Shen (Migration)

[2020] AATA 2196

Shen (Migration) [2020] AATA 2196 (23 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Fengqin Shen
Mr Zhenglong Kang

CASE NUMBER:  1717976

DIBP REFERENCE(S):  BCC2015/2059037 CLF2016/14710

MEMBER:Stephen Witts

DATE:23 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221 of Schedule 2 to the Regulations

Statement made on 23 January 2020 at 2:32pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship – nature of commitment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65, 375A, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 801.221

CASE

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 28 July 2017 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 18 June 2013 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 applicant did not satisfy cl.801.221 because the delegate was not satisfied that the applicant had demonstrated that she is in a genuine and continuing relationship with the sponsor and that they are committed to a shared life together.

4. The applicants appeared before the Tribunal on 23 January 2020 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the sponsor, Mr Jian Ping Shi, and from the applicant’s stepdaughter, Yi Hui Shi, and Lian Ping Zhu, a friend of the applicant.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the spouse or de facto partner of the sponsor for the purposes of the Act.

   SPOUSE/DEFACTO (cl.801.221(2))

   Whether the parties are in a spouse or de facto relationship

10. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian permanent resident and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

11. ‘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 sponsor’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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

13. The applicant and the sponsor have provided a marriage certificate indicating that they were married on 2 May 2013 in Richmond Victoria (AAT file folio 243)

14. 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?

15. According to the delegate’s decision record dated 28 July 2017, provided to the Tribunal by the applicant, the main applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa on 18 June 2013, on the grounds of being in a spousal relationship with an Australian permanent resident Mr Jian Ping Shi (sponsor), who lodged a sponsorship in support of this application. The applicants were subsequently granted a subclass 820 visa on 12 August 2013.

16. On 28 July 2017 the delegate refused this application in accordance with clause 801.221.

17. In particular, the delegate maintained that the applicants and the sponsor were not in a genuine and continuing relationship living together, that they did not intend to build a long-term relationship with each other and that the relationship is not socially recognised by family and friends. The delegate also stated that the marriage to the sponsor is in fact a marriage of convenience with the sole purpose of helping the applicants to obtain permanent residency in Australia. On that basis the delegate was not satisfied that the main applicant is a spouse or de facto partner of the sponsor.

18. The Tribunal has considered all the evidence provided at the hearing by the applicant, the sponsor, and nominated witnesses, and has also considered all the evidence provided in the delegate’s file and in AAT file.

19. It is noted by the Tribunal that there is a nondisclosure certificate in the delegate’s file under s.375A of the Act which indicates that some folios in this file contain methods of departmental procedures the release of which could hamper lawful investigation methods in order to apply migration law. The Tribunal reviewed this with the main applicant in accordance with s. 359AA informing the applicant that the Tribunal viewed this information as potentially adverse. The Tribunal noted that this issue was canvassed in the delegate’s original decision. The Tribunal asked the main applicant if she wished for some additional time prior to having a discussion with the Tribunal.

20. The applicant stated that she did not need any more time to consider this matter.

21. As stated above the Tribunal has considered the evidence provided in the AAT file. In particular, the Tribunal has considered the following information provided: letters from a casino dated September 2013, gift receipts with various dates, marriage certificate information as noted above, vehicle registration material from 2018 and 2019, bank account information from 2017 in the main applicant’s name, goods receipts with various dates applicable to a fish shop in Ashburton including information about the receipt of goods from this fish shop and related information, material from a Buddhist society including small donations, a submission from the main applicant’s migration agent dated 11 November 2019, utility accounts, car rental information, flight information, other travel information, a lease agreement dated 27 March 2019 for a dwelling, further bank account information in the main applicant’s name from 2013 and 2014, a traffic infringement notice regarding the sponsor from 2013, joint bank account information dating from 2015 until 2019 in joint names and in separate names , further material from the casino, bank account information concerning the sponsor from 2013, more traffic infringement information, further bank account information from the sponsor with various dates, car insurance policy information, VicRoads registration material, more bank account material from the main applicant, and other general bank and financial transaction material with various dates, material from an educational provider dated July 2018, a statutory declaration from the main applicant’s stepdaughter, a statutory declaration in form 888 dated 9 November 2019, a letter of support from one of the applicants dated 11 November 2019, more statutory declaration material in form 888, a letter of support from the sponsor’s parents, a statement from the sponsor dated 11 November 2019, a statement from the main applicant dated 15 November 2019, and other material.

22. The Tribunal has also considered information from the delegate’s file: material supplied by the Department regarding this case, various photos taken in social situations, statutory declarations with various dates, material regarding the nondisclosure certificate as noted above, some social media material from 2016, some material regarding a fish and chip shop where the sponsor worked and where they lived in residential accommodation, other letters in support written by various associates, and other material.

