Shi (Migration)

[2024] AATA 3887

Shi (Migration) [2024] AATA 3887 (26 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhongkun Shi

CASE NUMBER:  1928825

HOME AFFAIRS REFERENCE(S):          BCC2018/2834038

MEMBER:Cheryl Cartwright

DATE:26 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 26 September 2024 at 12:43pm

CATCHWORDS 
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – parties have spent eight days together during 5 years apart – sponsor did not provide a statement in support of the relationship – sponsor didn’t attend hearing – applicant has not provided sufficient evidence of a genuine long-term spousal relationship with the sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, 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 made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 July 2018 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because there was insufficient evidence to demonstrate that the applicant was the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.

4. The applicant was invited to appear before the Tribunal on 2 August 2024 and he did not appear. The Tribunal made an interim decision to dismiss the application for review and the applicant was advised that he had until 19 August 2024 to apply for reinstatement of the application. On 5 August 2024 the Tribunal received an email from the applicant requesting reinstatement and on 6 August 2024 he was invited to a new hearing.

5. The applicant appeared before the Tribunal on 3 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 at the time of application the applicant and the sponsor were spouses for the purposes of the Act.

8. Section 5F(2) of the Migration Act states that persons are in a married relationship if:

   (a)  they are married to each other under a marriage that is valid for the purposes of this Act; and
   (b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
   (c) the relationship between them is genuine and continuing; and
   (d) they:
        (i)  live together; or
        (ii)  do not live separately and apart on a permanent basis.

9. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application and the date of the delegate’s decision.

   Background

10. The applicant arrived in Australia in July 2017 on a visitor visa (subclass 600) and the parties claim to have met at a party on the day of his arrival. They stayed in touch after meeting and began dating.

11. The applicant returned to China in December 2017. The parties remained in touch, the applicant came back to Australia in January 2018, and the parties decided to live together.

12. In April 2018 the parties travelled together to Thailand for a holiday and met with the applicant’s friends. At the end of the holiday, after returning to Australia, they were married in June 2018.

13. In March 2019 the applicant returned to China to establish a business in Xi’an, remaining there for six months and returning to Australia on 16 September 2019. The Tribunal notes that the applicant’s bridging visa (subclass 020) ceased on 28 October 2019 and the applicant departed Australia on 31 October 2019. The applicant has not visited Australia since that date. The parties met again briefly in June 2023 in Shanghai and in May 2024 in Xi’an.

14. At the hearing on 3 September 2024, the applicant stated that he would like to provide further written submissions to the Tribunal and he was given one week, that is until 10 September 2024, to provide the information. Later in the day on 3 September 2024 a Tribunal officer wrote to the applicant to confirm that the Tribunal required information relevant to the case. The Tribunal officer gave the applicant until 17 September 2024 to provide the further information. The Tribunal contacted the applicant via email and telephone on 20 and 23 September 2024 and the applicant confirmed on 23 September 2024 that he had received the letter dated 3 September 2024.

15. In the letter the Tribunal officer stated that, in assessing the case, the Tribunal must consider the Migration Regulations and he included in the letter reg 1.15A as per the attachment to this decision. The Tribunal officer also provided information regarding the type of information that the applicant might consider providing, including but not limited to: evidence of ongoing contact over the period of the relationship, evidence of marriage-related events and evidence that the parties are accepted as a couple, including dated and labelled photographs of social events, evidence of cohabitation and written statements from the applicant and sponsor. The letter stated that the information should be provided in English, or if it is in another language, it should be accompanied by an English translation from an accredited translator.

    Whether the parties are in a spouse or de facto relationship

16. Clauses 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 spouse of the sponsor who is an Australian citizen. A copy of his passport is on the Department’s file.

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

    Are the parties validly married?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in Sydney on 25 June 2018. A copy of the marriage certificate is on the Department’s file. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

19. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other. In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file.

    The financial aspects of the relationship

20. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

21. There is no evidence before the Tribunal that the parties have joint ownership of real estate or other major assets or any joint liabilities, or that one party has any legal obligations owed to the other party.

