_, __­____«­__€€VM _­____«{Hwang (Migration)

[2021] AATA 4427

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__­____«­__€€VM _­____«{Hwang (Migration) [2021] AATA 4427 (15 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yeonhwa Hwang

CASE NUMBER:  2018512

DIBP REFERENCE(S):  CLF2013/192819

MEMBER:Meredith Jackson

DATE:15 November 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 15 November 2021 at 4:01pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Federal Circuit Court remittal – genuine relationship – living together, or not living separately and apart on a permanent basis – validly married – living in different states or countries for more than half of marriage – study, work and COVID-19 restrictions – joint tenancy agreement but no joint assets or liabilities or pooling of financial resources – when living together, sharing accommodation with other people – statements from family members and friends – long-term aspect of nature of commitment – relationship of convenience for migration outcome – married days before visa applicant’s working holiday visa expired and applied for partner visa the next day – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 5CB, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 801.221(2)

CASE
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 December 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 July 2013 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 applicant was not the spouse or de facto partner of her sponsor as defined under sections 5F and 5CB of the Act; and was not satisfied that the applicant met subclause 801.221(2) of the Regulations; therefore the applicant did not meet the legislative requirement for the grant of a subclass 801 visa as specified in clause 801.221.

4.    On 9 March 2020, the Tribunal, differently constituted, affirmed the decision to refuse the grant of the visa: Tribunal reference 1732004. The applicant subsequently applied to the Federal Circuit Court of Australia for judicial review. The Court found the decision was affected by jurisdictional error in that the Tribunal failed to consider reg 1.15A(3)(d)(iv) before coming to the conclusion that there was not a genuine spousal relationship.

5.    The applicant appeared before the Tribunal on 9 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Gabriel Bom and the sponsor’s sister, Ms Jinsol (Sophia) Buhm. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages, however none of the participants chose to utilise the services of the interpreter to assist them and the hearing proceeded in English.

6.    The applicant was represented in relation to the review by her registered migration agent.

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

BACKGROUND

8.    The applicant is Yeonhwa Hwang, aged 30, a national of the Republic of Korea. She first came to Australia in August 2012 holding a working holiday visa that was due to cease on 1 August 2013. The sponsor is Gabriel Bom (formerly Jinwon Buhm), also born in Korea, also aged 30 and an Australian citizen by 2016 grant. The parties claim they met as friends on 14 October 2012 on Gumtree. They married in Perth on 29 July 2013 and applied for a partner visa the following day. Ms Hwang was granted a provisional partner visa on 19 August 2013. The applicant commence to study engineering in Perth. She now works as a pharmacy assistant at the Wesley Pharmacy in Brisbane, having retrained. Mr Bom who commenced but has not completed tertiary degrees in engineering and pharmacy, has been resident in China since February 2020, where he claims to be running his own gymnasium business. The parties have physically lived together for less than half of their eight years of marriage. On their evidence they have either been in separate States of Australia, or separate countries. They claim, however, that they have never been truly apart; when in different places, they have maintained their relationship through visits and on the internet and they are usually in touch every day. The parties gave evidence that when Mr Bom returns to Australia, they will try and buy a house together and start a family. They claim to be in the relationship for the long term. The applicant argues that their relationship is different but genuine and has been assessed unfairly against ‘societal norms’.

ISSUES AND LAW

9.    There is a two stage process for onshore Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. Ms Hwang’s provisional visa was granted on 19 August 2013 and it expired on 18 December 2017 when the permanent visa was refused. The Tribunal is considering the second stage, the permanent visa application.

1. The issue in the present case is whether the applicant at the time of application and the time of this decision, is the spouse or de facto partner of the sponsor as defined.

Whether the parties are in a spouse or de facto relationship

1. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

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

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a Western Australia Marriage Certificate stating that Jinwon Buhm and Yeonhwa Hwang were married in a civil ceremony at the Registry of Births, Deaths and Marriages in Perth on 29 July 2013. A Change of Name Certificate was also provided showing that Jinwon Buhm changed his name to Gabriel Bom on 7 February 2014. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

Are the other requirements for a spouse relationship met?

1. The Tribunal has examined the evidence before it regarding all the provisions of subregulations.1.15A(2). The Tribunal finds as follows.

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.

