Thomas (Migration)

[2023] AATA 4730

Thomas (Migration) [2023] AATA 4730 (29 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr John Thomas

VISA APPLICANT:  Ms Jinghua Lei

REPRESENTATIVE:  Ms Rose Chai (MARN: 0319306)

CASE NUMBER:  2102164

DIBP REFERENCE(S):  BCC2018/5727125

MEMBER:Naomi Schmitz

DATE:29 November 2023

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:

·cl 309.211(2) of Schedule 2 to the Regulations; and

·cl 309.221(1) of Schedule 2 to the Regulations.

Statement made on 29 November 2023 at 9:10am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – limited ability to provide one another with financial support – nature of the household – social aspects – nature of the commitment – rapid development of the relationship – geographical separation – communication records – decision under review remitted

LEGISLATION
Administrative Appeals Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 23 December 2020 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 2018 on the basis of her relationship with her sponsor, also referred to in this decision record as 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 Regulations1994 (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 of the Regulations because the delegate was not satisfied that the visa applicant was the spouse of the review applicant, as defined in s 5F of the Act.

   Background[1]

   [1] Departmental file BCC2018/5727125 and delegate’s decision record.

4. The sponsor is currently aged 76 years of age and is an Australian citizen through visa grant. At the time of application, the sponsor declared that he immigrated from Egypt to Australia on 28 October 1964. The sponsor has been previously married, marrying on 5 July 1969 until 5 April 2016, when his first wife deceased. There are two adult sons from the marriage.

5. The visa applicant is currently aged 70 years of age and is a citizen of China. She declared one prior relationship from 14 January 1970 until 25 October 1988, when her first husband deceased. There are four children from the marriage, including three who reside in Australia and one who resides in China.

6. The visa applicant first entered Australia on a Visitor visa (Subclass 676) on 13 February 2010. After her third arrival on 6 July 2013 on a Visitor visa she did not depart until 8 November 2018. She was unlawfully onshore in Australia from 6 January 2014 when her last Visitor visa ceased until 8 November 2018 when she last departed Australia, a total of four years, 10 months and three days. It is not in dispute that the visa applicant was unlawful during this period.

7. At the time of application, the parties claimed that they met in October 2017 at a party in Melbourne. They claimed they became WeChat friends with the help of a translation App. The parties claim they lived together in the sponsor’s Department of Health and Human Services (DHHS) rental property at Ashburton (the Ashburton address). It is claimed that the visa applicant moved in, in approximately November 2017 where she remained until 8 November 2018 when she left Australia. The visa applicant and the sponsor married at Lower Templestowe, Victoria on 29 December 2017. It is not in dispute that the parties are lawfully married.

8. Information indicates that the sponsor has not departed Australia since the visa applicant left Australia on 8 November 2018.

9. The delegate who considered the application noted:

   a.The joint bank account statement from 15 June 2018 to 7 August 2018 covered a limited period of less than two months and was considered of low probative value. It also concerned the delegate given the parties claimed to have been in a married relationship since December 2017;

   b.Whilst the delegate accepted that parties who reside in different countries may be somewhat financially independent, the lack of evidence of shared financial responsibility since the visa applicant’s departure appeared incongruent with behaviour expected of genuine spouses;

   c.No evidence was submitted to substantiate the parties shared their household as spouses such as providing evidence of joint tenancy agreements, joint property ownership, joint utility bills, joint rental receipts or correspondence sent to the same residential address;

   d.The visa applicant departed Australia on 8 November 2018 whilst the sponsor has never departed Australia and at the time of the visa refusal the parties had not met in-person for more than two years;

   e.The photographic evidence depicted the parties on their wedding day only, and with limited people present and therefore did not provide convincing evidence of the social recognition of the parties’ relationship. There was no other evidence provided of the parties undertaking social activities together including meeting other third parties prior to or after their marriage date;

   f.A supporting statement from the sponsor’s neighbour was considered of limited probative value as although it indicated that the witness and his wife had attended the parties’ wedding, it provided no details regarding the parties’ relationship;

   g.The rapid development of the parties claimed relationship (i.e. meeting in October 2017, moving in together in November 2017 and marrying in December 2017) did not reflect the level of consideration that is usual between two persons making a genuine and lifelong commitment to each other and overall raised concerns regarding the genuineness of the relationship. These concerns were heightened due to their being cultural differences and a language barrier between the parties; and

   h.Ten screenshots of the parties’ WeChat communications were provided but did not demonstrate how the relationship had commenced and developed in the timeframe and manner claimed and importantly how the parties had maintained communication since the visa applicant departed Australia in November 2018.

10. Taking into account these matters, the delegate found that the parties were not in a genuine and continuing relationship and therefore the applicant was not the spouse of the sponsoring partner as defined in s 5F of the Act. Accordingly, the delegate found that the applicant did not meet the criteria in cl 309.211 and cl 309.221 and refused the application.

    Application for review

11. On 23 February 2021, the review applicant applied to the Tribunal for a review of the refusal decision. The review applicant provided a copy of the delegate’s decision record to the Tribunal.

