Shi (Migration)

[2019] AATA 4277

Shi (Migration) [2019] AATA 4277 (27 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ya Nan Shi

CASE NUMBER:  1724550

HOME AFFAIRS REFERENCE(S):           BCC2016/1818167

MEMBER:Adrienne Millbank

DATE:27 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 27 September 2019 at 4:07pm

CATCHWORDS

MIGRATION – refusal – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) –validly married – genuine spousal relationship – lack of commitment – relationship breakdown – family violence provisions – applicant’s subsequent marriage to another person – not genuine relationship – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a)

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 61 year old national of China. She first arrived in Australia in October 2013 on a Visitor (Subclass 600) visa, to visit her sister who lives in Bundaberg. The sponsor was born in Melbourne in 1949 and is 69 years old at the time of decision. The applicant declared one previous marriage, from which she has an adult son who lives in China. The sponsor declared one previous marriage and two adult children.

3. The applicant applied for the visa on 23 May 2016 on the basis of her relationship with her sponsor, while in Australia on a Visitor visa. 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 (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.

4. The Delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a). The Delegate was not satisfied that the applicant was in a genuine spousal relationship with the sponsor. The applicant advised the Department on 30 November 2016 that her relationship had broken down and she intended to continue the application under family violence provisions. The Delegate did not assess the applicant’s claims against the family violence exception in cl.820.221(3)(b)(i) because the Delegate was not satisfied that the applicant would have satisfied the requirements of 820.211(2), had the relationship not ceased.

5. The applicant appeared before the Tribunal on 17 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s older sister and from a friend of the applicant who assisted the applicant with the application for review.

6. Following the procedures of s.359AA of the Act, the Tribunal advised the applicant that it had information that would be the reason or a part of the reason, subject to her comments in response, for affirming the decision under review. The Tribunal advised that this information was contained in her international movement records; a transcript of a telephone interview conducted with her by the Department on 30 November 2016, and information provided by the sponsor at the time of application including his sponsorship application form and a written statement of relationship dated 2 May 2016. The Tribunal advised the applicant that the information was relevant because it suggested that she had entered into a relationship with the sponsor for the purpose of seeking a migration outcome, and the relationship was not genuine.

7. The Tribunal advised the applicant that she could seek an adjournment and consider her response before responding to questions based on the information, or concerns expressed by the Tribunal based on the information, or at any time. The applicant sought and was granted one adjournment during the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in the present case are whether the applicant and the sponsor were in a genuine spousal relationship at the time of application until the applicant left the relationship in November 2016, and if so, whether relevant family violence has occurred.

   Whether the parties are in a spouse or de facto relationship

10. 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 by birth.

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 parties’ 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. A copy of a Queensland Marriage Certificate was provided, certifying that the parties married in Hervey Bay on 10 November 2015. 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?

    Financial aspects of the relationship

13. There is no evidence before the Tribunal of legal obligations owed by the parties to each other. The applicant confirmed at hearing that she and the sponsor never jointly owned any property or other assets, and never incurred any joint liabilities. She confirmed that the house she moved into with the sponsor in a retirement village remained in his name, and that his cars also remained registered in his name. She stated that she did not believe the sponsor had any other significant assets or investments.

14. In his written statement dated 2 May 2016 the sponsor stated that he was retired and in receipt of an Aged Pension from the Australian Government. He stated that he also had a small superannuation account in which he had named the applicant as beneficiary. The Tribunal accepts this, but gives it little weight, as no evidence was provided of this account or the amount involved. Regarding the parties’ respective properties, the sponsor advised in his written statement that he and the applicant had discussed their Wills and agreed that any property each of them owned would be left to their children, not to each other. At hearing the applicant stated that she sold her apartment in China after moving to Australia, and that she gave the proceeds of the sale to her son so he could purchase property of his own.

15. The sponsor in his written statement of 2 May 2016 claimed that the parties shared day to day expenses as follows:

    ‘[The sponsor] was retired in China and receives a pension from the Chinese Government. I am retired and receive an Aged Pension from the Australian Government. With both amounts we pay all outgoings including: rent, utilities, motor vehicle running costs, food and all things that have to be payed [sic] for like most other couples’.

