Tay (Migration)

[2023] AATA 574

Tay (Migration) [2023] AATA 574 (8 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Joseph Chew Kiat Tay

VISA APPLICANT:  Mrs Thi Phuong Bui

REPRESENTATIVE:  Mr Jingxin Wu

CASE NUMBER:  2204932

DIBP REFERENCE(S):  OSF2014/025880

DEPUTY PRESIDENT:  Antoinette Younes

DATE:8 February 2023

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(2) of Schedule 2 to the Regulations

• cl 309.221 of Schedule 2 to the Regulations.

Statement made on 8 February 2023 at 04:45pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 –– persuasive evidence consistent with the sponsor’s commitment to a relationship with the visa applicant – substantial age difference – copy of Marriage Certificate provided – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– parties are committed to one another –  decision under review remitted   

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15A, Schedule 2, cls 309.211, 309.221

CASES
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 24 April 2015 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 26 August 2014 on the basis of her relationship with her sponsor, the review applicant (‘sponsor’). 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 because the delegate was not satisfied that the applicant is the spouse of the sponsor, as defined in the Act.

4. This matter was before the Tribunal previously (differently constituted) and on 18 November 2016, the Tribunal affirmed the delegate’s decision. On appeal and on 4 June 2021, the Court remitted the matter to the Tribunal for reconsideration.

5. The sponsor appeared before the Tribunal on 13 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant satisfies cl 309.211(2) and cl 309.221.

   Whether the parties are in a spouse or de facto relationship

8. Clauses 309.211(2) and 309.221 require 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. In the present case the visa applicant claims to be the spouse of the sponsor who is an Australian citizen.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The couple provided a copy of their Marriage Certificate showing that they married in Singapore on 16 May 2014. On the evidence, 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?

10. ‘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 sponsor’s household and their commitment to each other as set out in reg 1.15A(3) of the Regulations, which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

11. The Tribunal considered relevant documents in the visa application file provided by the Department and documents provided by the parties. Relevantly, the couple provided copies of documents in support of the visa and review applications, including money transfer receipts/records, photographs, bank accounts, Statutory Declarations, wills and text messages.

12. By way of background, the sponsor was born in Malaysia in 1953. He grew up in Singapore with his adopted family. He came to Australia in 1990 and became a citizen in 2002. He lives and works in Sydney. He was married briefly to his first wife who died in 2005 and he has no children. The visa applicant was born in Vietnam in 1992. She currently lives in Vietnam.

13. During the hearing, the sponsor gave evidence that he and the visa applicant met in Singapore through an introduction agency around December 2013. He stated that he had used the agency previously to find him a suitable partner. He stated that he found the visa applicant attractive and healthy. He stated that they married the following year, in 2014. He stated that after their first meeting, she returned to Vietnam. He said they married on the second occasion they met. He said they decided to marry after their first meeting when they began to communicate through the agency, in accordance with the agency’s rules. He said he paid the agency about SGD 7,000. He said they married in Singapore in front of witnesses unknown to either party.

14. The sponsor gave evidence that subsequent to their marriage, they saw each other on a number of occasions, the last time being in 2017. The Tribunal asked the sponsor to explain the reasons for not seeing the visa applicant after 2017. He stated it was due to COVID-19 and the expense. He said each visit costs approximately $20,000. He said he felt that sending money to the visa applicant was very important. He also referred to an incident where he was “cheated” out of $300,000 by a third party and he took action to recover the funds. He said that caused him severe financial hardship which meant that he had limited financial means to visit Vietnam after 2017. The Tribunal pointed out to the sponsor that since the last hearing, he has not provided any corroborative evidence. He said he did not know such evidence was needed. The Tribunal gave him time to provide evidence in support and he provided to the Tribunal further material, including bank details, money transfers and photographs.

15. The sponsor gave evidence that he is on his own and is very keen to have a family. He explained to the Tribunal that he suffers from diabetes which has contributed to sexual issues.[1] He stated that he consults specialists and takes medication to control his diabetes, as well as the other issues. He explained to the Tribunal in great detail the sexual activities in which the couple has engaged, including the limitations of his clinical issues.

