Renfrey (Migration)

[2019] AATA 2736

Renfrey (Migration) [2019] AATA 2736 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mark Graeme Renfrey

VISA APPLICANTS:  Ms Yan Zhao
Mr Zhishen Zhou

CASE NUMBER:  1729339

DIBP REFERENCE(S):  BCC2016/1853848

MEMBER:  Mark O'Loughlin

DATE:24 May 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 24 May 2019 at 12:11pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – significant emotional support drawn by sponsor – sponsor saw the relationship as long term – largely one sided – unsubstantiated allegations involving sex trade or sex trafficking – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221, 309.321

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 Immigration on 13 November 2017 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 26 May 2016 on the basis of her relationship with the sponsor, the review applicant. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 (2) because the delegate was not satisfied that the visa applicant was the sponsor’s spouse as defined in the Act.

4. The review applicant appeared before the Tribunal on 23 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Ms Yan Zhao by telephone and from Mr Anthony Renfrey the review applicant’s father.

5. The review applicant was represented in relation to the review by his registered migration agent Mr Hang Chen.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant was the spouse of the review applicant for the purposes of the definition or “spouse” in the act at the time the visa application was made.

   Whether the parties were in a spouse or de facto relationship at the time the visa application was made

8. 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.

9. ‘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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There are documents on file purporting to be a copy of a certificate of marriage between the parties, a notarial certificate certifying the certificate of marriage and translations of both.  Further, the parties both gave evidence that they are married.  The visa applicant has also provided documents to show that a previous marriage in China ended in divorce on December 11 2009 and a previous marriage in Australia was terminated on 4^th October 2015.

11. On the evidence, the Tribunal finds 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 spouse relationship met?

12. The review applicant, Mr Mark Renfrey, is a former member of the Australian Air Force who got a medical discharge in November 2005.

13. During his time in the Air Force he developed suffered from arthritis in his hands, shoulders and knees and also suffered a knee injury, and Post Traumatic Stress Disorder.

14. He received a medical discharge from the Air Force in November 2005 and was awarded a pension which he told the Tribunal amounts to about $2,000.00 per fortnight.

15. The delegate’s decision, which the review applicant provided to the Tribunal for the purpose of this review, includes the following summary of the visa applicant’s migration history:

    “Departmental records show that the main applicant was granted a Visitor visa on 6 December 2013 and she entered Australia on 13 December 2013. She then made an application for an on-shore  Partner visa on 10 February 2014 which was sponsored by her ex-husband Steven Robert GOUGH. The Partner visa was refused on 22 December 2014.  The main applicant’s Visitor visa ceased on 13 March 2014 and she was granted a Bridging A visa between February 2014 and February 2015, but remained in Australia unlawfully until August 2015 before being located at a brothel and detained.  She made an application for a Bridging E visa which was refused on 4 September, and the main applicant was removed from Australia on 15 September 2015.

16. The parties gave evidence that they were introduced by a mutual friend in April of 2015.

17. Mr Renfrey said that he was introduced to the visa applicant by Amy, another masseuse who was also from China and who knew Mary, the Chinese woman with whom the visa applicant lived and for whom she worked.

18. Mr Renfrey said that the visa applicant’s English was limited at this time but that Mary and Amy were able to help them communicate.  Mr Renfrey only speaks English and told the Tribunal that he is not skilled with languages.

19. Mr Renfrey gave evidence that he had been single since about 2006, having had a bad experience which caused him to avoid further relationships for a time.  He said that Amy introduced him to the visa applicant because she though they might make a couple.

20. Mr Renfrey told the Tribunal that he knew that she was in the process of getting a divorce when he met the visa applicant but that he did not know that she was unlawfully in Australia.

21. He understood that she was working as a masseuse although he does not believe that she has any qualifications in massage.  He did not know how much she earned from giving massages.

22. Mr Renfrey told the Tribunal that he and the visa applicant seemed to get along well and that he took her out for a meal a couple of weeks later.  He said that they went to Chinatown and that they took Mary and Amy with them to help translate.

23. He also said that he has occasional periods of reluctance to leave the house due to depression associated with his Post Traumatic Stress Disorder so they did not see each other as often as they may otherwise have, but he saw her again in early May 2015 and again a week or two after that.

24. Mr Renfrey advised that the fourth meeting was a weekend at his home in June.  He said that there were some restrictions in their ability to communicate but that overall that went well.

25. Mr Renfrey said that the fifth meeting was another stay at his home and that he believes they may have had dinner with Amy and Mary once more as well, making five or six meetings in total.

26. The visa applicant was taken into detention on the 19^th August.  Mr Renfrey visited her in detention once when it was agreed that after she returned to China he would follow her and they would get married

27. According to the delegate’s decision the visa applicant was deported on the 15^th of September and the evidence given by the parties is not inconsistent with that.

28. The visa applicant’s divorce from Steven Gough was finalised in early October and the visa applicant said that she received the paperwork after she had returned to China. The Tribunal accepts the visa applicant’s evidence about this.

