WANG (Migration)

[2017] AATA 1922

WANG (Migration) [2017] AATA 1922 (11 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms ANNA XUE WANG

VISA APPLICANTS:  Mr ZHIJUN TAN
Miss XIAOLEI TAN

CASE NUMBER:  1619657

DIBP REFERENCE(S):  BCC2016/1785969

MEMBER:Justin Owen

DATE:11 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 11 October 2017 at 6:19pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Provisional) – Financial arrangement – Social recognition – Emotional support

LEGISLATION

Migration Act 1958, ss 5F, 65, 359A
Migration Regulations 1994, Schedule 2, r 1.15A, cl 309.211, cl 309.221, cl 309.311, cl 309.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 November 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 19 May 2016 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211, 309.221 and 309.311 at the time of decision. The delegate found that, whilst validly married, the visa applicant and visa sponsor did not have a mutual commitment to shared life to the exclusion of all others as required under section 5F(2)(b).

4. The review applicant appeared before the Tribunal on 15 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. The Tribunal wrote to the review applicant under S.359A on 27 September 2017 inviting the review applicant to comment on or respond to certain information the Tribunal considered may, subject to the sponsor’s comments or response, be the reason, or part of the reason, for affirming the decisions under review. The sponsor responded in writing on 9 October 2017.

7. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties are in a spousal relationship as stated in cl.309.211(2) and cl309.221 in Schedule 2 of the Regulations.

9. The Tribunal has taken into consideration all the evidence in the Departmental file BCC2016/1785969, the Tribunal’s case file 1619657, folio numbered 1-84 and the oral evidence given by both parties at the Tribunal’s hearing.

   What is the background of this case based on all the evidence before the Tribunal?

10. The visa applicant lodged a valid application for a Partner (Provisional) (Class UF) (Subclass 309) Visa on 19 May 2016 on the grounds of being in a spousal relationship with an Australian citizen, eligible sponsor Anna Xue Wang, who lodged a sponsorship in support of the application.  The review applicant and the visa applicant were introduced to each other by a mutual friend Mr Jiang Wentao in March 2015.  The review applicant and visa applicant claim to have first met in person on 9 June 2015.  On 19 June 2015 the review applicant returned to Australia.  In October 2015 the visa applicant and review applicant committed themselves to each other.  On 1 January 2016 the visa applicant proposed marriage to the review applicant.   On 7 March 2016 the review applicant returned to China and married the visa applicant on 10 March 2016.  The review applicant returned to Australia in mid-March 2016.  The application was refused by the Delegate on 7 November 2016.  Since the marriage the review applicant has returned once to China – for ten days in February 2017. 

    Whether the parties are in a spouse or de facto relationship

11. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

12. ‘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 husband and wife 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 r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The visa applicant and review applicant have known each other since March 2015 and were validly married on 10 March 2016. The validity of their marriage is not in dispute. They have provided their marriage certificate as evidence. On the evidence the Tribunal is satisfied that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spousal relationship met?

14. The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2).

    Financial aspects of the relationship

15. In respect to the financial aspects of the relationship between the visa applicant and the review applicant the Tribunal has considered the joint ownership of real estate or other major assets; joint liabilities; the extent of pooling of financial resources; and any legal obligations owed to the party; and any sharing of day-to-day household expenses.

16. Both the review applicant and the visa applicant conceded to the Tribunal in oral evidence that no joint financial arrangements existed between the parties with the review applicant stating any such relationship would only commence when the applicant came to Australia. The review applicant was unaware of who the visa applicant carried out their banking with. The Tribunal wrote to the review applicant on 27 September 2017 under S.359A inviting the review applicant to comment on or respond to this information which the Tribunal considered would, subject to the review applicant’s comments or response, be the reason or part of the reason for affirming the decision under review.

17. On 9 October 2017 the review applicant responded through a statutory declaration stating that ‘because we live separately at this stage, we do not have a joint account and joint property so far.  We have planned all of that.  After I reunite with my husband, we will save money together for buying house.  We plan to do a lot of other things and we will spend our life together.’     

18. The review applicant stated that she had not declared the visa applicant as her spouse to any government departments. No evidence was presented of pooling of financial resources nor is there any evidence of joint bank accounts or utility accounts in the names of both parties.

19. In the original visa application to the Department a copy of a superannuation form in which the review applicant nominated the visa applicant as a beneficiary/dependent was included.  In her decision the Delegate noted there was no evidence this form had been submitted.  In questioning by the Tribunal the review applicant conceded the form had still not been submitted as she claimed she had not had the time to deal with this.   

20. The visa applicant stated that he sent the review applicant’s mother money for Mother’s Day.  No evidence of this transaction was provided.  The Tribunal also notes the positive weight the Delegate gave to two transfers of $4,000A and $5,000A the visa applicant made to the review applicant in May 2016 to support the review applicant during an illness.    

21. The Tribunal notes that the review applicant in oral evidence confirmed that the applicant still owns property with his ex-wife.  The Tribunal notes the financial relationship that continues to exist between the visa applicant and his ex-wife remains more significant than that with the review applicant. 