    [1] Due to the sensitivity of the condition and privacy concerns, the Tribunal considers it inappropriate to be more specific about the condition in the decision.

16. In relation to the age difference of approximately 40 years, the sponsor stated that for a “Chinese”, it is not a problem. He reiterated that for most “Chinese” people, age is not an issue. He referred to the Chinese philosopher Kongzi (Confucius) and the 50-year age gap between Kongzi’s parents.

17. As to the current status of the relationship, the sponsor stated that he has continued to support the visa applicant and has maintained contact. He stated that the Tribunal needs to consider the case “holistically” rather than focus on minor issues such as the visa applicant’s provision of an incorrect answer. The Tribunal explained to the sponsor that the concern is that when the visa applicant was interviewed by the Department in January 2015 (not 2014 as recorded in the Departmental file), she did not disclose that the couple had met through an introduction agency and she provided a different version of events relating to how they met, namely that they met through a relative. He said she had answered all other questions correctly. He said he had made some mistakes as well such as when answering questions about when they exchanged contact details.

18. The Tribunal asked the sponsor about his will. He said he changed his will about a few months ago nominating Patricia, his adopted sister, as the main beneficiary. Asked why he changed his previous will where he had nominated the visa applicant as the main beneficiary, he stated things ran a “bit low” and there was a period of uncertainty. He said he intends to put her back in the will. He said there were times when they quarrelled and stopped communicating so he changed his will. He gave evidence that over the years, he has sent to the visa applicant in total about AU$280,000. When pressed by the Tribunal, the applicant expressed his doubts about whether the visa applicant has other relationships but he emphasised that he would not be particularly concerned; he referred to their common passion and love for dogs.

19. The visa applicant gave evidence that they met in Singapore in 2013 through an introduction agency. In relation to the Departmental interview in 2015, she initially could not recall her response to the question about how the couple met. She later stated that at the time of the interview, she was very scared and asked for the Tribunal’s forgiveness. She expressed her desire to be with her “husband” so that they can have a family. She confirmed that they last saw each other in 2017 and that the applicant sends her money regularly. She said he has been providing financial assistance and they have remained in regular contact by telephone and WeChat.

20. In regard to the age difference between the couple (she is now 32 and he is 69 years of age), she stated that the sponsor is a good person and that the age difference is not a problem. She stated that she loves and respects him. She confirmed that the couple intends to have children. She confirmed her awareness of the applicant’s medical challenges. The visa applicant rejected the suggestion that she has entered into this relationship for a migration purpose and/or for financial gain; she stated that the matter has been ongoing for years and has been pursued by both parties. She stated she would not be wasting her “youthful years” if the marriage is not genuine. She said she would like to be with her “husband until the day we die”. She asked the Tribunal to give the couple that opportunity.

21. Although the Tribunal is not bound by the findings or reasoning of other Members, the Tribunal respects and gives regard to the opinions of other Members. The Tribunal observes that the previous Tribunal found the sponsor to be “a witness of credit”, and that his “generosity” to the visa applicant is consistent “with his expectations of a future relationship and demonstrates a significant level of trust”.[2] However, the previous Member had concerns about the visa applicant essentially based on the untruthful answers she provided during the Departmental interview relating to how the couple met. The Tribunal shares those concerns but as the sponsor correctly pointed out, the Tribunal must look at the case “holistically”. The Tribunal tested the evidence extensively and although there are concerns, the Tribunal is satisfied that those concerns are insufficient to undermine the core aspects of the partner visa application. The Tribunal found the sponsor to be open, frank and candid; there was no suggestion that he was being untruthful about his experiences or any aspects of the relationship. As far as the visa applicant is concerned, it is correct that she provided to the Department an untruthful version of events relating to how the couple met, but that version was not maintained. She corrected the record and apologised for her wrongdoing. As the Tribunal mentioned to the visa applicant, the provision of false information to the Australian authorities is serious and cannot be underestimated. On balance however, the Tribunal is of the view that it would be harsh and unreasonable to reach an adverse credibility finding for this reason or conclude that this demonstrates an overall capacity for dishonesty casting doubts on the visa applicant’s dealings with the sponsor.

