aspects of the relationship, the fact that the visa applicant could not recall the names of the review applicant’s closest friends and that the visa applicant has limited English language skills. In this context, the Tribunal observes that the partner migration stream involves a two-stage process before a permanent visa is granted and there will be a further assessment of the relationship at the permanent visa stage. Should any adverse evidence relevant to the genuineness and/or exclusivity of the relationship become available it can be considered at that time.

2. On the basis of the above the Tribunal finds that at the time of application and at the time of decision, the parties were not living separately and apart on a permanent basis and that they saw their future as a long-term one. The Tribunal is also satisfied that at time of application and time of decision that the parties continue to have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship is genuine and continuing. The Tribunal is therefore satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision].

3. Therefore, the primary visa applicant meets cl.309.211(2) and cl.309.221.

4. 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 309 visa.

Secondary applicant

1. As the delegate found that the primary applicant did not meet the legislative requirements specified in clause 309.211(2), the secondary applicant was unable to satisfy clause 309.321 (a).

2. The Tribunal therefore finds that the secondary applicant’s application should be considered in the context of the delegate’s decision regarding the primary applicant satisfying the remaining criteria for a Subclass 309 visa decision.

decision

1. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211 (2) of Schedule 2 to the Regulations

   ·cl.309.221 of Schedule 2 to the Regulations.

Linda Holub
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).