12. On 16 October 2023, the Tribunal invited the review applicant under s 360(1) of the Act to appear in-person at a Tribunal hearing commencing at 9:30 am (VIC time) on 2 November 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the review applicant. The invitation advised the review applicant to provide all documents intended to be relied on to establish that the relevant criteria was met by 26 October 2023.[2] The letter further advised that if the review applicant did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the review applicant to appear before it. The review applicant was represented in relation to the review.

    [2] Migration and Refugee Division Practice Direction dated 22 February 2023.

13. On 22 October 2023, the review applicant returned a signed response to hearing invitation indicating that he wished to call evidence from two witnesses, including his son Mr Elias Thomas and the visa applicant’s daughter (the sponsor’s claimed stepdaughter) Ms Jinghua Lei. On 23 October 2023, the Tribunal requested statements from the above witnesses so that the Tribunal Member could consider the relevancy of their evidence and if it was necessary that they give evidence at hearing. Statements were not provided to the Tribunal. Neither of the witnesses appeared at hearing with the review applicant advising that they were unavailable.

14. On 26 October 2023, as a matter of procedural fairness the Tribunal wrote to the review applicant advising that the Tribunal Member had reviewed information submitted to the Tribunal and requested that the review applicant provide by 30 October 2023 the following information:

    a.To identify in the July to August 2023 financial records any relevant transactions, including any funds transfers from the sponsor to the offshore visa applicant;

    b.Any financial statements evidencing the joint pooling of funds during the parties’ claimed cohabitation, for example, an account where your pension was deposited and withdrawals from the account showing the payment of your and the visa applicant’s household expenses, as the two months of statements provided did not support the parties’ claims;

    c.The DHHS rental rebate letter did not identify that the visa applicant was residing with the sponsor during the parties’ claimed period of cohabitation, rather it requested further information from the sponsor. The sponsor was asked to clarify what the letter claimed to support; and

    d.The sponsor claimed to have notified various government agencies of his relationship with the visa applicant including Centrelink. Whilst there was a Centrelink letter on the Department file, it did not support the parties’ claims that the relationship was recognised by Centrelink. The Tribunal requested any documents which supported that the parties’ relationship was recognised by government agencies.

15. In response the review applicant provided the following:

    a.A statement from the visa applicant dated 23 October 2023;

    b.A letter from DHHS to the sponsor dated 3 August 2018 requesting further information to support the sponsor’s rental rebate. It requested: visa details for Jinghua Lei confirming her status in Australia and bank and wage statements for Jinghua Lei;

    c.Westpac Bank Statements (account holders unknown) from July to October 2023;

    d.Representative’s submissions dated 30 October 2023;

    e.Statement from the sponsor dated 30 October 2023;

    f.Westpac Bank statements in the sponsor and visa applicant’s name between 15 June 2018 and 14 December 2018;

    g.Westpac Bank statements in the sponsor and his first wife’s name between 9 February 2018 and 11 February 2019;

    h.Westpac Bank account statement in the sponsor’s name from 30 May 2018 and 21 December 2018;

    i.Request for information letter from Centrelink to the sponsor dated 14 May 2019 a completed MOD P form for Jinghua Lei and all supporting documents;[3]

    j.Tenancy rental account summary addressed to the sponsor only;

    k.Eastern Health Discharge Summary dated 26 February 2021 (notation: no one at home – wife currently in China, unable to travel back to Australia given COVID-19);

    l.Eleven pages of WeChat communications between the sponsor and visa applicant;

    m.A handwritten receipt dated 5 July 2018 in the sum of $15.00 for a Membership fee at the Ashburton Chinese Seniors Fellowship; and

    n.A MOD P Form for the visa applicant signed by the visa applicant on 15 May 2019.

    Information provided to the Tribunal by the review applicant

    [3] An MOD P form is a form regarding partner details if a person is claiming or receiving payment or a concession card – - accessed on 28 November 2023.

16. On 24 January 2022, the visa applicant applied for a Visitor (Subclass 600) (family sponsored) visa to visit the sponsor in Australia, but that the Visitor visa was refused on 22 June 2022.

17. The sponsor claims that he is afraid of flying and therefore has not travelled to China to visit the visa applicant since her departure from Australia in November 2018. The parties concede they have not had face-to-face contact in approximately five years. However, the parties claim they communicate on a daily basis by WeChat including by message and video call and have maintained close contact with each other during their separation.

18. In relation to the financial aspects of the relationship, the parties rely on the fact that they have a joint Westpac bank account. The sponsor is a pensioner and in receipt of a government pension. The visa applicant is employed as a cook in China and in receipt of a monthly income of RMB2,500 equivalent to AUD530. The parties claim that when they resided together, they pooled their funds together and deposited their money into their joint account and paid their household expenses.