    [2] Decision Record for case number 1508646, at para 51.

22. The Tribunal will now turn to the matters stipulated in reg 1.15A.

    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. As referred to in the delegate’s decision record, there are money transfer receipts provided to the Department showing that money was sent from the sponsor to the visa applicant. The money transfers were sent between 26 October 2014 and 28 December 2014 and come to a total amount of approximately AU$2,500. The delegate’s decision record refers to the interview with the visa applicant who stated that the sponsor sent her money on four occasions that come to a total amount of VND 66 million which is equivalent to approximately AU$3,800.

24. The sponsor told the previous Tribunal that he met expenses for both of them when they were in the same country after their marriage and that he gives the visa applicant about $250 a month to meet her expenses and paid for a dress-making course. He reiterated to the Tribunal his financial commitment to the visa applicant. His evidence is that in total, he has transferred about AU$280,000 to the visa applicant. He made a will leaving her a significant property portfolio and has purchased properties in joint names. He changed his will nominating his adopted sister as the main beneficiary. However, he provided a Statutory Declaration renominating the visa applicant as the beneficiary. Although one might suggest that his motive is to support the review application and to attempt to address the Tribunal’s concerns, the Tribunal gives some weight to the Statutory Declaration. The sponsor also sent to the Tribunal evidence that he has continued to send money to the visa applicant.

25. There is no joint ownership of assets or liabilities. However, given that the parties live in two different countries, the Tribunal does not draw adverse conclusions on that basis.

26. On balance, the Tribunal is satisfied that there is persuasive evidence consistent with the sponsor’s commitment to a relationship with the visa applicant. One might suggest that this does not demonstrate the visa applicant’s commitment to the relationship but that this might be a reason for her to be in the relationship. It is trite to suggest that people enter into relationships for many reasons, including for financial motives, but that does not mean that their relationship is not genuine.

27. The Tribunal is satisfied in these circumstances that the financial aspects are consistent with the parties being in a genuine 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 couple has not shared a household apart from when they stayed at the sponsor’s sister’s home in Singapore. When he was in Vietnam, they stayed at a hotel at night and spent time at the visa applicant’s home during the day. They are not responsible for the care and support of children and do not share housework. They both share their love and passion for dogs.

29. The sponsor owns a number of properties in Sydney and the plan is for the visa applicant to live with him in Australia. The Tribunal is satisfied that the couple has plans for a future shared household. Given the fact that the parties live in different countries, the Tribunal is satisfied that those plans are consistent with being in a genuine spousal relationship.

    Social aspects of the relationship – including whether the 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

30. The visa applicant and the sponsor submitted photographs, including seven photographs of their marriage in Singapore, of the couple and with family and friends.

31. The couple has been living apart for many years and the Tribunal appreciates that as a consequence, the couple has had a limited opportunity to provide further evidence in support of this aspect. On balance, the Tribunal is satisfied that the limited evidence is not inconsistent with being in a genuine spousal relationship.

    Nature of the 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

32. The couple has been married since 2014 and the evidence supports a finding that they have maintained regular contact. The couple has not lived together due to the fact that they live in different countries.

33. The couple gave evidence about their love and commitment to each other. The parties expressed their desire to be together and to have children. After many years of rejections, they have maintained contact and pursued the visa application.

34. The Tribunal questioned the couple about the substantial age difference. Both explained that this is not an issue for them and does not present as a point of contention between the couple. It is inappropriate for the Tribunal to bring morality into that desire and accepts that the couple has a genuine desire and plan to have children.

35. The Tribunal is satisfied that the parties are committed to one another, consistent with being in a genuine spousal relationship.

    Any other circumstances of the relationship

36. There are no other circumstances.

37. Having considered the above matters, the Tribunal finds that the parties have a mutual commitment to a shared life to the exclusion of others, that they are in a genuine and continuing relationship, and that they live together or not separately and apart on a permanent basis. The sponsor is an Australian citizen. The Tribunal therefore finds that the requirements of cl 309.211(2) and cl 309.221 are met.

38. 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

39. 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(2) of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations.

    Antoinette Younes
    Deputy President

    
    

    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).