16. The Tribunal put this statement to the applicant because it conflicted with information she provided to the Tribunal that she did not pool her pension with the sponsor’s. The Tribunal asked the applicant whether she and the sponsor had discussed the pooling of their pensions similar to their discussion regarding their Wills. The applicant did not respond to this question, other than to state and repeat that when she was living with the sponsor he asked her to give him money and she was reluctant to do so. She confirmed that her pension is deposited into her bank account in China. She claimed it goes to support her aged mother.

17. The applicant at hearing and in her written statements described the sponsor’s demands for money as confronting. She stated that she offered to give him AUD 100 a week towards her living expenses but he insisted on more, and they settled on AUD 150 a week. She advised that her son or sometimes a sister in China withdrew money from her bank account in China and brought it to her, so she could meet the sponsor’s demands for AUD 150 a week. She claimed she told the sponsor that she was willing to get a job in Australia so as to contribute to household costs, but he did not want her to. She acknowledged however that the sponsor drove her to her sister’s massage and acupuncture business in Bundaberg, where she stayed for days at a time and ‘helped out’ by doing domestic chores or ‘at reception’.

18. The Tribunal put to the applicant that while she might have had an understanding and expectation based on tradition and custom that the sponsor as her husband would pay for all their living costs from his pension, the sponsor appeared to have an understanding and expectation that she would share her pension and their day-to-day living expenses. The applicant acknowledged this, but claimed that the sponsor also asked her, when she was living with him, to sell her property in China. She stated that he had a plan to sell his house and for them to build a house together. She stated that she would not agree to this, being aware that he had jointly purchased a house with his previous wife only for that relationship to fail. She stated that she didn’t know the sponsor well enough when they married to invest her own financial resources. She claimed however that if the relationship had worked out, after a period of around five years she would have considered bringing her own financial resources into it.

19. The Tribunal accepts that the sponsor supported the applicant while she lived in his house and that the applicant paid a sum of AUD 150 a week towards the cost of her upkeep during the time she was there. The Tribunal does not consider this arrangement consistent with a genuine spousal relationship. The Tribunal does not find that the parties pooled their resources consistent with what would be expected in a genuine spousal relationship.

    Nature of the household

20. The applicant confirmed that she moved into the sponsor’s house in a retirement village around the time of their marriage. In a written statement signed on 2 May 2016, the sponsor advised that he purchased the house in 2012, and that the cost of utilities and all other services and facilities in the village is included in monthly accounts which he, as the owner, pays. The applicant confirmed at hearing that no accounts associated with the house were ever opened in her name or in joint names. When asked if they had chosen and purchased any household goods or items of furniture together, the applicant stated that the sponsor organised some renovations before she moved in, and that he purchased new sofas.

21. A short written statement dated 28 April 2016 was provided by the ‘Village Manager’ of the retirement complex confirming that the applicant had been living with the sponsor since September 2015 ‘with the exception for the time she returned to China due to her Visa conditions’. The Tribunal asked the applicant why she went to China for over three months on 21 November 2015 shortly after marrying the sponsor, as this was not a requirement of her visa conditions. The applicant stated that she travelled to China with the sponsor and introduced him to her family. She stated that she remained longer in China than the sponsor who returned after several weeks, in order to spend more time with her elderly mother. She confirmed that she returned in March 2016.

22. The Tribunal accepts that the applicant and the sponsor intended to establish a joint household together as a married couple. The Tribunal notes however that the parties’ living arrangements were their main source of contention from soon after the applicant moved in. Examples of household conflict described in statements by the applicant written in support of her claim to have been subjected to family violence at the hands of the sponsor, included: the applicant insisting on washing clothes by hand and the sponsor insisting she use the washing machine; the sponsor insisting on eating meat for dinner and the applicant insisting on lighter evening meals than the sponsor preferred; the sponsor insisting on frugalities regarding the use of power and petrol; the sponsor insisting that the applicant learn English and being angry when she spent time with her sister and friends talking in Mandarin; and the sponsor criticising the applicant’s cooking.

23. The applicant stated that when she lived in the sponsor’s house she did most of the cooking and cleaning, and that sometimes she and the sponsor did the shopping together. She advised that she lived in the sponsor’s house until November 2016, apart from when she stayed at her sister’s house in Bundaberg which is two hours’ drive from the sponsor’s unit in Hervey Bay, or in her niece’s house in Brisbane. The applicant advised that the sponsor would drive her to her sister’s house and return to pick her up some days later, and that he would also drive her to her niece’s house in Brisbane, where they would sometimes both stay if the sponsor needed to go to a doctor in Brisbane.