22. At the time of application, the parties provided a copy of a statement from a joint bank account dated 6 April to 8 June 2018. The statement shows regular cash deposits as well as expenditures on household items and social activities. There is no evidence of salary or wages deposits into the account. On 23 and 24 September 2024, after the hearing, the applicant provided copies of statements from a joint bank account dated 8 August 2022 to 8 February 2023, 8 February 2023 to 8 August 2023 and 8 February 2024 to 8 August 2024. These accounts show mainly cash transfers and rent payments, as well as salary deposits of the sponsor.

23. The applicant told the Tribunal hearing that he had not used the joint account since returning to China. He stated that he occasionally sent money to the sponsor, but the transfers were undertaken via WeChat transfer and not deposited into the joint bank account. He told the hearing that the sponsor still uses the joint account. Given the limited use of the joint bank account the Tribunal gives the documents little weight as evidence the parties jointly manage finances.

24. The applicant also told the hearing that when he returned to China in March 2019 he had started a business, a bar that welcomed ‘gay and not gay customers’; however the business had failed – mainly because of COVID lockdowns. He no longer has the business and now works in China selling pharmaceuticals.

25. The Tribunal notes that, living in separate countries, it is difficult to pool financial resources or share day-to-day household expenses and gives little weight to the evidence provided in regard to the parties’ shared financial management.

    
    

    Nature of the household

26. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

27. There is no evidence that the parties have any children together. In a statement dated 24 September 2019 the applicant states that the parties wanted to live together and ‘raise a cat’.

28. In a statement dated July 2018 the sponsor states that the parties decided early in 2018 to live together and they travelled together to Thailand in April 2018. They enjoyed the holiday and decided to get married when they returned from Thailand. They were married in Sydney in June 2018. The sponsor states that the parties enjoyed living together in Sydney because of the ‘freedom of gay love in Australia’.

29. As mentioned above, nine months after the parties were married, the applicant returned to China to establish a business there, returning to Australia six months later. One month after that, the applicant left Australia on 31 October 2019 and has lived in China since that date. He has not returned to Australia to live or for a visit.

30. The applicant told the Tribunal that he had wanted to visit Australia in 2020 but was unable to enter the country because of COVID restrictions.

31. The applicant and sponsor spent three days together in Shanghai in June 2023 when the sponsor was visiting that city. The applicant told the hearing that he had been travelling with his family through Thailand, Malaysia and Singapore at that time and he had taken three days away from his family on that trip to visit the sponsor in Shanghai.

32. The applicant also told the hearing that the parties had spent five days together in Xi’an in May 2024. The sponsor had been visiting China to attend a wedding in Suzhou. The applicant did not attend the wedding with the sponsor, but the sponsor visited the applicant in Xi’an and they had visited key sites of interest in and around Xi’an. The Tribunal asked the applicant why he had not attended the wedding with the sponsor and the applicant stated that he had been taking care of a family member who was unwell.

33. On 6 September 2024, after the hearing, the applicant provided to the Tribunal a copy of a document described as a ‘Registration Form’ that appears to relate to a hotel booking but does not contain the name or location of a hotel. The form shows the name of the applicant and an arrival date of 9 May 2024 and departure date of 10 May 2024. The form does not show the name of the sponsor. In the same communication the applicant provided a copy of an airline ticket in the name of the sponsor dated 10 May, destination CAN, which is the airport code for Guangzhou Baiyun International Airport. The applicant also provided an invoice for the Renaissance Hotel in Shanghai containing both his and the sponsor’s names. The check-in date is 1 July 2023 and the check-out date is 3 July 2023. The documents, of themselves, do not confirm the parties met as part of a spousal household in 2023 and 2024; however, the Tribunal gives some weight to the applicant’s evidence, including his evidence to the hearing, that the parties did meet for three days in 2023 and five days in 2024.

34. On 6 September 2024, after the hearing, the applicant provided WeChat records of a discussion. Some of the information has been translated into English from Mandarin. There are no names in the chat records and the date has not been translated. The chat refers to travel to Shanghai and Xi’an, as well as the transfer of 5,000 Yuan. The applicant also provided a copy of a chat discussion in English dated 13 February 2020. The chat is titled ‘Kun-fan FAN’, but neither the applicant’s nor the sponsor’s name is on the chat, which refers to Valentine’s Day and contains a request for a phone number and an address. The Tribunal gives little weight to these documents as evidence of the nature of the household.