19. Presently, the sponsor deposits his pension payments into the parties’ joint account and uses it to pay his daily living expenses. The visa applicant does not deposit her income from China into the parties’ joint account. It is claimed this is due to her being a low-income earner and her having little income remaining to deposit into the parties’ joint account. It is also claimed it would be ‘inconvenient’ and ‘cumbersome’ for the visa applicant to use their Westpac account in China due to exchange rates and fees if she deposited her wages from China into the Westpac joint account. The review applicant also claims to have sufficient money from his pension to support himself financially without the support of the visa applicant.

20. The parties claim that the visa applicant through her daughter Ms Xie on 17 October 2023 deposited $106.00 into the parties’ joint account as a gift to the sponsor. The visa applicant claimed that she purchased a motor vehicle for the sponsor to use and that he continues to drive the motor vehicle. The parties claimed the visa applicant’s daughter Ms Xie pays for the motor vehicles’ Vic Roads registration fees, maintenance, and insurance expenses. The sponsor claims that when he has extra cash that he sends mail parcels containing Australian products such as milk powder, medicines, and her favourite coffee.

21. In relation to the nature of the parties’ household, the parties claim that they commenced residing together in or about November 2017 and that they resided at the sponsor’s government rental apartment at Ashburton until 8 November 2018 when the visa applicant returned to China.

22. The sponsor claims that he notified Centrelink that he was married to the visa applicant and that Centrelink recognised their married relationship. In support the sponsor relied on a letter dated 14 May 2019 where Centrelink ‘requested information’ regarding the sponsor’s wife in relation to his government pension. This is referred to in [15i] above.

23. The sponsor further claims that he notified DHHS that he was married to the visa applicant and sought approval for her to reside at his Ashburton address. The sponsor claims that DHHS recognised that the visa applicant was residing with the sponsor and charged full rent for a short period of time from 3 February 2019 until 7 April 2019 and that there were rental rebate credit adjustments on 10 April 2019 because the visa applicant had departed Australia.

24. The parties claimed that when the visa applicant resided with the sponsor that they shared household duties together including cleaning, laundry, and grocery shopping. The parties claimed that the visa applicant would cook Chinese cuisine for the sponsor because he enjoyed Chinese food.

25. As noted in [4] and [5] above the parties have children from previous relationships. It is claimed that the visa applicant's daughter would visit the sponsor to ensure he is doing well, and that she also invited the sponsor to her house for meals and to enable him to spend time with her children. The parties claim that they communicate with each other on a daily basis through WeChat voice and video calls and text each other every day. The parties claim that they provide each other with emotional support.

26. In relation to the social aspects of the parties’ relationship, they claim they invited family and friends to their wedding registration ceremony and wedding lunch at Tao’s restaurant in Bulleen.

27. The parties claim that the sponsor notified Centrelink that he was married to the visa applicant. The sponsor claims that his age pension has been assessed on the basis that he was married to the visa applicant. In support the sponsor relies on a request by Centrelink for the visa applicant to complete a MOD P form to the DHHS dated 14 May 2019 due to being married to the visa applicant. The visa applicant claims to have completed a MOD P form and lodged it with Centrelink.

28. The sponsor claims he notified DHHS that he was married to the visa applicant and residing with her. The sponsor also claims that he made an application for a rental rebate for the visa applicant when the visa applicant cohabited with him.

29. The parties rely on statutory declarations from the visa applicant’s daughter Ms Xie, the sponsor’s son Mr Thomas and a friend Mr Zhan Zhi Wu (Mr Wu) from the Ashburton Chinese Senior Friendship Association as evidence that the parties have declared their married relationship and are accepted as a couple by their family and friends in Australia. Whilst the sponsor has not physically met the visa applicant’s child in China, the parties claim that he has met them via WeChat.

30. The visa applicant and sponsor joined the Ashburton Chinese Seniors Fellowship Group at Ashburton and claim to have been active members. In support a receipt in the sum of $15.00 for both the sponsor and applicant was provided and is referred to in [15m]. The parties claim that they attended social activities for seniors such as singing, dancing, cooking, and sharing food and playing table tennis.

31. In relation to the nature of the parties’ commitment to one another, the parties rely on their Westpac joint bank account and pooling their funds together to pay for household expenses, including during the time of their claimed cohabitation.

32. The sponsor claims that he notified Centrelink that he was married to the visa applicant. The sponsor further claims that he informed DHHS that he was married to the visa applicant, residing with the visa applicant and made an application for a rental rebate for the visa applicant.