1. The applicant in seeking judicial review of the Tribunal decision of 9 March 2020 did not challenge the Tribunal’s assessment of the nature of the household. The Tribunal in its reasons found that the parties do not have joint ownership of assets and do not share liabilities; and that there are no legal obligations owed to the other, apart from those arising from the fact of their marriage. The Tribunal found that the parties have not pooled their financial resources, and to the extent that they have shared day-to-day household expenses, it has been on a limited basis, as housemates, largely when both (are) in the same country, city and shared accommodation. The Tribunal has read and considered the findings regarding this aspect, and carefully considered the information submitted in 2019 and 2020. The Tribunal does not disagree with the conclusions reached by the decision-maker. As 20 months have elapsed since that decision was made, however, and in order to establish whether there have been significant changes in how the applicant and sponsor have shared their financial arrangements since, the Tribunal has examined further information provided by the applicant for the current review regarding the parties’ finances.

2. The applicant provided as part of the initial review of the decision, a copy of account statements for a joint account at Commonwealth bank held by the applicant and sponsor. The statement period is from 1 July 2019 to 30 November 2019. The Tribunal has considered the evidence but is not satisfied it contains information which establishes that the applicant and sponsor pool their finances. No credits to the joint account appear to have been made by the sponsor, whereas the applicant has made a series of deposits, as has Tomoko Inamura (several $330 deposits), and Hyunyu Woo, (including a $330 deposit of 24 August marked “rent”). Ms Hwang explained that from time to time a room in the apartment leased by the parties jointly has been sub-let to a housemate. The applicant provided a fixed-term tenancy extension agreement in the parties’ joint names for premises in Brisbane, showing that a previous tenancy in joint names which ended on 19 January 2020 had been extended to 29 July 2020.

3. In the hearing, the Tribunal referred to the parties’ financial circumstances. The applicant gave oral evidence that she continues to lease the apartment with the sponsor at the time of this review and continues to work at the Wesley Pharmacy in Brisbane. The applicant provided income statements for the 2018-19 financial year from two pharmacy employers, Healthyworld and Wesley Pharmacy in Brisbane. Evidence of employment in the Australian Army Reserve is provided for the sponsor, Private Gabriel Bom, showing that his term began on 15 January 2018; that he is married; and his period of service is two years. Mr Bom claimed in the hearing he remains a member of the Army Reserve, but due to him being in China, he is not actively training.

4. Neither of the parties claims the two share their finances to any meaningful extent presently, and that is a deliberate approach. The applicant stated that the parties still have the joint account, and she believes they need to keep it in place, but as Mr Bom is in China, she pays the bills, health insurance and more with her own funds, which are held in an account in her name, separate from the joint account. She is working full time and does not call on Mr Bom for contributions, she stated. She encourages him to invest his money into business success. He also keeps his own bank account for his business, she claimed.  She stated they have discussed the financial aspect but they are sure they never want to share finances, and that is consistent with her mother’s advice from the start. Mr Bom stated he earns approximately AUD$8000 in the business each month and draws around half that for himself.

5. On review, the applicant submitted no new financial documents, however her representative submitted in a statement made on her behalf, that the applicant understands that the lack of financial assets and liabilities shared with the sponsor can appear concerning. He argued that the modest backgrounds of the applicant and sponsor have prompted them to explore “a vast range” of different work and study options to discover suitable pathways for themselves as individuals; and he pointed to evidence of those activities over time. The Tribunal has considered this argument, which infers that the parties do not share their finances because they are trying to map out futures for themselves. The Tribunal has considered this, but does not conclude, as the representative seems to, that this is a mitigating argument for not sharing finances. The Tribunal considers it suggests  the opposite, which is that the parties keep their finances separate because they are on different pathways and have been for a long time, and neither of them is sure they will be together when and if they make long term choices.

6. The Tribunal having considered the relevant financial evidence before it is not satisfied that the parties have joint assets and liabilities, pool their resources or share major financial commitments other than a rental lease which the applicant funds; they do not hold legal obligations to one another aside from that arising from their marriage; and do not share day-to-day household expenses. The Tribunal accepts the practical realities of their financial situation, which are that they live in separate countries and the applicant is earning a salary, albeit trying her hand at stock market investing, while the sponsor is drawing funds from a business in order to fund his lifestyle offshore. However the Tribunal is not convinced that such circumstances are a significant barrier to them sharing their finances or pooling their funds to save for their future. The Tribunal, on balance, weighs the financial aspects against the applicant.

