Tam (Migration)

[2021] AATA 736

Tam (Migration) [2021] AATA 736 (5 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sio Han Tam

VISA APPLICANT:  Mr Lok I Wong

CASE NUMBER:  1711406

DIBP REFERENCE(S):  BCC2015/3956850

MEMBER:John Longo

DATE:5 February 2021

PLACE OF DECISION:  Melbourne

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:

·PIC 4009 for the purpose of cl.309.225 of Schedule 2 to the Regulations.

Statement made on 05 February 2021 at 5:14pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – visa applicant intends to live in Australia permanently – limited residence in Australia – arrangements for children’s education in Australia – employment promotion in Macau – land purchases – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cl 309.225; Public Interest Criteria 4009

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 10 May 2017 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 19 December 2015 on the basis of his relationship with his 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.309.225 because they were not satisfied that the visa applicant continued to satisfy public interest criteria (PIC) 4009.

4. The review applicant appeared before the Tribunal on 20 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mr Lok I Wong. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether at the time of decision, the applicant meets the requirement of cl.309.225 and satisfies PIC 4009, which requires that the visa applicant and his sponsor intend to live in Australia permanently.  In determining this question, the Tribunal has had regard to the material on the Department’s file and regard to the material on its own file.

   Whether the parties are in a spousal relationship

7. In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made.  This means that the Tribunal has to determine whether the criterion in cl.309.225 – that the visa applicant is required to satisfy PIC 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021 – is satisfied. In particular, the Tribunal considered whether the visa applicant satisfied PIC 4009.

8. Since their marriage in 1999, the oral and documentary evidence before the Tribunal show that the review applicant and the visa applicant have had three children together, purchased real estate and shared a household, pooled financial resources to purchase real estate both in Australia and overseas and had joint caring responsibility for the children and their education. They have presented themselves as being married to each other to other people and this is shared by the opinions of family and friends of the nature of their relationship. There is evidence that they have been in this relationship for a significant period and present commitment to the relationship.

9. The Tribunal has not determined the criterion in cl.309.211(2) and cl.309.221 – that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal is of the view that it is more appropriate that the criteria in cl.309.211(2) and cl.309.221 and the nature of the visa applicant’s relationship with the review applicant, be first assessed by the Department and does not make any findings as to whether the visa applicant is the spouse of the review applicant.

   Do the visa applicant and sponsor intend to live in Australia?

10. The delegate stated that the visa applicant was first granted a permanent visa (Subclass 126) in 1998 and sponsored the review applicant to obtain a Subclass 309 visa in 2000. The review applicant was subsequently granted a Subclass 100 visa in 2002. The delegate also notes that that in 2007, with the review applicant’s nomination, the visa applicant was granted a partner (Subclass 801) visa. The delegate further states that according to the Department’s records, the visa applicant has spent 262 days in Australia and the review applicant has spent 265 days in Australia.

11. While there has been reference in the delegate’s decision to the previous grants of visas to both the review applicant and the visa applicant, the Tribunal has considered the events since the application to the Department to be materially relevant to the question of whether at the time of decision, the applicant meets the requirement of cl.309.225 and satisfies PIC 4009. The Tribunal considers that these events, which are supported by oral evidence and information, indicate that the visa applicant and his sponsor intend to live in Australia permanently.

12. The review applicant stated to the Tribunal that their first priority has been their children and the decision to reside in Australia is based on this need. She stated that the visa applicant has played a big part in looking after the finances of the family and that the decisions that have been made have been towards the family residing in Australia. She stated that her primary role has been looking after the household and the children. She stated that the visa applicant has wanted to reside in Australia since they met, having told her of the desire to do this from the beginning of their relationship. The review applicant stated that while they did apply to move after they married, they wanted to ensure they could maintain their lifestyle and provide the best opportunity for the children to contribute to Australia while there. The Tribunal notes that all three children of the review applicant and visa applicant were born in Australia.

13. The review applicant stated that they made arrangements for their eldest daughter to commence at Eltham College for year 10 from October 2017. She further stated that their eldest daughter completed her secondary school at Eltham College and is now studying at the University of Melbourne, having started in 2020 (first year). The review applicant and visa applicant stated that they are making arrangements for their second daughter to study at Loyola College. The Tribunal notes the email exchange provided to the Tribunal for the application process. The review applicant stated that they educated the children at an Anglican college in Macau so they would be prepared to continue their studies in Melbourne.

14. The Tribunal further notes that the review applicant and visa applicant purchased a property in Seabrook, Victoria, in 2008. The house was purchased with savings and a mortgage provided by the National Australia Bank (NAB). While the finance for the purchase was through the NAB in Hong Kong, which is no longer part of NAB, the review applicant stated that they opened a NAB account in Australia which is still in use. The review applicant stated that she pays her salary into this account. While initially financed, they stated that they have repaid the loan. In 2019, they purchased a property in Bundoora, which they paid for using their savings. They do not own any property in Macau and are currently renting.

15. The visa applicant stated that while he has always intended to reside in Australia since first arriving, he wanted to be well prepared. He has been working and planning their finances so they could achieve this goal. He stated that during this planning, he was promoted and due to the circumstances, this has kept him from returning. In addition, the visa applicant stated that his mother became unwell and so he did not leave earlier because he was visiting and providing care for her until she passed away in 2013.

16. He stated that they have purchased their properties here because the plan was to settle in Melbourne. He stated that he has told his employer that he intends to move to Australia, but this has not been formalised. He stated that he is entitled to apply for unpaid leave – up to 10 years – in anticipation of retirement.

17. He stated that he has researched what work he can do in Australia and thinks he could work as an interpreter but is prepared to do any work. He realised that it could be difficult to find work at his age. He is a journalist and has worked in producing social media and thinks he could work in this field. The Tribunal notes that the review applicant has previously advised her employer that she intends to move to Australia to reside and has applied for indefinite leave. The review applicant stated that she hopes to be able to continue further studies in social work and potentially find employment. The visa applicant stated that he has never given up on his intention to settle in Melbourne and it is only that the goal has been a step-by-step process to ensure their financial security.

18. The review applicant’s representative submitted that the visa applicant’s and review applicant’s transition to living in Australia has been open to the vagaries of life, but submitted that their aim has been to live in Australia permanently. Their representative further submitted that PIC 4009 does not impose a timeframe and there does not need to be an immediate intention.

19. The Tribunal is satisfied the applicant intends to live permanently in Australia and that the steps that have been taken, the purchase of property in Australia, the transfer of the children’s education in Australia, the establishment of bank accounts and the planning towards this transition show an intention to live permanently in Australia.

    CONCLUSION

20. Having considered all of the evidence and information, the Tribunal is satisfied that at the time of decision the applicant meets the requirements of cl.309.225 and that the applicant satisfies PIC 4009.

21. 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 309 visa.

    DECISION

22. 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:

    ·PIC 4009 for the purpose of cl.309.225 of Schedule 2 to the Regulations.

    John Longo
    Member