33. The parties claim that they provide each other with care and emotional support. The parties claim that they communicate with each other every day via WeChat via voice and video calls and text message. They claim to have maintained close contact despite their geographical distance and view their married relationship as long-term and rely on the fact that they have been married for approximately six years. The sponsor claims he is afraid of flying and for this reason has been unable to travel to China

    Hearing

34. The review applicant appeared before the Tribunal on 2 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who gave evidence via telephone from China. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

1. Regrettably, a large portion of the hearing was spent examining the parties regarding their claims which on the evidence available to the Tribunal could not be substantiated and significant concessions were made both during and post-hearing. Whilst the Tribunal Member originally had concerns regarding the parties’ credibility and reliability, due to material submitted post-hearing, including the marriage certificates with DHHS date stamps referred to in [38c] below, the Tribunal is prepared to accept that this is largely due to the conduct of the representative. It is evident that the representative unequivocally accepted instructions from the parties which could not be corroborated by credible evidence and various claims being elevated to a status that they did not deserve, for example, it was claimed the visa applicant purchased the sponsor a motor vehicle, when in fact the sponsor only had the use of a motor vehicle owned by his claimed stepdaughter’s company, which had never been registered or insured in his name and was no longer kept at his property. Such claims were exposed at hearing and diminished the sponsor’s and visa applicant’s credibility. Another example was the claim that the parties were recognised by government authorities, when in fact the sponsor had only attempted to inform them, but the relationship was never recognised.

2. At the conclusion of the hearing, the representative sought further time to submit information from Centrelink confirming that the visa applicant was residing with the sponsor when in Australia. The Tribunal Member carefully considered but declined the representative's request which she did not regard as reasonable. The Tribunal Member noted that the visa application was lodged approximately five years ago and the visa was refused approximately three years ago and therefore the parties had been put on notice of the reasons for the visa refusal and had had ample time and opportunity to collect and submit evidence in support of the application for review. The Tribunal Member further noted that the Tribunal in its letter dated 26 October 2023 referred to in [14] above had requested further information, including from Centrelink and therefore the review applicant had been put on notice before the hearing. The Tribunal Member also explained that she was required to uphold the Tribunal’s statutory objective of providing an expeditious mechanism for review pursuant to s 2A of the Administrative Appeals Act 1975 (Cth). The Tribunal Member confirmed that although she was not prepared to grant an extension to file information, that the Tribunal would consider all information up until the handing down of decision.

3. At the conclusion of the hearing, the representative passed to the Tribunal Member a DHHS receipt dated 19 April 2018 which was stapled to a letter dated 3 August 2018 referred to in [15b] in support of the sponsor’s claims that he had notified DHHS that the visa applicant was residing with him when in Australia. The Tribunal Member noted that the receipt had not been provided to the Tribunal and advised that if the review applicant was relying upon it, it should be submitted formally to the Tribunal. The Tribunal Member raised with the representative and review applicant that the receipt date (i.e. 19 April 2018) did not correspond with the date of the letter (3 August 2018). Further, due to it being stapled at an unknown time, the Tribunal could not be satisfied that it was a contemporaneous and accurate record; that it related to the rental rebate letter; and consequently, accept it as supportive evidence of the sponsor’s claims. These concerns are further heightened by the fact that the receipt handed to the Tribunal Member at hearing was attached to a subsequent rental rebate application form dated 19 April 2018 filed post-hearing and referred to in [38a] below.

4. Post-hearing the Tribunal received a number of documents including:

   a.A rental rebate application form signed on 19 April 2018. It declared the date in which the visa applicant moved into the sponsor’s Ashburton address as 29 December 2017. The basis for the rental rebate was someone joining I got married. Attached to the application for rental rebate was the receipt dated 19 April 2018 which was the same receipt shown to the Tribunal Member at hearing but stapled to a letter dated 3 August 2018;

   b.WeChat communications (partially in English, majority in Mandarin and not translated);

   c.A Births, Deaths and Marriages marriage certificate and a decorative marriage certificate both with DHHS Box Hill stamp and date 19 April 2018;

   d.A statutory declaration (attached with annexures relating to motor vehicle) from the visa applicant’s daughter Ms Xie which made various concessions including:

   i.That Ms Xie prepared and lodged the visa application without the use of a qualified migration agent or lawyer and due to her poor English she got various dates wrong including the date in which the parties first met and commenced their relationship, the date in which the parties commenced residing together (November 2017 not September 2017 this was due to the visa applicant staying at the sponsor’s property on weekends from September 2017 before moving in full-time);

   ii.That the visa applicant had never purchased a motor vehicle for the sponsor, rather he had the use of a car from November 2017 until 2023 and that the motor vehicle was owned by Ms Xie’s company and that she pays the car registration, insurance, parking/speeding fines and car repairs. The motor vehicle was an intended gift from Ms Xie’s mother but as she left Australia it was decided that the sponsor could have use of the motor vehicle; and

   iii.Ms Xie gave the visa applicant $200 cash to support the parties financially (not deposited into the parties’ bank account); and

   e.Medical document regard Ms Xie’s third pregnancy.

   Evidence at hearing

5. At hearing the sponsor confirmed that he arrived in Australia in October 1964 by ship. The sponsor confirmed that he attends the doctor for various medical conditions and is prescribed various medications. The Tribunal Member enquired whether he had asked his medical practitioner to be prescribed anti-anxiety medication to facilitate air travel. The sponsor did not directly answer the question, replying that he takes eight tablets a day, has never travelled by air in his life, has high blood pressure, has a phobia of flying and at his age he did not wish to travel and that he was not going to travel.