Nature of the household - including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

1. The applicant in seeking judicial review of the Tribunal decision of 9 March 2020 did not contest the Tribunal’s assessment of the nature of the household. The separately constituted Tribunal in that decision accepted that when living in the same household, the parties shared the housework and the cooking; that they do not have or care for children; and the parties have lived apart for extended periods while following their own life choices. The Tribunal found that when they lived in the same city, they have lived only in accommodation shared with other people. For these reasons the Tribunal in its decision found the living arrangements of the parties since their marriage in the Perth Registry Office in July 2013 and the lodgement of the visa application in August 2013, to be those of young people in a long-term boyfriend-girlfriend relationship, or possibly those of two young people in a friendship of convenience for the purpose of a migration outcome.

2. The Tribunal has then considered what it is happening in terms of their living arrangements at the present time. The parties do not have children, however the applicant gave evidence that she wants to have a child before she is 35 but the time is not now. She claims that the sponsor has spent some time in the Brisbane apartment (“he was there”). She states it is a two bedroom, two bathroom unit and when together, the parties mainly use the bigger room and let the other room to a housemate. She claims the sponsor in the household is “a perfect guy: he knows how to clean, do bedding, do laundry” because he has worked in hospitality, but that he failed at cooking. He currently lives, she stated, in the south of China in a share house that is dirty and old and he does not want her to go there.

3. The Tribunal having considered all the relevant information before it as to the nature of the parties’ household, and finds they do not have joint responsibility for the care and support of children; that they currently live in separate countries, that the sponsor spent some time in the Brisbane apartment prior to February 2020; that he shared housework responsibilities over that time. The Tribunal accepts also that the applicant from time to time shares the apartment with a housemate who pays rent but there is not a housemate there currently. Based on the information before it, the Tribunal finds the living arrangements are not that of a couple but of two people who keep the same base, for reasons of convenience and potentially contrivance, and affords them very little weight in favour of the applicant.

Social aspects of the relationship - including whether 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.

1. The applicant in seeking judicial review of the Tribunal decision of 9 March 2020 did not raise issue with the Tribunal’s assessment of the social aspects of the relationship. The Tribunal in that decision accepted that the parties might not consider themselves married until they have a proper family wedding ceremony and reception in Korea. The Tribunal as previously constituted accepted that the parties might not consider themselves married before their family and friends because they have not had a ‘proper’ wedding ceremony before those family and friends. The Tribunal accepted that the parties are in a boyfriend-girlfriend relationship, that they have participated in social activities on this basis, that they have represented themselves as engaged to be married, and that some of their family members and friends support the visa application. The Tribunal was not satisfied that the parties have represented themselves as being married to each other and is not satisfied that they have been recognised and related to as a married couple by their friends and family.

2. The Tribunal has had the benefit of hearing the parties’ evidence about their social aspects at length in the hearing and has considered the declarations of friends and family about the relationship that were provided for the current review. The Tribunal heard oral evidence from the applicant’s sister-in-law, the witness Jinsol (Sophia) Buhm and it has considered her written declaration which is consistent with her statements. The Tribunal notes that throughout their individual appearances, the applicant, sponsor and witness did not refer to the parties as unmarried and did not suggest they were waiting for a ceremony to be held in Korea to confirm their union. The witness Ms Buhm, questioned the relationship to an extent at another level, stating that she (and her mother) had had some reservations about the marriage, particularly as the parties were so young when they married. She stated the family had nevertheless come to accept it was the parties’ right to conduct their marriage as they saw fit, and stated she had no doubt it was genuine and the two are working towards their future. The applicant’s mother, Yeonju Yang, stated in a written submission that she was quite shocked by the parties’ decision to marry at a young age, but she decided to support her daughter. She considered the sponsor a worthwhile son-in-law and she states she warned them to hold off having children until they were in a better position. She acknowledges that the marriage is “far from typical” and that part of “the blame” for the visa refusal is hers, for encouraging her daughter to Korea to run a coffee shop venture soon after she married. The applicant’s brother, Changhyeon Hwang, stated in his submission that he cannot entirely understand or relate to his sister’s marriage to the sponsor, but he believes in their love for each other and their marriage. He claims his mother has always encouraged him and his sister to be independent and self-reliant people. The Tribunal has noted the few items of photographic evidence provided throughout the review process, and notes photos that primarily but not exclusively, depict the couple rather than the couple with others, so it contributes little to proving that they socialise with friends. The volume of statements from third parties supporting the relationship, however, is extensive, and the Tribunal finds the parties represent themselves to other people as being married to each other; and enjoy the opinions of friends and acquaintances about the nature of the relationship as genuine. The Tribunal notes the parties have travelled together at times, and the applicant gave a detailed explanation of how the sponsor coaches her, long-distance, about how to perform basic gym work. The Tribunal notes the claim but does not consider it to qualify as a social activity undertaken together or a sign they plan activities. The applicant claimed at the hearing that she is an extrovert and the sponsor is introverted, so their social interaction is lopsided. The Tribunal having considered all the evidence, concludes the parties have undertaken a limited range of activities together, however, accepts that this is partly because they have frequently not been in the same place. The Tribunal accepts a number of other people find the relationship to be genuine. On balance, the Tribunal affords the consideration light weight in favour of the applicant.