    ·Financial aspects of the relationship - including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

23. The Tribunal reviewed the financial information provided with the applicant. The Tribunal discussed with the applicant the existence of a joint bank account with the Commonwealth Bank that the applicant and the sponsor used together and noted that there was a transaction history for some years. The Tribunal also had a discussion with the applicant regarding her separate NAB account and the sponsor’s separate Westpac account. It is noted that these accounts also provide credit cards held in common by both parties. The Tribunal investigated the transaction history between these accounts. The Tribunal also discussed with the applicant her salary transfer information and the nonexistence of a record of such transactions. The applicant provided evidence that she is not working at this point of time and that her husband is only working a day or two a week and is being paid in cash. The Tribunal had a detailed look at the information provided that does demonstrate the common use for day-to-day matters and expenses of joint bank accounts held by both parties.

24. The Tribunal finds that the applicant and the sponsor have demonstrated a significant pooling of financial resources through these accounts over a period of some years acknowledging also that the applicant and the sponsor are of limited financial means. The joint account transaction information also includes transaction material from the sponsor’s family which has been paid into these common accounts. The Tribunal had a detailed discussion with the applicant in regard to some of these transactions, including an inheritance from the sponsor’s family in 2019 after the death of his father which included monies given to the sponsor and paid into this joint account under the joint control of the applicant and the sponsor. After consideration of the evidence provided the Tribunal finds that there are financial aspects of this relationship which is demonstrated through these financial transactions over a period of some years. The Tribunal also notes that material provided recently by the parties demonstrates that this financial relationship is ongoing.

25. The Tribunal also had a discussion with the applicant about other aspects of the financial nature of their relationship and notes that there is no joint ownership of assets, or joint liabilities or any legal obligations owed to either party.

26. The Tribunal had a discussion with the applicant regarding the ownership of the fish and chip business in Ashburton and notes that this business was not held jointly and was in the applicant’s name only.

27. The Tribunal, although concerned by the lack of evidence in regard to these other matters notes that the applicant and the sponsor are of limited financial means and that the financial history as demonstrated by these bank account details does lend weight to the contention that the applicant and the sponsor are in a genuine long-term spousal relationship.

    ·Nature of the household - including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

28. The Tribunal had a discussion with the applicant and the sponsor regarding their joint living arrangements and also considered evidence provided by the witnesses nominated. The applicants provided evidence that they have lived at the same addresses for more than six years in four rental properties. The Tribunal had a detailed discussion with the applicant and the sponsor separately about these matters. The Tribunal has considered the evidence provided and finds it convincing that the applicant and the sponsor have lived together throughout this time in an intimate partner relationship. It is noted by the Tribunal that the delegate’s decision outlines some concerning aspects of inconsistent evidence that was provided by the parties prior to the refusal of their application. The Tribunal had a detailed discussion with the parties, in particular the applicant, about these inconsistencies, and accepts that there may have been some language problems or problems of interpretation which may have led to one or two of these inconsistencies.

29. The Tribunal also had a discussion with the parties about their separate travel history and the applicant and sponsor provided evidence that they have travelled separately on some occasions back to China to visit members of their respective families and that they have done so because of the responsibility of running their business and also of one partner looking after the applicant’s son while he is at school in Australia. The applicant and the sponsor also provided evidence of joint travel to China where they both visited and stayed with respective members of the other party’s family.

30. The Tribunal has considered carefully the evidence provided and finds that the applicant and the sponsor have given credible evidence that they are in fact sharing a household, and in fact have done so for the last six years or so, and throughout this time have been sharing joint living arrangements in an intimate partner setting. The Tribunal finds that this is evidence that lends weight to the contention that the applicant and the sponsor are in a genuine spousal relationship.

    ·Social aspects of the relationship - including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

31. The applicant and the sponsor presented evidence that demonstrated that there are social aspects of their relationship and this was supported by evidence given by the three witnesses provided at the hearing.

32. The Tribunal has considered the evidence provided and finds it credible that the parties do represent themselves to other people as being married to each other, and that that is the opinion of friends, family, and acquaintances. In particular the Tribunal notes that evidence provided by the witnesses at the hearing resolves the apparent inconsistency in the information given by the applicant and sponsor in regard to matters raised in the Department’s decision including issues associated with the marriage ceremony, the wedding and the wedding banquet. The Tribunal finds that this lends weight to the contention that the applicant and the sponsor are in a genuine spousal relationship.

    ·Nature of persons' commitment to each other - including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

33. At hearing the applicant and the sponsor provided evidence that demonstrated that they have been together now here in Australia since 2013 and that they have spent almost all this time living together and that they do draw companionship and emotional support from each other and that they do see this relationship as long-term.

    ·Any other circumstances of the relationship.

34. The Tribunal has considered all the evidence provided and finds that the applicant and the sponsor do have a mutual commitment to a shared life to the exclusion of others; that they do have a genuine and continuing relationship; and that they do intend to live together and not separately and apart on a permanent basis.

35. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant does meet cl.801.221(2)(c).

36. In regard to the secondary applicant the Tribunal finds that as the primary visa applicant meets the criteria in cl.801.221, the second named visa applicant’s ability to satisfy the secondary criteria should also be reconsidered.

37. 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 801 visa.

    DECISION

38. The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221of Schedule 2 to the Regulations

    Stephen Witts
    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).