6. The Tribunal Member asked why he had not made alternative travel transportation arrangements to China such as by ship, noting this was the mode of transport in which he had immigrated to Australia. The sponsor stated because of the ‘latest news’, by this he was referring to recent world events. He also claimed that he did not have the money and if he was stuck in China ‘who would provide for him?’. He also claimed that he has to take medication every day due to high blood pressure. The Tribunal Member replied that he could take his prescription medication with him and did not understand how this would constitute an impediment to international travel. The sponsor responded it was due to his ‘gut feeling’, that he did not understand why he had to travel to visit the visa applicant and that she had stayed with him for 10 months.

7. The Tribunal Member asked the sponsor to explain why he would not put his wife's needs before his personal flight fears. The sponsor claimed that he had mobility issues and referred to knee replacement surgery in 2021 where he had home care provided. The Tribunal Member noted that there was no medical evidence before the Tribunal to support that the sponsor cannot fly due to any health condition, rather it simply stated that the sponsor was afraid of flying. The sponsor was asked whether there was anything he wished to say in response. The sponsor conceded that the letter only stated that he was afraid of flying. This same question was put to the visa applicant who stated that despite her suggesting that he visit China, that he was unwilling to travel and that he was getting older.

8. The sponsor confirmed that his statement submitted to the Tribunal dated 11 August 2023 was true and correct. He also confirmed that the contents of the visa application dated 19 December 2018 were also true and correct. In the sponsor’s statement at [5] he claimed he first met the applicant in April 2017 at a garden party yet in the visa application it was claimed the parties met on 1 October 2017. This was repeated in the representative’s  submissions. The Tribunal Member asked the sponsor to explain the reason for the inconsistency. The sponsor claimed that his stepdaughter had organised the visa application and she may have got some details wrong and claimed that he sought a matchmaker in Box Hill in March 2017. He stated the matchmaker offered to find him a suitable wife and identified two ladies, one of which was the visa applicant. He claimed that he met the visa applicant in April 2017 in Box Hill ‘somewhere’.

9. The sponsor was asked to confirm when the visa applicant moved into his Ashburton address. He replied, ‘sometime at the end of November or something’. The Tribunal Member noted in the visa applicant’s daughter’s statutory declaration that she claimed that the visa applicant moved in, in September 2017. He claimed that she knew the visa applicant was ‘coming and going’ from his home and ‘maybe from that time she thought she was there’ [at his address]. The visa applicant claims she moved into the Ashburton address in November 2017. The Tribunal notes in the rental rebate application filed post-hearing at [38a] states that the visa applicant moved in on the day of the parties’ marriage namely 29 December 2017.

10. The Tribunal Member asked the sponsor where and when he proposed to the visa applicant. The sponsor stated, ‘I don’t recall exactly’ and replied, ‘you put me on the spot’. The Tribunal Member put to the sponsor that marriage was not an everyday event like brushing one’s teeth or combing one’s hair and gave him a further opportunity to respond. The sponsor stated that he could not recall, stating ‘I’m eccentric…I don’t plan for it’ [the marriage]. The visa applicant was asked the same question. She originally provided the parties’ wedding date, and the question was re-put to the visa applicant who claimed the proposal was on an unknown date and place in November.

11. The Tribunal Member asked the parties why they decided to marry so soon after meeting and that the decision raised concerns as to the genuineness of the parties’ relationship, given marriage is one of the biggest commitments of a person’s life. The sponsor replied ‘how do you measure love?, how do you explain it?, I met the lady, saw a likeness, I used to bring tapes from the library for her, she doesn’t like lipstick, is a plain lady like me, that’s the one and that it. We are like teenagers. We connected and found love together’. The visa applicant replied that they understood each other and got to know each other emotionally. She referred to the November proposal and said he asked whether she wished to go ahead with the marriage.

12. The Tribunal Member referred the sponsor to [11] of his statutory declaration dated 11 August 2023 where he stated, ‘I knew that Jinghua had no permanent visa to stay in Australia and I told her that I was prepared to sponsor her to live in Australia with me’. The Tribunal Member indicated that this suggested to the Tribunal that the relationship was not genuine but to facilitate a migration outcome. He was asked whether he wished to respond. The sponsor replied, ‘I love her. Is that not good enough? She's my wife I already married to her'.

13. In relation to the parties’ claims that they communicate on a daily basis, the Tribunal Member noted that the telecommunications records did not support these claims as the records did not show the dates and times of communication. The sponsor was asked whether he wished to say anything in response. The sponsor invited the Tribunal Member to examine his mobile phone. In response, the Tribunal Member stated that that was inappropriate and that it is for the review applicant to provide any information in support of the application for review to the Tribunal. The sponsor stated that the parties had communicated by WeChat for almost five years and claimed that the records only go back two years and were thereafter erased.

14. The Tribunal Member noted that it was claimed that the parties pooled their financial funds together when they resided together. The Tribunal Member asked the sponsor where the visa applicant got her funds, given she was an unlawful non-citizen with no work rights. The Tribunal Member also asked what evidence the sponsor relied upon to support that she financially contributed to the joint bank account. The sponsor replied that the visa applicant’s daughter would give her cash at the end of every month in the sum of approximately $200. The visa applicant was asked the same question. She claimed that they were from her savings and that she brought money over from China.