24. The applicant’s and the sponsor’s children are adults, and no claim was made that the parties’ children at any time stayed with them, or that they have shared responsibility for the care and support of each other’s children.

25. The Tribunal finds that the applicant lived for most of the period from March 2016 to November 2016 in the sponsor’s house in Hervey Bay, albeit in circumstances of disharmony and increasing dysfunction, and albeit also with unspecified periods spent at her sister or niece’s houses. The Tribunal accepts that the applicant moved into the sponsor’s house with the intention of living there as his wife, and gives this some weight. The Tribunal considers however that the applicant moved into the sponsor’s house from the outset with a different understanding from the sponsor about how a marital household should be organised, managed and funded, and that these different expectations were never resolved.

    Social aspects of the relationship

26. Statutory declarations were provided at the time of application from neighbours of the parties at the retirement village. The declarants declare that they have met and socialised with the applicant as the wife of the sponsor. A written statement dated 26 December 2016 was provided by the applicant’s sister in Bundaberg, stating that her sister while living with the sponsor had been ‘helping us look after the shop’. This statement focussed on the marriage breakdown, and advised that the fault was entirely with the sponsor:

    ‘In her now recent marriage breakdown brought about by her husband [the sponsor] by his atrocious acts of authority-power and his turbulent dominate ill-nature and him saying you must get out and you should go back to China where you belong. You’re useless and no better than my other wives. To which [the applicant] did not know much about’.

27. Photos were provided at the time of application showing the parties together and with family members of the applicant in China in 2016, showing the sponsor meeting members of the applicant’s family. Photos were provided of the parties’ wedding, in a garden in Hervey Bay and of the reception meal in the Hervey Bay RSL attended by about 14 people. At hearing the applicant advised that friends of the sponsor, and her sister and sister’s family and friends attended the wedding. Photos were provided of the parties with the applicant’s niece who lives in Brisbane and the applicant’s son when he visited from China in September 2015. Photos were also provided of the parties at the applicant’s sister’s house in Bundaberg, and of the applicant with friends of the sponsor in Hervey Bay in September 2015.

28. At hearing the applicant described how the sponsor drove her to visit his friends, and to her sister’s house in Bundaberg. She described also how she introduced the sponsor to family in China, and introduced her son to the sponsor in Australia. She stated that her family members approved of the sponsor and supported her decision to marry him.

29. The Tribunal accepts that the parties planned and undertook joint social activities together as a couple. The Tribunal finds that from the time of their marriage in November 2015 to the time the relationship ended in November 2016, the parties represented themselves to and were recognised by other people as being married to each other. The Tribunal gives some weight to this consideration.

    Nature of persons' commitment to each other

30. The Tribunal drew the applicant’s attention to the transcript of her telephone interview with the Department on 30 November 2016, after the Department was advised that the relationship had broken down. In this interview the applicant advised that she didn’t realise ‘at the beginning’ that the sponsor had a short temper, and that he yelled at her when he was unhappy, telling her to go back to China, to which she replied ‘why – we are going OK?’.

31. When asked why she wanted to come to Australia and continue residing in Australia, the applicant stated:

    ‘My eldest sister is living in Australia, my eldest sister says you can come to Australia so we can live close by so I married him but I didn’t expect him to be very bad tempered’.

    The applicant then went on to ask the following question:

    ‘If I want to find a guarantor I mean a sponsor would this be my migration agent – I mean [the sponsor] is no longer my sponsor how do I find another sponsor?’

32. At hearing, the applicant advised the Tribunal that she has another ‘sponsor’. She clarified that she is now married to another person, with whom she also established contact through an internet dating site. There was some confusion for a period during the hearing with the terms ‘sponsor’ and ‘husband’ which was not resolved by the Tribunal referring to the applicant’s Australian husbands by their surnames. The applicant confirmed that she has not lodged another Partner visa application. The applicant confirmed that she understood that her former husband is her sponsor for this review. The applicant however did not know or could not recall the surname of her sponsor for this application. She stated that she only knew him by his first name. She indicated that she is happier with her current ‘sponsor’ than the previous one.