Nature of 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.

1. There are some 15 provisions in the Regulations that must be actively considered by a decision maker in forming a view of a spousal relationship, and five of them are concerned with the nature of the person’s commitment to each other. Relevantly, this includes whether the persons see the relationship as long-term.  In its remit of the decision to the Tribunal, the Court found the long-term aspect was not properly examined by the Tribunal. That element is considered below alongside the other four elements required to be assessed regarding the nature of the persons’ commitment to each other.

2. The applicant, in a submission to the Tribunal of 10 May 2021, made through her representative, argued:

   There is no denying that the applicant and sponsor’s marriage is different. It is something that many may not be accustomed to. But it is unjust and irrational to refuse acknowledgement because one cannot personally relate to or understand their unfortunate circumstances. We request that the Tribunal oversees this matter with an open mind and in the absence of premeditated, biased opinions. With the relevant legislative provisions, to be discussed shortly, indicating that all the circumstances of the applicant and sponsor’s marriage are to be considered, we request that the Tribunal aims to understand this matter through a contextual perspective.

3. The Tribunal has overseen this matter with an open mind and in the absence of premeditated, biased opinions. Further reading of the document, however, reveals the proposed contextual perspective to include that any marriage between a man and a woman is inherently intimate, private and unique; that it is not reasonable to expect a married couple to own a home together, or to have a joint pool of financial assets and responsibilities, or to have a family, and to have an established dynamic. Further, it is not reasonable to deny the genuineness of a marriage purely because a couple do not fit the “stereotypical image implemented by society”. The applicant asks the Tribunal to refrain from being “swayed by societal norms”. The Tribunal has considered these arguments and accepts that no two marriages are exactly alike. The Tribunal pointed out at the hearing that the Act requires certain aspects of a relationship to be considered when forming a view of a claimed spousal or de facto relationship. The Tribunal has therefore proceeded to that task without fear or favour and has assessed all 15 considerations as they are laid out in the Regulations, including the five concerned with the nature of the persons’ commitment. The Tribunal finds as follows about that nature.

The duration of the relationship and length of time the persons have lived together