15. The Tribunal Member referred to the s 359AA natural justice provisions and identified the evidential inconsistencies in [48] above and explained that this would be a reason or a part of the reason for the Tribunal affirming the decision under review. It was relevant to the review, as it raised doubts that the parties were genuine spouses and had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as where the visa applicant was obtaining money from was information that would be expected to be within the knowledge of a genuine spouse. The sponsor was advised that he may seek additional time to comment on or respond to the information. The sponsor replied that she may have brought money from China but that he thought it was from her daughter. He stated ‘I don’t dig too much. She is going to be my wife’.

16. The Tribunal Member stated the Tribunal accepted that the parties had a joint bank account. It was claimed by the parties that they lived together and pooled their funds together depositing money into the parties’ joint account which was used to pay for their household expenses. The Tribunal Member explained that she had carefully perused the financial records but could only see deposits from a telephone service which did not identify the payee. The Tribunal Member stated that the Tribunal would be assisted if the sponsor could identify the transactions between November 2017 and 2018 where it is claimed the visa applicant deposited funds into the parties’ account. The sponsor stated the visa applicant was given ‘cash’ which was used for the household and that the telephone deposits were from the sponsor.

17. The Tribunal Member asked the sponsor to identify any transactions which supported that he had transferred funds to the visa applicant since her departure from Australia. The sponsor confirmed that he had not transferred any funds. The Tribunal Member asked why not. The sponsor replied that he was prepared to provide her with financial support but that she refused to accept any money. He however claimed he had sent her presents such as hair products. The Tribunal Member asked the sponsor given he has been able to send other items including milk powder and eye lubricant, why he would not send money. The sponsor again replied that he would like to send the visa applicant money but that she stopped him. The visa applicant was also asked why she had not sent any money to the sponsor even taking into account her claims of being a low-income earner. This was particularly so, given the parties have been separated for five years, the parties claims that the relationship had continued and therefore the Tribunal would expect some transfers even if in a nominal sum. The visa applicant replied that her income in Australia only sustained their daily expenditure and that she had offered to send the sponsor money, but he claimed he did not need money.

18. The Tribunal Member noted that the parties claimed that the visa applicant’s daughter deposited $106.00 into the parties’ joint account on 17 October 2023. The Tribunal Member noted this was the day after the review applicant was invited to attend a hearing. The Tribunal Member asked why the stepdaughter deposited funds the day after a hearing invitation was sent. The sponsor claimed that it had nothing to do with the hearing invitation and it was in relation to Chinese festivities, the Dragon Festival, he stated ‘I don't need your money honey’ but that the visa applicant had insisted that he be given something. The visa applicant was asked the same question. She replied that she rarely transferred money to her husband and that they tried do it on WeChat.

19. The Tribunal Member asked the sponsor to identify any financial evidence to support the parties’ claims that the visa applicant had purchased a motor vehicle for the sponsor. The sponsor confirmed there was no financial evidence to support that the visa applicant had purchased a motor vehicle for him, rather the visa applicant’s daughter offered the sponsor the use of a motor vehicle which she ran through a business with her husband.

20. The Tribunal Member asked whether there was any evidence to support that the visa applicant’s daughter pays for the motor vehicle registration. The sponsor replied that she has paid for it three or four times. The Tribunal Member asked whose name the car is registered in. The sponsor replied in his stepdaughter’ business’ name. The Tribunal Member asked whose name the car was insured in. He replied, ‘It must be them… I was the driver’. The Tribunal Member asked where the motor vehicle is kept. The sponsor originally replied that the motor vehicle was kept at his property but that the motor vehicle has since been returned and was no longer in his possession. He stated that he has since obtained another motor vehicle through the assistance of his brother.

21. The Tribunal Member noted the parties’ claims that they did not send money to one another due to the currency exchange rate and related transfer fees and asked them how much money they would have sent to each other and the commission fee incurred. Both parties did not directly answer the question, stating that they each would not accept any funds from the other. The Tribunal Member also asked while they would not send money monthly in larger sums rather than numerous small transactions to avoid additional fees. The sponsor replied that it was hard for him to transfer money and that he had to use the visa applicant’s daughter. The visa applicant claims that the sponsor did not require money and claimed that she had once sent him RMB500 and that the sponsor did not know how to retrieve funds.

22. The Tribunal Member referred to the request from Centrelink for further information in its letter dated 14 May 2019. The sponsor was asked to identify any evidence where Centrelink had acknowledged the parties’ spousal relationship. The Tribunal Member put to the sponsor that a request for further information was not the same as acknowledgement of the relationship. The sponsor claimed that he attended Centrelink and declared his wife and marriage and asked what the next step was. He claimed that his pension changed.

