Summerhill (Migration)

[2024] AATA 3952

Summerhill (Migration) [2024] AATA 3952 (12 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Robert William Summerhill

VISA APPLICANT:  Ms Xia Shu

REPRESENTATIVE:  Mr Garry Frederick Howard (MARN: 9804095)

CASE NUMBER:  1919374

DIBP REFERENCE(S):  BCC2018/1891021

MEMBER:Moira Brophy

DATE:12 June 2024

PLACE OF DECISION:  Sydney

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

·cl 309.211 of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 12 June 2024 at 9:28am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – limited joint finances, shared households and activities when visiting and statutory declarations from friends and colleagues – nature of commitment – age gap, rapid development of relationship and applicant’s visa history – sponsor’s estrangement from adult child – companionship and emotional support – credible evidence from review applicant and some concerns about credibility of visa applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, 309.211(2), 309.221

CASES
He v MIBP [2017] FCAFC 206
MILGEA v Dhillon [1990] FCA 200

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 on 5 July 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 April 2018 on the basis of her relationship with her 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 and cl 309.221 because the delegate was not satisfied the parties were in a genuine and continuing relationship.

4. The review applicant appeared before the Tribunal on 10 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from Mr Luke Jackovich. The Tribunal was assisted by an interpreter in the Mandarin and English languages.

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

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

   Background

7. The visa applicant is a 53-year-old female currently residing in China. She was previously married in the period from 3 March 1992 to 13 December 2006 to Mr Xianfeng Ke. There is one child of the relationship, a daughter born in 1992. The visa applicant’s father is deceased, her mother, one brother and two sisters reside in China.

8. The review applicant, Mr Robert William Summerhill, is an 84-year-old male living in Sydney. He was previously married to Ms Robyn Leanne Summerhill in the period from 8 October 1960 to 1 April 1976. There was one daughter of the marriage born in 1961. His parents and one sister are deceased.

9. At the time of the application, the parties stated they met on 2 March 2013. The parties committed to a long-term relationship to the exclusion of all others on 10 November 2015 being the date they married.

   Tribunal proceedings

10. The issue in the present case is whether the visa applicant and the review applicant were in a genuine and continuing relationship at the time of application and continue to be in a genuine and continuing relationship at the time of this decision.

11. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the review applicant and the visa applicant.

12. At the conclusion of the hearing on 10 April 2024, the Tribunal discussed certain concerns it had with the review applicant. The Tribunal explained the relevance of the issues and invited the review applicant to respond to the concerns raised. The issues raised pertained to commitment of the visa applicant to the relationship, her credibility generally in light of inconsistent evidence given at the time of the Departmental interview and to the Tribunal and the part a visa played in their relationship.

13. The parties generally gave consistent evidence about how they met, of their time living as part of one household in Australia and when the review applicant visited China, of their joint travel and of their respective families. Generally, the Tribunal found the review applicant to be a credible witness. The Tribunal was convinced of his commitment to the relationship and was especially mindful of the price he had paid for his commitment in terms of his estrangement from his only child as a consequence of that commitment. The Tribunal did have some concerns about the credibility of the visa applicant and whether the prime commitment on the part of the visa applicant was to a visa to allow her to live in Australia, or to the relationship with the review applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the parties are in a spouse or de facto relationship.

14. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen

15. ‘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 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            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?

16. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties’ marriage on 10 November 2025 and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, 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?

    Financial aspects of the relationship

17. The Tribunal has considered the financial aspects of the relationship, including joint ownership of assets; joint liabilities; the extent of any pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses.

18. The review applicant lives in Sydney in his own home. He has lived in the same property for 61 years. He lived there with the visa applicant in the period after they married in November 2015 and has continued to live there since she returned to China. He works as a repair person. He is a sole trader and generally works five days a week. He estimated his annual income to be around $80,000.

19. The visa applicant lives in China in an apartment she owns with her daughter. She is presently not in paid employment. Prior to March 2024 she was working casually at a car accessory factory. The review applicant sends money each month from their joint account to meet her daily needs. The account is only used for that purpose.

20. They do not share day-to-day household expenses. They do not have any joint assets or joint liabilities. This is not unusual given the review applicant is in Australia and the visa applicant is in China.

21. The Tribunal places some weight on this aspect of the relationship as the extent of the financial support provided by the review applicant to the visa applicant is indicative of parties in a genuine and continuing relationship pooling their available resources despite living in different countries.

    Nature of the household

22. The Tribunal considered the nature of the parties’ household, including any joint responsibility for care and support of children; the parties’ living arrangements; and any sharing of housework.