1. Since marrying in 2013, the parties have spent three extended periods apart and it appears from their evidence that they have spent approximately four of eight years together and the remainder apart. The applicant’s own broad accounting is four years apart, five years together (thus counting the period before their marriage). Referencing the dates the applicant provided to the Tribunal, which differ slightly between documents, the following account of their separations and reunions may be broadly derived. The two lived in Perth from September 2012, through their marriage in 2013 and a trip to Bali that same year, to May 2015, including a five (or six) month period during which Ms Hwang was in Korea for a holiday and for study, with Mr Bom also in Korea for three months before he returned to Perth in February 2014. Three months later, in May 2014, Ms Hwang returned from Korea to Perth to study. Two months later, in July 2015, Mr Bom moved from Perth to Melbourne, because, he stated, he had secured an irresistible place at the University of Melbourne in engineering. Ms Hwang continued on in Perth to finish her engineering diploma, with the sponsor visiting, however in January 2016 the applicant went to Korea for a month. In July 2016, she left Australia to open a café in her parents’ building in Korea. In June 2016, Mr Bom joined the Australian Army Reserve, and in July 2016 Ms Hwang moved to South Korea to run the coffee shop. The sponsor remained in Melbourne but visited Korea for three months from December 2016 to February 2017 and the parties visited Japan together before Mr Bom returned to Australia. In March 2017 the applicant visited Melbourne for two weeks. In December 2017 the sponsor travelled to China (he states he was on his way to see the applicant in Korea) and went on to Korea in January 2018. Ms Hwang was not there when he arrived, because on 18 December 2017 she had precipitously returned to Australia from South Korea because her permanent visa had been refused. Mr Bom made his way back to Australia in February 2018, whereupon the parties moved to Brisbane and rented the apartment. Mr Bom began studying a pharmacy degree and in July 2018 the applicant started to study a Certificate II Pharmacy Assistant course. In November 2018, Mr Bom went to China for two months to study Chinese, he claims, but returned in March 2019 via Brisbane for surgery in Melbourne where his wife claims to have visited him. In June 2019 Mr Bom went back to China, while Ms Hwang remained in Brisbane and where she continued to live in a flat in the Brisbane CBD. In January and February of 2020, Mr Bom was in Brisbane for a holiday before he left for China in February 2020 to set up what he describes as a gymnasium business with a partner. He claims he had no idea, until he arrived in China, just how restrictive travel would become, and in the end, heavy regulation of movement and trade arising from COVID-19 in China effectively trapped him there. He does not claim to have seriously tried to return to Australia. He stated only that he did look at flights but found there was nothing. Mr Bom claims he is intending to sell the gymnasium business, placing it on the market when the opportunity presents, but the time is not right now, and he does not expect to be back in Australia until 2022. The applicant and sponsor, in spite of this history, both claim that they are not really apart when they are in separate locations, because they are in touch every day, and have always made an effort to take holidays together to maintain their relationship.

2. The Tribunal having considered all of the above, accepts that the relationship has endured, after a fashion, for a period of at least eight years, nine if the pre-marriage period is included. Since the marriage, the parties have lived together for a cumulative period of around four years. The Tribunal does not accept that visits and online communications are capable of being construed as “living together” or even “being together” but accepts that the parties have spent nearly half their time in the same place since 2012.

The degree of companionship and emotional support that the persons draw from each other

1. The parties claimed separately at the hearing that they depend on each other for love and support. They each expressed views that their relationship is different from the usual spousal partnership, but it is definitely genuine. Ms Hwang claimed that once the current stage of being apart is over, they will follow each other to wherever they land. If the visa is refused, Ms Hwang stated, Mr Bom will be going with her to Korea or China. Mr Bom stated that Ms Hwang is his constant, daily focus, apart from his work, and they are always there for one another.

2. The Tribunal in the hearing put to each Ms Hwang, Mr Bom and the witness Ms Bohm, whether a young couple, newly married, who had spent little more time together than they had apart, and where they were away for long periods in different countries, could reasonably be thought of as in a spousal relationship. The Tribunal advised it had not made up its mind on the matter. Ms Hwang’s response was as follows (with grammatical adjustment that attempts to faithfully preserve the sense): “To be honest, my choices and his choices are what made us be physically apart. There’s no issue, I’ve told him to do what he wants to do. I am not going to betray him, or not be together, it is not a big deal to us. Sometimes I am lonely but he tries to do his best. Time flew fast, we did our best to study, make money for the family. Other people see you’ve been separated, but we are always together, that’s how I feel, we will always be together, and for the future, I am going to fully rely him if I get pregnant. Then he has to take responsibility and he can’t go anywhere else, but right now we have things to do and I encourage him. I did not want to drag him down, and say he can’t do this, right now we are a young couple and we are very different characters. That is the way we live together. We always check on and care for one another. If I have to be in China, if I am to be in Korea, I am going to follow him. He’s Australian, he decided on Australia and that decision is our future, our children’s education. We grew up in Korea and we found after we studied it’s a better education system here. We thought about going back to Korea to stay with my family but we don’t want to. I need a visa to be with him. If my visa is refused, well of course he will follow me back to Korea. We are different, everyone’s different, we may be stupid but we fully take responsibility, he is always working hard, I have tried to do my best even when I could not speak much English. We have had no family support.”