23. The Tribunal Member put to the sponsor that there was no evidence before the Tribunal to support that the sponsor’s pension had been assessed or adjusted on the basis of his marriage and asked if there was anything he wished to say. The sponsor did not directly engage with the question and stated that when his wife returned to Australia, they ‘would take procedures in relation to this’.

24. The Tribunal Member noted the sponsor’s claims that he had notified DHHS that he was married to the visa applicant but noted there was no evidence before the Tribunal that DHHS had acknowledged the marriage. The sponsor was asked if he wished to say anything in response. The sponsor claimed that he had an adjustment to his rent. The Tribunal Member noted that the tenancy rental account summary was in the sponsor’s name only and could not see any transactions which supported the sponsor’s claims. The sponsor was unable to assist the Tribunal further.

1. The Tribunal Member referred to the visa applicant overstaying her last Visitor visa from 6 January 2014 until 8 November 2018 in which she was an unlawful non-citizen. Information submitted by the parties claimed that this was due to the visa applicant being distracted with her grandchildren and her daughter’s third pregnancy. The Tribunal Member put to both the sponsor and visa applicant that her past illegal migration status raised concerns that the parties’ marriage was a marriage of convenience rather than genuine and if there was anything they wished to say. The sponsor stated, ‘I don’t see it that way’. The visa applicant denied that the parties’ relationship was false and asserted it was genuine. She explained that she was really lonely before meeting the sponsor and that while she had four children, that they had all grown up and had their separate families and that she was therefore looking for a partner to share her life with. She stated that the parties were satisfied with each other.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in the present case is whether the applicant is the spouse, as defined in s 5F of the Act, of the sponsoring partner.

   Whether the parties are in a spouse or de facto relationship

4. 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.

5. ‘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 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?

6. 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). In support both a decorative and a certified marriage certificate from the Births Deaths and Marriages Registry was provided to the Tribunal confirming that the parties married on 29 December 2017.

   Financial aspects

7. The visa applicant and the sponsor do not have any individual assets and therefore it is not surprising, that they do not jointly own any assets or have any significant joint liabilities. The sponsor is retired, impecunious and in receipt of a government pension.

8. The sponsor has been a long-term resident in public housing. For the past five years he has resided at his Ashburton address provided through DHHS. He was already residing at the Ashburton address when he met the visa applicant. Due to the sponsor being a long-term resident at the Ashburton address, all rent and utility bills are in his name and paid by him and the Tribunal accepts that he has not felt the need to change the arrangement. The Tribunal also understands that the sponsor has retained this arrangement due to government eligibility criteria, whereby in order to be eligible for social housing you must be an Australian citizen and permanent resident.[4]

   [4] - accessed on 14 October 2023.

9. The Tribunal accepts that the visa applicant moved into the address in November 2017 and that the September 2017 date provided in the visa application by the visa applicant’s daughter was due to her observations of the visa applicant staying at the sponsor’s address on weekends prior to her moving in on a permanent basis. The Tribunal accordingly makes no adverse finding. Whilst a December 2017 date was provided in a DHHS application form, the Tribunal is prepared to accept that this was due to the parties using their wedding date. Again, the Tribunal is prepared not to make any adverse finding.

10. The Tribunal accepts that the sponsor attempted to notify DHHS of the applicant residing at the Ashburton address, and in support relied upon a rental rebate application form and marriage certificate referred to in [38a] and [38c] above and places some positive weight in the visa applicant’s favour. Regrettably, both the sponsor and representative attempted to assert that the parties were recognised by various government agencies as a married couple, including DHHS and Centrelink and referred to changes in the sponsor’s rental rebate and pension, which were not supported by the evidence i.e. there were no records to show what the sponsor was being charged before his claimed cohabitation with the visa applicant and the basis for any rent reduction after the visa applicant departed Australia and no pension records were provided both pre and post relationship. As indicated in [35] above, the Tribunal is prepared to attribute blame for this to the representative for not getting full and proper instructions and records to support these claims.

11. Whilst the Tribunal accepts that the parties had a joint bank account, financial records show that only the sponsor’s pension was deposited into this account and that there was no financial contribution by the visa applicant. Again, this was an example of the parties and representative attempting to elevate their claims beyond a level that they deserved and providing financial records in the hope that the Tribunal would not scrutinise the transaction history. Again, the Tribunal is prepared to attribute blame on the representative, with the sponsor appearing a simple, yet honest witness.

12. Despite this unsatisfactory conduct, the Tribunal is prepared to accept that the visa applicant was given cash by her daughter which the parties used to finance their life. Whilst there was some inconsistency at hearing as to where the visa applicant obtained money referred to in [48] and [49] above, the Tribunal is prepared to accept that due to the visa applicant’s limited education and based on the post-hearing statutory declaration that the visa applicant was given cash by her daughter. The Tribunal is also prepared to accept the sponsor’s evidence, which was given in a frank and genuine manner.