29. Mr Renfrey told the Tribunal that he went to China to meet the visa applicant, taking Amy to help with translation.  He was there from the 16^th to the 25^th of November.  They were married on the 20^th November 2015.

30. Mr Renfrey returned to Australia.  He has since visited the visa applicant in China several times.

31. The first was within 90 days of the wedding to comply with local laws requiring the registration of the marriage within that time.  The applicant stayed from February to early March 2016.

32. The subject visa application was made on the 26^th of May 2016.

33. The parties gave evidence, which the Tribunal accepts, that Mr Renfrey returned to China in September to October 2016 then again in March to May 2018 and July to October 2018. The parties have spent about 7 ½  months together since their marriage, about 5 ½ months of which time has been spent living together in rented accommodation.

34. Mr Renfrey gave evidence that he and the visa applicant spent those visits together and that he was able to meet some of her family, particularly on her mother’s side.

35. The Tribunal generally accepts Mr Renfrey’s evidence.

36. Since the hearing the Tribunal has been advised that Mr Renfrey returned to China to visit the visa applicant once more, that trip lasting from 25 April to 7 June 2019.  Mr Renfrey advises that the purpose of that trip is to visit the visa applicant.

37. Financial Aspects of the Relationship  Including;

38. Joint Ownership of Real Estate or Other Major Assets.

39. There is no evidence of joint ownership of any major assets. The Tribunal finds that the parties do not and never have owned real estate or other major assets jointly. This consideration tends to count against the granting of the application. Given that the parties generally live in different countries it is not surprising that they do not own major assets jointly so the Tribunal accords this factor little weight.

40. Joint Liabilities.

41. There is no evidence of joint liabilities other than the short term lease agreements that the parties entered into during two of the sponsor’s visits to China.  The parties gave evidence which the Tribunal accepts that the rent payments were largely borne by Mr Renfrey with a modest contribution by the visa applicant.  The earliest of these leases commenced in March 2018 nearly 2 years after the application was made.

42. The Tribunal finds that at the time of the application the parties had no joint liabilities.

    The Extent of Pooling of Financial Resources Especially Major Financial Commitments.

43. Mr Renfrey gave evidence that he has sent money to the visa applicant from time to time.  He said that he makes irregular payments of about $500.00 per time.  He said that he does not generally need to send her money if she is working although she did need about a thousand dollars for some surgery last year, which he sent her. The Tribunal accepts his evidence about these matters,

44. Mr Renfrey also gave evidence that when has visited the visa applicant in China he has met  most of their expenses because she takes time off work.  He said that on the last occasion she did make some contribution to living expenses. The Tribunal accepts his evidence about this.

45. There is evidence of Mr Renfrey bearing some of the visa applicant’s living costs.  The Tribunal understands that the visa applicant’s earnings are not great.  The Tribunal has heard and accepts that the visa applicant has worked in Bejing as a nanny from time to time since her return to China.

46. There is evidence that Mr Renfrey has provided financial support for the visa applicant from the time of the application until now but little evidence of contribution to joint finances by the visa applicant.  The only evidence that she has contributed is the testimony of the parties that she made some unquantified contribution during Mr Renfrey’s most recent visit. The Tribunal finds that the extent of pooling of financial resources at the time of the application was so limited in its extent that this factor does not carry any weight in favour of this application.

47. Whether One Person in the Relationship Owes Any Legal Obligation in Respect of the Other.

48. There is no evidence of any legal obligation owed by either party to the other at the time of application.  The Tribunal finds that this consideration counts against the granting of the application but accords it only limited weight.

49. .The Basis of Any Sharing of Day to Day Household Expenses

50. The Tribunal finds that at the time of the application there had been some sharing of day to day household expenses in that Mr Renfrey had met such expenses when he visited the applicant in China. Such sharing of day to day expenses was limited and the Tribunal accords it limited weight in favour of the application.

51. The Nature of the Household  Including;

52. Any Joint Responsibility for the Care and Support of Children.

53. The parties do not have responsibility for the care or support of any children.  Mr Renfrey does not have any children.  The visa applicant has a son, Zhishen Zhao, who is also a party to this visa application (“the secondary visa applicant”).  The secondary visa applicant was born on the 14^th of May 1997 and was 18 years old at the time of the application.  He is now 21.

54. The Tribunal finds that at the time of the application there was no joint responsibility for the care and support of children and so this consideration does not count in favour of the application.

55. The visa applicant gave evidence that during Mr Renfrey’s visits to China, including before the application, they would share housework.  These visits were of a limited duration so the Tribunal accords them only slight weight in favour of the application.

56. The Social Aspects of the Relationship Including;

57. Whether the Persons Represent Themselves to Other People as Being Married To Each Other

58. The Tribunal has had regard to a form 888 statement from Lu Huang, who the Tribunal understands to be the masseuse otherwise known as “Amy” who introduced Mr Renfrey to the visa applicant. 

59. There is also a form 888 statement from Yumei Wang, the masseuse otherwise known as “Mary” with whom the visa applicant was living when she met Mr Renfrey.