22. Based on the above evidence and information, the Tribunal is not satisfied that the parties have combined, shared or discussed their finances in any meaningful way, except to agree to do such upon the visa applicant’s planned arrival in Australia. 

    Nature of the household 

23. The review applicant has visited the visa applicant three times since the inception of their relationship in March 2015, including most recently a ten day visit to the visa applicant in Guangzhou in February 2017.

24. No evidence was provided to the Tribunal of any shared living arrangements or shared housework for the periods in which the sponsor and visa applicant claimed to have lived together.

25. The sponsor stated in oral evidence she had met the visa applicant’s children in Guangzhou and had taken the eldest child on an outing.  A photograph of who is claimed to be the visa applicant’s daughter with the review applicant was submitted to the Tribunal.  No further contemporaneous or corroborative evidence was provided to the Tribunal.

26. Based on the above evidence and information, the Tribunal is not satisfied that the parties’ actions are commensurate with the actions of a spousal couple intending to commence a shared life and household.

    Social aspects of the marriage

27. In relation to the social aspects of the relationship, the Tribunal notes the lack of recognition the relationship enjoys from third parties.  The parties have provided the Tribunal with photographs of themselves with who is claimed to be the visa applicant’s family members and friends during the review applicant’s most recent trip to China in February 2017, however no witness statements or evidence has been provided by any of these parties to verify their identity or claimed relationship, if any.  The review applicant and visa applicant provided the Tribunal with vague and generalised oral evidence concerning their activities, who they visited and what they discussed during this visit beyond generalities.  For example the review applicant when asked about what the parties had done during the trip, stated that over the ten days they had seen family and friends and stayed around home.  No further detail was forthcoming. 

28. The Tribunal notes the serious concerns the Delegate expressed in her decision concerning the lack of awareness of the parties’ relationship by the visa applicant’s family and friends. The Delegate stated that the majority of his family and friends believed that he and his ex-wife were still married, despite divorcing over a decade ago.  Examining this aspect during the hearing, the visa applicant stated that divorce was not approved of in his home town.  The review applicant said that she had encouraged the visa applicant not to feel bad about divorce.  This, the review applicant claimed, had led to a much more widespread knowledge in the community of their marital status.  No evidence was provided by the parties however to the Tribunal to verify this.          

29. The Tribunal notes that the parties have provided no witnesses or written statements by family and friends to address these concerns.  The Tribunal notes that in oral evidence both the review applicant and the visa applicant claimed that the concerns expressed by the Delegate were no longer relevant and the marriage now enjoyed widespread social recognition from family and friends.  No evidence was provided to the Tribunal to confirm this.  The review applicant did however concede that the visa applicant has never spoken to her only daughter.  The Tribunal finds it concerning that after 18 months of marriage the visa applicant has never once spoken to his step-daughter.  The Tribunal also notes that the visa applicant is still to speak the review applicant’s mother, despite the fact she resides with the review applicant.  The Tribunal submits that this does not reflect widespread social recognition of the parties’ relationship.     

30. The Tribunal notes that the visa applicant stated in evidence that his two younger children – aged 11 and 6 respectively – are unaware of his relationship with the review applicant. He stated that they still believe the visa applicant is in a married relationship with their mother. The visa applicant divorced in 2005. The Tribunal finds the visa applicant’s claims his children don’t know that he is in a spousal relationship with the review applicant and that they still believe he is in a relationship with his ex-wife concerning. The Tribunal believes this is indicative that the relationship is not socially recognised, even from the perspective of immediate family members. The Tribunal wrote to the review applicant on 27 September 2017 under S.359A inviting the sponsor to comment on or respond to this information from the visa applicant that the Tribunal considered would, subject to the review applicant’s comments or response, be the reason or part of the reason for affirming the decision under review. On 9 October 2017 the review applicant responded through a statutory declaration stating ‘my husband has three children with his ex-wife and two of them are under 18 years old.  He told me that he discussed with his ex-wife and both agreed to tell their children about their parents’ divorce when they turn 18 years old.  Just like the elder daughter, they would be told the whole story when they are getting more matured in fact, I have met these two children.  We are getting along well and they both like me.  Both my husband and I decided that if the question being asked whenever the times, we will tell them the other way, we have to respect his ex-wife’s decision.’  The Tribunal is not satisfied that this, given the visa applicant divorced twelve years ago and married the sponsor a year and a half ago, illustrates recognition of the relationship from third parties even at the most immediate family level.  The children will not turn eighteen years of age for 7 and 12 years respectively.  The planned extensive delay in representing themselves as married to immediate family members – albeit the visa applicant’s younger children – is in the Tribunal’s view extensive and indicative of a relationship that is lacking social recognition.   

31. The Tribunal accepts from all the evidence submitted to it that the review applicant met the visa applicant in June 2015, visited in March 2016 and February 2017, and is acquainted to the visa applicant.