3. The visa applicant addressed the reason for her departure in March 2016 to Korea to run a café in her parents’ apartment building while Mr Bom remained in Melbourne. She said the venture presented as an opportunity but it was not very successful and when she found out about the visa being refused, she just closed it down on the spot, and came to Australia as fast as she could. She had borrowed $30,000 and lost it all, however, she stated proudly, she had paid it all off working in Australia. Mr Bom talked about his reasons for going back to China in 2020, which is when everybody began to be aware COVID was spreading. He stated: “Actually we did not know about it much, I already had the ticket, I had just opened the business in December. I had almost two months break in Australia with her and at the time I thought it would be just a few months more, I would settle it down. I thought after a few weeks it would be fine. I had a look at flights and kept thinking next month, next month. I am getting an $8000 sales outcome every month, it is stable, and I am making half that as profit. If I leave, I have to fail, because I would permanently leave China for Australia. I am preparing to sell before next year.” The Tribunal asked the sponsor for his views on whether being apart as much as they are means the relationship may be contrived. He stated: “I don’t think this makes sense, we have been going for nine years. Yes, she did the business in Korea, but I visited her often, and she would come to Melbourne when I was studying. There is not one day goes by where we do not talk or get in touch, I would go to jail on that. We call in the morning and we call before sleep; we share our life. We called every day even while we were studying in Melbourne and every month I would go to Perth. It is lifelong this partnership. I love her and I believe 100 per cent she loves me, and with her in my life my life will be more shiny, because the reason I wanted to marry earlier, I felt something I had never felt before, I had not had a father and mother they were always shouting; I never saw happy families, only in fiction, and she is a bright person whereas I’m depressive, and with her there was someone waiting for me. An especially happy person. It was an amazing feeling.” He said it was unexpected, his going to China, no-one wants to be separated and he particularly misses the Army Reserve. But he cannot come home right now, he stated.

4. The applicant’s sister, Ms Buhm in addressing the topic, stated that she was working in Seoul when the parties married. She said that her family is fairly liberal, so while her parents did not fully understand the need for marriage, they were supportive, and now everyone including herself and her grandparents and in Seoul support the relationship. The Tribunal put to her that it might consider the separations indicate a contrived relationship. She responded that she understood that. At first she and her family were really concerned about that aspect, she said, but on the other hand, for her generation in Korea, work and career are very important, and she herself tends to prioritise her personal development: “What is important in your life is your choice, but everybody is different and we are trying to work out what is best for them, and for the family, and I respect their decision. Whatever makes them happy, I support. I have seen their relationship for a long time, when I was young we did not really understand the marriage, and grasp the actual commitment, but I am seeing that they are definitely acting like a unit, I don’t think it is one person, talking to her is like talking to my brother, and from him I hear about her all the time, it is kind of a unit. So I believe they are strong in the future as well.”

5. Over the course of the application and review, the parties submitted a considerable body of Statutory Declarations expressing support for the relationship, including some which indicated they had overcome doubts about it. The parties provided to the Tribunal in May 2021 and November 2021, Statutory Declarations from the applicant herself; from Jinsol Buhm, the applicant’s sister-in-law; Yeonju Yang, the applicant’s mother; Changhyeon Hwang, the applicant’s brother; and friends Mijung Hong and Jungjun Moon. The applicant’s mother states she is aware the marriage is far from typical, and accepts some blame as it was she who encouraged her daughter to come to Korea for the business. Her brother states that while he cannot entirely understand or relate to his sister’s marriage, he believes in the parties’ love for each other and the marriage. Friend Mijung Hong, a Registered Nurse in Australia, states that the reason the sponsor started a business in China was because the parties did not have the money to do anything else. She states support for the relationship as genuine.

6. The Tribunal accepts that some sort of relationship between the parties has lasted for eight or more years. However the reality of the relationship is that the parties have spent very large periods of time apart and the Tribunal finds this to be strongly at odds with the them being genuinely committed to one another. Overshadowing all their statements of togetherness and supportive arrangements is that they have been together for at most, half the time they have been married, and the Tribunal, having deeply considered their motives, remains unconvinced they are in anything other than a convenient arrangement and a friendship. Being together is a fundamental aspect of spousal relationships, as the regulations infer and any reasonable person knows, and their frequent separate states tend to point to them not actually wanting to be together. The parties’ families and friends have expressed faith in their commitment to one another, albeit within Ms Hwang’s family, that appears to be faith tinged with doubt about the logic of them individually and frequently pursuing their various dreams. The longevity of the relationship tends to suggest there is commitment of some kind present, but the commitment is one of friendship and mutual support, or of convenience for a migration outcome, and the Tribunal considers it will cease once a successful migration outcome has been achieved, as the alternative, which is that it is committed, is not established on the evidence.