35. The Tribunal notes that the parties claim to have lived together from early in 2018 until October 2019, although the applicant was living in China from March until September 2019. As mentioned above, since October 2019 they have spent a total of eight days together.

36. The Tribunal accepts that living in separate countries it is difficult to demonstrate a shared household. The Tribunal also notes that the sponsor travelled for three weeks in 2023, spending three days with the applicant, and travelled for 16 days in 2024, spending five days with the applicant. During five years apart, the parties have spent eight days together and the Tribunal gives little weight to the evidence of a shared household.

    The social aspects of the relationship  

37. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

38. At the time of application the parties provided a number of photographs of themselves in various locations and socialising with friends. In further correspondence received by the Tribunal from the applicant on 6 September 2024, he provided a photograph of himself with the sponsor at an airport. The photograph is not dated.

39. In a statement dated 25 July 2018 a friend of the parties, Yongcheng Lu, states that he witnessed the parties’ marriage and he socialised with them regularly. He states that the parties ‘watch similar TV shows’ and listen to the same music. The Tribunal gives some weight to this statement.

40. In a statement dated 26 July 2018 provided at the time of application, a friend of the parties, Shengyu Lu states that he became friends with the parties after they became engaged and he socialised with them often.

41. At the hearing on 3 September the Tribunal asked the applicant if he had had contact with Shengyu Lu or Yongcheng Lu since leaving Australia in October 2019 and the applicant stated that he did not remember these people.

42. As mentioned above, the applicant told the hearing that the parties had spent five days together in Xi’an, his home town, in May 2024. He stated that he had not introduced the sponsor to his family because his family was not comfortable with gay relationships. The Tribunal asked why the applicant had not introduced the sponsor to his family as a friend, rather than as a partner, and the applicant stated that his mother does not know any of his friends ‘gay or straight’.

43. The Tribunal notes the photographs provided at the time of application showing the parties socialising with friends when the applicant was living in Australia; however, also notes that there are no photographs of the parties’ time together for the eight days over two meetings since the applicant left Australia in October 2019, other than one undated photograph of the parties at an airport. The Tribunal also notes that the applicant provided no further statements from friends or family in relation to the parties’ relationship, other than the statements provided at the time of application by Shengyu Lu and Yongcheng Lu, who the applicant does not remember.

44. The Tribunal notes that, living in separate countries, it is difficult to socialise as a couple; however, in the eight days spent together since the applicant left Australia in October 2019, there is no evidence of the parties socialising as a couple. The Tribunal gives little weight to the evidence that the parties socialise as a couple and are seen by friends and acquaintances as a couple in a genuine long-term spousal relationship.

    The nature of the persons’ commitment to each other

45. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

46. The applicant told the hearing that it is easier and happier for homosexual people to live in Australia, rather than China. He stated: ‘It’s hard to live as a gay in China.’

47. The Tribunal notes that at the time of application the parties had been married for one month. As mentioned above, the applicant returned to China eight months after the marriage, in March 2019 and remained there for six months. He returned to Australia on 16 September 2019. On 31 October 2019 he left Australia, 16 months after the marriage, and the parties have not lived together since then. They spent three days together in Shanghai in June 2023 and five days together in Xi’an in May 2024. The Tribunal is concerned that the parties have spent less than a year living together as a married couple.

48. In his statement dated 24 September 2019 mentioned above, the applicant states that the parties had planned ‘to live together in the future, to raise a cat, to purchase a superior car and to establish our sweet family together’. He stated that, during the ‘temporary separation’ in 2019 – between March and September – they had remained in touch via WeChat. In a statement dated June 2018, the sponsor states that the parties wanted to travel overseas together and get a pet cat to live with them in Australia. The sponsor stated that the parties enjoyed Sydney and the ‘freedom of gay love in Australia’, and they hoped to have a ‘longer time living together’ in Australia.