    Nature of the commitment of the relationship

32. The Tribunal has considered the duration of the relationship; the length of time the applicant and review applicant have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

33. In respect of the parties’ commitment, the Tribunal notes that the couple have been married for over a year and a half and the review applicant has returned to visit the visa applicant once – in February 2017 for ten days.   The oral evidence the review applicant and the visa applicant gave of their activities as a couple during the sponsor’s visit was vague and very general.  

34. Evidence has been provided to the Tribunal of regular contact in 2016 and 2017 between the review applicant and the visa applicant via the telephone and WeChat.   The Tribunal affords these records some positive weight.  The Tribunal also notes that the review applicant travelled to China to see the visa applicant in February 2017, so it would be expected two people to be in regular communication in establishing their travel plans and itinerary.  

35. The parties in oral evidence illustrated some knowledge of each other’s financial, employment and residential status. 

36. The Tribunal has significant concerns about the visa applicant’s ongoing relationship with his ex-wife. The visa applicant remains jointly owning property with his ex-wife and stated in evidence his two younger children are unaware that he is no longer in a married relationship with their mother. The Tribunal wrote to the review applicant on 27 September 2017 under s359A inviting the review applicant to comment on or respond to this information which the Tribunal considered would, subject to the review applicant’s comments or response, be the reason or part of the reason for affirming the decision under review. On 9 October 2017 the review applicant responded through a statutory declaration stating ‘Regarding to the co-owned property between my husband and his ex-wife, I was informed that both of them agreed to sell it and equal share of the sale price and the property has been putting on the market a few times, but the price offered by the potential buyer did not reach the expected price by his ex-wife and this is the main reason why the property is still there.  And to be honest with you I am not happy about it but, the property is under both my husband and the ex-wife, I could not do much about it.’   The review applicant also provided on 9 October 2017 what appears to be a copy of a receipt and a business card with accompanying translations.  The translations, although unverified, appear to state that a real estate agent has taken receipt of three keys from the visa applicant for the sale of a property in China.  The Tribunal notes that the visa applicant remains jointly owning property with his ex-wife 12 years after his divorce.  The Tribunal notes that the visa applicant does not intend to tell two of his children that he is no longer married to his ex-wife for another 7 and 12 years respectively The Tribunal is not satisfied that this is indicative of the existence of a long-term and committed relationship between the visa applicant and the review applicant.      

37. The evidence given by both the review applicant and the visa applicant concerning the relationship between the visa applicant and his ex-wife was vague and somewhat evasive. The Tribunal considers this is an inadequate demonstration of the visa applicant’s commitment to the review applicant and is contrary to the requirement for the parties to have a mutual commitment to a shared life to the exclusion of all others, and that the relationship is genuine and continuing.

38. The parties were both unable or unwilling to articulate how they supported each other emotionally in the relationship.  The review applicant responded ‘ask him’ when questioned as to how she supported the visa applicant in the relationship on an emotional basis. 

39. Whilst the parties have knowledge of each other and maintain a degree of regular contact, it is not in the Tribunal’s view commensurate with that of a couple who have been in a committed relationship for nearly two years. While the Tribunal accepts that the parties are well acquainted, the parties have not satisfied the Tribunal that they are spouses.

    Findings

1. Based on the evidence before the Tribunal at the time of application and the time of decision, the Tribunal has not been satisfied that the couple see their relationship as long term, that they draw emotional support and companionship from each other, or that they have a commitment to a shared life together. 

2. Given the above evidence, the Tribunal is not satisfied that the above circumstances demonstrate a commitment to a spouse relationship for the purposes of s.5F(2).

3. The Tribunal is not satisfied that at the time of application and the time of decision the visa applicant and review applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore do not meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

4. For these reasons the Tribunal finds that at the time of application and the time of decision the visa applicant and review applicant were not in a married relationship within the meaning of s.5F(2) of the Act.

5. Therefore the visa applicant does not meet cl. 309.211 and cl.309.221 of Schedule 2.

6. Given the finding that cl.309.211 and cl.309.221 have not been met, the visa applicant does not satisfy the criteria for the grant of the visa.

7. The secondary applicant Xiaolei Tan has not made any claims that they meet the requirements for a Subclass 309 as a main applicant. The secondary applicant is not a member of a family unit of a person who satisfies the primary criteria in Subdivision 309.21. The secondary applicant does not hold or has held a Subclass 309 visa. The secondary applicant does not meet the secondary criteria cl.309.311 and cl.309.321 of Schedule 2. The secondary applicant does not hold a Subclass 445 (Dependant Child) visa.

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

   DECISION

9. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

   Justin Owen
   Senior Member

   
   

   ATTACHMENT  - Extract from Migration Regulations 1994

   1.15ASpouse

   (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

   (2)If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)       any joint ownership of real estate or other major assets; and

   (ii)      any joint liabilities; and

   (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day‑to‑day household expenses; and

   (b)the nature of the household, including:

   (i)       any joint responsibility for the care and support of children; and

   (ii)      the living arrangements of the persons; and

   (iii)     any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)       whether the persons represent themselves to other people as being married to each other; and

   (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)     any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)       the duration of the relationship; and

   (ii)      the length of time during which the persons have lived together; and

   (iii)     the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long‑term one.

   (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).