Whether the parties see the relationship as a long-term one

1. The parties claim they see the relationship as long-term. They claim they are working towards a time when they can be together, have children (before the applicant turns 35) , buy a house and settle down. They say they do not share their finances to any meaningful degree and have acquired no assets together because they are not ready to, and Ms Hwang prefers it that way, so they may never do so because she (and her mother) do not believe in combining money. Friends and family say they believe in the union and in the parties’ are entitled to try other things before they settle down; that young people these days prioritise their careers. The Tribunal has listened to all the assertions made, and at the end, is none the wiser as to what the parties plan to do to ensure they are in the same place. The applicant has not completed his studies in engineering or pharmacy, despite being enrolled at two universities, and since late 2019 he has been in southern China, where without providing supporting evidence he claims that he runs a gymnasium business, and that to leave it would be to fail, so he has to pick the right time to sell and that is not yet. He claims he will sell it, probably early next year but has offered no marketing plan. He is a member of the Australian Army Reserve, but he left training to go to China, he said. He claims he remains a member and “loves it” and will want to go back to it, yet he is not training and has not made a plan to resume. In the Tribunal’s considered view, these are not the actions of parties who genuinely see their relationship as long-term.

2. The Tribunal having considered all of the above, is not satisfied the parties see the relationship as a long-term one. The Tribunal concludes the relationship is a sham, that they are in the relationship for a migration outcome and that once a successful migration outcome had been achieved, the parties will go their separate ways.

The nature of the person’s commitment – overall conclusion

1. On balance, after extensive consideration, the Tribunal weighs the nature of the persons commitment to each other against the applicant.

Overall conclusions

1. The Tribunal has considered the degree of companionship and emotional support that the persons claim to draw from each other and has closely examined their oral and written evidence about claimed love for and commitment to one another. It has weighed those statements against the facts of their extended separations and is not satisfied that the parties, having spent so much of their time apart, are in a spousal relationship as defined in the Act. It is particularly unconvincing that the applicant blames COVID-19 restrictions for their largest and latest separation, citing them interchangeably with his business indecision and options. Visits home, he claims, are not possible: he could not come to Australia and be confident of getting back to China, and he has a business to think of. The Tribunal notes that conservatively, tens of thousands of Australian citizens have arrived in Australia from offshore since February 2020 and many have secured outbound exemptions for returning to their place of business. The Tribunal in the hearing, asked the sponsor how hard he had tried to come home and see his wife. The applicant said he had looked online and had not found flights, and the Chinese government was limiting travel. The Tribunal accepts there is some truth to all of this; most people know it is hard to travel in a pandemic, but without supporting evidence of having attempted to do so, broad blaming of the pandemic does not of itself persuade the Tribunal that the sponsor has tried, and notes the separation is likely to continue into next year for business reasons. The sponsor has been in China alone since February 2020. Before that, the applicant spent around 16 months alone in Korea pursuing a café business; all while married and the latter was pre-COVID. Further, the Tribunal notes the applicant and sponsor married at the ages of 21, a matter of days before the expiry of the applicant’s working holiday visa and applied for a partner visa the next day. These elements weigh against the applicant.

1. The applicant claims that if the visa is refused, the parties will follow each other to a place where they can be together. The Tribunal has taken this into account, however there is no evidence that they genuinely have a plan for that outcome, and for the reasons detailed above, the Tribunal is satisfied the relationship is one of convenience and is likely to cease once a successful migration outcome has been achieved.

2. The Tribunal having carefully considered all the evidence before it finds the parties do not have a mutual commitment to shared life to the exclusion of others; are not in a genuine and continuing relationship; and nor do they live together and not separately and apart on a permanent basis.

3. The parties presented themselves as young, appealing witnesses, and it is clear they are anxious about the outcome of this review. Ultimately, however, the Tribunal must make the best and preferable decision with regard to the Act, and it finds that the parties are not in a spousal relationship as defined.

4. Given these findings the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant does not meet cl.801.221(2)(c).

5. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221(2A), (3), (4), (5) or (6).

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

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Meredith Jackson
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).