13. Whilst the Tribunal found it highly unusual that the parties had not transferred money to one another since the visa applicant left Australia in November 2018, the Tribunal is prepared to accept that the parties have the ability to financially support themselves and that due to their respective personal financial circumstances, with the sponsor being in receipt of a government pension and the visa applicant being a low-income earner. Accordingly, the Tribunal places no adverse weight on this matter and accepts that they have a limited ability to provide one another with financial support. Communication records also support that the parties in the interim period have provided love and emotional support to one another in other ways. Mail correspondence also shows that the sponsor has sent various goods to the visa applicant which the Tribunal places positive weight on. Whilst the Tribunal Member initially found the transfer of AUD106 to the sponsor somewhat unusual and proximate to the hearing invitation, the Tribunal is prepared to accept it was due to Chinese festivities and notes the Dragon Festival was proximate to this time, being between 28 September 2023 and 2 October 2023.[5]

    [5] – accessed on 24 November 2023.

14. The Tribunal does not accept that the visa applicant purchased the sponsor a car, however, is prepared to place some positive weight on the fact that the sponsor has had the use of the motor vehicle and further that he is regarded as the visa applicant’s spouse and treated as a family member, which goes to support the social aspects of the parties’ relationship discussed below.

15. Overall, the Tribunal finds the financial aspects of the relationship support a finding that both at the time of application and at the time of decision, the parties were and continue to live together in a genuine and continuing relationship with a mutual commitment to a shared life together.

    Nature of the Household

16. Due to the DHHS rental rebate document and marriage certificate filed post-hearing and referred to in [38a] and [38c] above, in addition to the letter from DHHS requesting further information referred to at [15b] the Tribunal accepts that the parties resided together as claimed and made efforts to notify various government authorities, although these efforts did not amount to the relationship being officially recognised for some unknown reason. The Tribunal is also prepared to accept that based on the parties’ oral evidence at hearing that they intend to reside together should the visa be granted. This is somewhat supported by communication records filed post-hearing showing that the parties regularly communicate.

17. As already indicated in this decision record, the sponsor’s accommodation and utilities were and continue to be in his name due to being a long-term public housing tenant and eligibility criteria. The Tribunal accepts the contents of the statutory declarations that the parties resided together and undertook household duties, including the visa applicant cooking for the sponsor and the sponsor regularly visiting the visa applicant’s daughter and grandchildren as depicted in photographic evidence.

18. Overall, the Tribunal finds that at both the time of application and at the time of decision, the parties were and continue to live together in a genuine and continuing relationship with a mutual commitment to a shared life to the exclusion of all others.

    Social aspects

19. Whilst the photographic evidence was limited, based on the sponsor’s attempts to notify various government agencies of the parties’ relationship discussed above, various statutory declarations and the sponsor having the use of a motor vehicle, the Tribunal is prepared to accept that the parties represent themselves to family and the community as being in a genuine and continuing relationship. Whilst the Ashburton Chinese Seniors Membership receipt lacked detail the Tribunal is prepared to place some weight in the visa applicant’s favour. Communication records filed post-hearing also support that the parties’ are in a genuine relationship, with the sponsor discussing various health ailments and general day to day activities which is consistent with the parties being in a spousal relationship.

20. Overall, the Tribunal is satisfied that the social aspects indicate that the parties are genuine spouses.

    Commitment to each other

21. The Tribunal accepts that this is a longstanding relationship now of approximately six and a half years duration. The Tribunal accepts the sponsor’s evidence that the parties first met on or about April 2017 and that the particulars provided by the visa applicant’s daughter were incorrect for reasons already outlined in this decision record. Whilst the parties resided together for approximately one year, and despite the parties geographical separation, based on communication records and the parties evidence at hearing, the Tribunal is prepared to accept that the parties have continued with their relationship and remain committed to one another. Medical records support that the sponsor has declared the visa applicant as his spouse and regards her as such and he gave evidence that he wanted her to return so he was not lonely and so they could care for one another in their old age.

22. Whilst the Tribunal Member had some concerns regarding the sponsor not visiting the visa applicant, the Tribunal is prepared to accept that the visa applicant is afraid of undertaking air travel. The Tribunal does not accept this is due to any medical condition as it was not supported by any evidence. The Tribunal is also prepared to accept this based on travel movement records obtained by the Tribunal which show the sponsor since immigrating to Australia has never departed.

23. The Tribunal has carefully considered the parties’ statements, the supporting statutory declarations from family and friends and various documentary evidence that was submitted in support. Overall, the Tribunal is satisfied that the parties have displayed the degree of companionship and emotional support which would be expected for parties who have a mutual commitment to a shared life to the exclusion of all others and that the relationship is genuine and continuing. The parties gave evidence of wishing to remain together into their old age and enjoying the remainder of their lives together and considered their relationship as long-term.

    Conclusion

24. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

25. For the reasons above, the Tribunal finds the visa applicant meets the time of application criteria in cl.309.211(2). As the visa applicant continues to meet this criteria at the time of this decision the visa applicant meets cl.309.221(1).

26. 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

27. 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; and

    ·cl 309.221(1) of Schedule 2 to the Regulations.

    Naomi Schmitz
    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).