23. The Tribunal accepts that since the parties married in November 2015, they shared a household until the visa applicant returned to China in April 2018. They were also apart for a period from April 2016 to October 2016 when the applicant moved out because of discord with the daughter of the review applicant. The review applicant has visited China on seven occasions since April 2018 and the Tribunal accepts that during these periods the parties have lived together as part of one household. The Tribunal finds on this history the review applicant and the visa applicant have lived as part of one household for around three years since they married.

24. The parties gave consistent evidence as to the household arrangements during the periods they were together.

25. The parties gave consistent evidence about their plans to establish a joint household in Australia.

26. The Tribunal places some weight on this aspect of the relationship given the periods of cohabitation since the relationship commenced.

    Social aspects of the relationship

27. The Tribunal considered the social aspects of the relationship, including whether the  parties represent themselves to other people as being in a de facto relationship with 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.

28. The applicants provided statutory declarations in support of the relationship. These were from friends and work colleagues of the review applicant who had spent time with the couple in Sydney.

29. At the time of hearing the Tribunal took evidence from Mr Luke Jackovitch who gave evidence of spending time with the review applicant and the visa applicant while they were part of one household. He spoke of their care and affection for each other. He also spoke of the discord with the daughter of the review applicant who he had known for over thirty years.

30. In considering the social acceptance of the relationship and how they present to other people, the Tribunal was mindful of their circumstances. The review applicant does not enjoy an ongoing relationship with his daughter and  his only sibling has died.  The visa applicant has a relationship with her siblings and her daughter. When the review applicant is in China, they have spent time with members of her family.

31. The Tribunal accepts from the photographic evidence, the supporting documentation as outlined above, and their oral testimony at hearing, the parties have as a couple spent time with their friends, and they socialise within their limited community as a married couple.

32. The Tribunal accepts on the evidence before it the parties present to their friends as a married couple.

    Nature of the persons’ commitment to each other

33. The Tribunal considered the nature of the parties’ commitment to each other, including the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

34. Given the concerns raised by the delegate, the Tribunal carefully considered the evidence as to the nature of the commitment of both parties to the relationship. The Tribunal accepts the parties have known each other since 2013, having met when the visa applicant was seeking directions.

35. The Tribunal had some concerns as to the nature of the relationship, specifically the rapid inception of the relationship and the part the visa applicant’s visa history played in the relationship. The Tribunal was concerned given the previous applications made by the visa applicant, that the visa applicant was primarily motivated by her desire for a visa and the opportunity to live in Australia.

36. The Tribunal was mindful of consideration of motivation in Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Northrop, Wilcox and French JJ, 8 May 1990, unreported), where motivations for marriage have been restated as follows:

    ... people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc as according to what may be described as "community expectations". It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.

37. The decisions of the courts referred to above make it clear that it is inappropriate for a decision-maker to draw conclusions as to the respective commitments of the parties to a relationship from a finding that the motivation for the relationship included the visa status of the parties. In the Tribunal’s view, as this case demonstrates clearly, it is particularly inappropriate to draw such conclusions without first interviewing the parties and putting any concerns as to their motivation to them. The Act and Regulations provide clear guidance as to the matters that decision-makers are to consider in assessing relationships for the purposes of a Partner visa, and it is to these matters that regard must be had.

38. After carefully considering whether the evidence supported a finding that the motivation of the parties was in fact to gain a visa in the first instance, the Tribunal accepts given the timeline of the application and the fact the conduct of the parties was consistent with their claimed relationship, their primary commitment was to their relationship with each other and that while a visa and the opportunity for the visa applicant to be able to live in Australia was a part of the equation, their commitment to each other was not dependent on the visa being granted.

39. The Tribunal considered the review applicant to be self-contained and independent person who did not enjoy a large network of support. He lived a simple life and despite his age was still contributing actively and productively to society. He was self-supporting and in the absence of his relationship with his daughter he relied heavily on the visa applicant for emotional support and companionship. There was no doubting his commitment to the relationship. While the visa history of the visa applicant was of some concern the Tribunal was mindful this application was lodged in 2018 and despite the Covid pandemic and being separated the parties still maintained their commitment to each other and their relationship. Based on all the evidence, the Tribunal finds the parties have a commitment to each other consistent with them being in a genuine and continuing relationship.

40. Given the above findings, the Tribunal is satisfied that at the time the visa application was lodged and at the time of this decision, the parties have a mutual commitment to a shared life as partners to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal finds that they intend to live together in Australia and that they therefore do not live separately and apart on a permanent basis.

41. Based on the above, the Tribunal is satisfied that the requirements of s 5CB (2) are met at the time the visa application was made and at the time of this decision.

42. Therefore, the visa applicant satisfies both cl 309.211 and cl 309.221.

    DECISION

43. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211 of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    Moira Brophy
    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).