60. Both statements were given on the 6^th of May 2016 and both refer to the parties’ marriage as having occurred.

61. The Tribunal also had the benefit of evidence from Mr Renfrey’s father, Mr Anthony Renfrey.  He had not met the visa applicant and did not learn of her existence until his son returned from the visit to China in November 2015 when they were married.

62. He said that he and his wife, Mr Renfrey’s mother, were surprised to hear about their son’s marriage but they were pleased. 

63. He said that he has since spoken to the visa applicant 3 or 4 times on the telephone.  He said that he believes that her parents originally had reservations about his son but that they seem to have resolved.

64. Mr Anthony Renfrey’s evidence demonstrates that, at the time of the application, his son had informed his family about his marriage.

65. The Tribunal finds that there is some evidence that, at the time of the application, the parties represented themselves to other people as being married to each other, and accords that some weight.

66. The Opinion of the Persons’ Friends and Acquaintances About the Nature of the Relationship

67. There is limited evidence from friends and acquaintances about the nature of the relationship between the parties.  On the basis of the form 888 statements referred to above the Tribunal finds that there is some evidence that at the time of the application friends and acquaintances of the parties saw them as being in a relationship with some or all of the characteristics of a married relationship as defined in the Act.

68. The Tribunal finds that although there is some evidence in support of this factor, the evidence is limited and the Tribunal accords this consideration little weight in favour of the application.

69. Any Basis on Which the Persons Plan and Undertake Joint Social Activities

70. The evidence suggests that at the time of the application there had been limited opportunity for the parties to plan and undertake social activites.  The basis for the limited activities that the parties undertook to the time of application was that, in Australia they were in the company of a friend to translate and in China they were generally with the applicant’s family.

71. The Tribunal accords this some weight.

72. The Nature of the Persons’ Commitment to Each Other Including

73. The Duration of the Relationship

74. Mr Renfrey gave evidence that the visa applicant was in the process of finalising a divorce when he first met her and that, although he wanted to pursue a relationship with her there was no point in doing so until that divorce was granted.  He said that when the visa applicant was taken into detention in August 2015 the matter became more pressing.

75. The Tribunal finds that a commitment was made at that time and that therefore, at the time of the application in late May 2016 the relationship had lasted about 7 months.  The Tribunal finds that this consideration weighs in favour of the application but only to a limited degree.

76. The Length of Time During Which the Persons Have Lived Together

77. The Tribunal finds that the parties had spent time together on holidays at the time of the application but that they had not lived together as a household.  The Tribunal gives this consideration little weight. 

78. The Degree of Companionship and Emotional Support that the Persons Draw From Each Other

79. Mr Renfrey gave evidence that the parties communicate with each other using electronic means when he is not in China.  In the time that they did spend together before their marriage the parties both said that they had the opportunity to enjoy each other’s company.  Mr Renfrey’s evidence made it clear that he has drawn significant emotional support from the visa applicant since their marriage (and therefore at the time of the application). 

80. In relation to companionship and emotional support that the visa applicant draws from Mr Renfrey, there is some evidence of electronic communications between the parties and there was evidence from both parties about the time that they spent together before the visa applicant was taken into detention and during Mr Renfrey’s visits to China. That evidence suggests that the visa applicant drew some companionship from Mr Renfrey at those times.

81. There is no significant evidence of emotional support drawn by the visa applicant from Mr Renfrey at the time of the application.

82. The Tribunal finds that the companionship and emotional support drawn by the parties in this matter at the time of the application was largely one sided and for this reason accords this consideration limited weight.

83. Whether the Persons See the Relationship as a Long Term One

84. The Tribunal accepts Mr Renfrey’s testimony that at the time of the application he saw the relationship as a long term one.  The Tribunal is not satisfied that the visa applicant also saw the relationship as a long term one at that time. The Tribunal does not accord this consideration significant weight in favour of granting the application.

1. Other Matters 

2. Documents on the departmental file suggested that there had been allegations that the visa applicant had been involved in the sex trade or in sex trafficking.

3. Those allegations were put to the review applicant for comment on the basis that if the Tribunal relies on them they may form the reason or part of the reason for affirming the delegate’s decision.

4. The review applicant responded through his representative denying that his wife had been a party to either the sex trade or sex trafficking.

5. There is no evidence supporting the allegations.  The allegations are denied.  The Tribunal places no weight on the allegations that the visa applicant has been involved in the sex trade or in sex trafficking.

6. The Tribunal has considered all of the aspects of the relationship and is not satisfied that at the time of the application the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others or that the relationship was genuine and continuing.

7. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made.

8. The visa applicant was married to the review applicant at the time of application in this matter and so cl 309.211 (3) relating to intention to marry does not apply.

9. Therefore the visa applicant does not meet cl.309.211.

10. For the secondary visa applicant’s application to succeed he must satisfy the requirements of cl 309.321 at the time of this decision.   As the visa applicant’s application has not been successful, the secondary applicant cannot satisfy the requirements of cl309.321.  

11. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa for which she applied and the secondary visa applicant does not satisfy the criteria for the grant of the visa for which he applied.

    DECISION

12. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Mark O'Loughlin
    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).