1. The applicant told the hearing that, after returning to China in October 2019, he had not seen the sponsor in person until 2023. He had tried to visit Australia in 2020 but was not allowed to travel because of COVID restrictions. The next time he had seen the sponsor was in Shanghai in June 2023 where the sponsor was visiting from Australia. At that time, the applicant had been travelling with his family through Thailand, Malaysia and Singapore and he had taken three days away from his family during that trip to visit the sponsor in Shanghai. The parties had also spent five days together in May 2024 when the sponsor was visiting China to attend a wedding in Suzhou and had visited the applicant in Xi’an for five days of his trip.

2. The Tribunal asked the applicant why the sponsor had not attended the hearing and the applicant stated that it was because the sponsor had not received an email from the Tribunal, and ‘he is at work and has a conference’.

3. The applicant told the Tribunal hearing that he would like to sell his property in China and purchase property in Australia where the parties could live together. He stated that the parties have friends in Australia who have opened businesses so he would have many opportunities for employment.

4. In his statement mentioned above Yongcheng Lu states that there is ‘constant care’ between the parties and the sponsor had taken care of the applicant when he was unwell. The Tribunal notes that this statement was provided at the time of application and the applicant has not remained in contact with Mr Lu.

5. On 6 September 2024, after the hearing, the applicant provided copies of chat records purported to demonstrate his communication with the sponsor. The chat records are in Mandarin, with no English translation; therefore the Tribunal cannot verify their authenticity.

6. In a statement provided as an email to the Tribunal on 6 September 2024, the applicant states that the parties’ relationship ‘has been rooted in love and a steadfast commitment to one another’. He states that the parties had been able to establish a homosexual relationship because of ‘Australia’s openness and inclusivity’ and ‘profound revelation’ of acceptance in Australia had seen him ‘fall deeply in love’ with the country and its values. The applicant states that, ‘the person I love is waiting for me in Australia’.

7. The Tribunal notes that the sponsor did not provide a statement to the Tribunal in support of the relationship, nor did he attend the hearing. At the hearing the Tribunal asked the applicant why the sponsor was not participating in the hearing and the applicant stated that the sponsor ‘did not get an email’ about the hearing and he had ‘assumed’ that he did not need to appear. The applicant stated that he did not ask the sponsor to attend the hearing.

8. The Tribunal notes the parties have remained in touch but have spent only a total of eight days together since October 2019. The Tribunal gives little weight to the evidence provided in regard to the parties’ commitment to each other.

   Conclusion

9. The Tribunal notes that living in different countries it is difficult to demonstrate that parties share a household or share responsibility for household finances. The Tribunal also notes that, at the time of application, the parties provided photographs of themselves socialising with friends, but this of itself is not evidence of a genuine long-term spousal relationship.

10. The Tribunal notes that the parties dated for approximately six months before deciding to live together and marry, and they were married for less than one year before the applicant went to China for eight months and he then left again two months later, and he has not returned since. The parties have spent less than two weeks together since the applicant returned to China in October 2019. The Tribunal gives little weight to the living arrangements as evidence of a genuine spousal relationship.

11. The applicant told the hearing that it is easier and happier for homosexual people to live in Australia, rather than China. ‘It’s hard to live as a gay in China.’ Tribunal accepts that the applicant would like to live in Australia because of the acceptance of homosexual relationships; however, in applying for a partner visa the applicant has not provided sufficient evidence of a genuine long-term spousal relationship with the sponsor.

12. 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.

13. Therefore the applicant does not meet cl 820.211.

14. The applicant is required, at the time of application, to satisfy clause 820.211 by meeting the requirements of at least one of subclauses (2), (5), (6), (7), (8), or (9). As mentioned above the Tribunal considers that the applicant is not in a genuine spousal relationship so does not meet cl 820.211(2).

15. As the applicant is not the holder of a prospective marriage visa (subclass 300), he does not meet cl 820.211 (7) or (8).

16. Cl 820.211(9)(d) and (e) state that the applicant would meet this subclause if the relationship has ceased and

    i.the applicant;

    ii.a member of the family unit of the applicant who has made a combined application with the applicant;

    iii.a dependent child of the sponsoring partner or of the applicant or of both of them;
    has suffered family violence committed by the sponsoring partner.

17. The applicant has not claimed that the relationship has ceased due to family violence. Therefore the applicant does not meet the requirements of cl 820.211(9).

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

    DECISION

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

    Cheryl Cartwright
    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).