33. When asked why she pursued review of this case, as she now has another husband and presumably intends to lodge another Partner visa application, the applicant stated that she was seeking vindication. She acknowledged that she was motivated to enter into the relationship with the sponsor by a desire to come and live in Australia near her sister, and that her relationship with the sponsor, with whom she established contact through an internet dating site with the assistance of her sister, was not successful from the time she returned from China in March 2016. She claimed however that the marriage was not a contrived marriage. She claimed that she would have remained in it if the sponsor was not short-tempered or mean with his money.

1. The applicant provided an English copy of a diary she claims she maintained from July 2016 to November 2016. In this she describes how the sponsor was impatient with her from the outset of their married life together in the retirement village because of her inability to speak English; because of her lack of progress learning English at the community classes he drove her to; and because she spoke Mandarin with her friends and family members. She describes at some length how the sponsor was often angry about her cooking; how he preferred a meat meal in the evenings and she prepared ‘light’ meals. At hearing the applicant agreed with the proposition put by the Tribunal that the sponsor may have been as disappointed in the relationship as she was; that he might have been anticipating a companion with whom he could communicate in English, meals that he enjoyed, and another source of funds for living expenses.

2. The applicant stated that while she was in China after her marriage to the sponsor she communicated with him through emails, using an internet translation application. She stated that she and the sponsor similarly communicated while living together by using internet translation applications on their mobile phones. The Tribunal accepts that the parties have communicated with each other with the assistance of internet translation applications.

3. The Tribunal does not consider nine months living together signifies a genuine relationship. The Tribunal notes that during this time of living together the applicant acknowledged that she and the sponsor communicated with difficulty; that, according to the applicant and her supporting witnesses, what the sponsor communicated to the applicant mostly was frustration, anger and dissatisfaction with the relationship; and that the applicant stated that she often did not know what the sponsor was angry about. On her own admission the applicant turned to her sister and friends and tutors from her conversational English classes for companionship and emotional support during the time she lived with the sponsor after their marriage. On her own admission the applicant was not willing to invest her own money in the relationship during the time she lived in the sponsor’s house.

4. The Tribunal considers that if the parties had been in a genuine relationship the applicant would know the sponsor’s surname. The Tribunal accepts that the applicant may have viewed the marriage through a traditional cultural lens, but nevertheless the Tribunal considers the applicant’s lack of financial and emotional investment in the relationship to show that she did not see it as long-term.

5. The Tribunal accepts that there was some social recognition of the relationship; that the parties lived together from March 2016 to November 2016; and that the marriage was not contrived as a complete sham. These considerations are outweighed by the Tribunal’s findings that the parties did not pool their financial resources or share day-to-day expenses; that the applicant lacked commitment to the relationship; and that the parties did not provide companionship and emotional support to each other commensurate with being in a genuine relationship.

6. 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 and in November 2016 when the relationship ended.

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

8. The applicant provided statutory declarations from two volunteer tutors and the coordinator of the applicant’s conversational English classes, and a letter from her sister in Bundaberg as noted, describing how they had witnessed the applicant to suffer family violence at the hands of the sponsor in the form his controlling behaviour and frustration at the applicant’s lack of progress in learning English. The applicant provided a statutory declaration from her friend who assisted her with her review application, and a statutory declaration signed by herself, both describing in more detail her claims to have suffered family violence in the form of financial abuse and controlling and shouting behaviour, at the hands of the sponsor.

9. The Tribunal asked the applicant why she had not lodged the required documents for a judicially determined or non-judicially determined claim to have suffered relevant family violence. The applicant stated that her friend had assisted her to go to a women’s shelter and to RAILS, and she made contact with these organisations, but that she didn’t accept their proffered help to prepare her claims. She stated that she was ambivalent at the time. She stated that the sponsor had not been physically violent towards her, and she did not want to cause him distress which might aggravate his medical conditions.

10. The applicant has not provided the evidentiary requirements specified in IMMI 12/116 to meet the family violence provisions in r.1.23. In any event, the Tribunal has found the applicant does not meet cl.820.211(2)(a). Therefore the applicant does not meet cl.820.211(2) and would not have satisfied cl.820.211(2) had the relationship not ended.  Therefore, the applicant does not meet the family violence exception in cl.820.221(3)(b)(i).

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

    DECISION

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

    Adrienne Millbank
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     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).