WANG (Migration)

[2016] AATA 4897

WANG (Migration) [2016] AATA 4897 (8 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms XUEDONG WANG

CASE NUMBER:  1507451

DIBP REFERENCE(S):  BCC2014/1042339

MEMBER:Kira Raif

DATE:8 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 June 2016 at 3:01pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – De facto relationship – Couple’s lack of knowledge of each other – Unfamiliar with each other’s daily routines – Applicant unable to recall details about the Sponsor’s family – Communication limited to basic matters – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth) r 1.09A Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 28 May 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of China born in September 1985. She applied for the visa on 23 April 2014 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant was the de facto spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the sponsor’s daughter and a friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the 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 applicant claims to be the de facto partner of the sponsor who is an Australia citizen.

6. ‘De facto partner’ is defined in s.5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

7. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3).

   Are the parties in a de facto relationship?

8. The Tribunal acknowledges that a substantial amount of documentary evidence has been presented with the application and to the Tribunal, which seeks to address the various aspects of the relationship. However, such evidence does not satisfy the Tribunal that the relationship is that of de facto partners or is a genuine one. Such evidence does not overcome the Tribunal’s concerns noted elsewhere. The Tribunal is of the view that if the relationship was not a genuine one, it would still be possible to prepare, or obtain, a substantial amount of evidence of the kind that has been presented with application, such as the phone bills, letters to the same address, photographs, evidence of joint activities and statements from third parties. In the Tribunal’s view, such evidence may be available whether or not the parties are in a genuine relationship and whether or not both have commitment to such a relationship. That is, the fact that the parties have taken steps to obtain such evidence does not necessarily reflect on the nature of their relationship. It may equally reflect on their commitment to prepare evidence that the parties perceive as being necessary to show in a spouse case to achieve a favourable outcome. More is needed to satisfy the Tribunal that the relationship is genuine and that there is a genuine commitment to the relationship. The parties have not done that.

9. The Tribunal is concerned about the applicant’s visa history. She informed the Tribunal that she travelled to Australia on a Student visa and did two English courses but had not completed either course. She clearly did not progress in her studies. She also informed the Tribunal that she had not done any study since the time she applied for the Partner visa, stating the study was too expensive. The Tribunal is concerned that the applicant simply made the decision that it was cheaper for her to find a partner and apply for a Partner visa than maintain a Student visa.

10. The applicant informed the Tribunal that her parents have no work and may farm some land in China. Her brother works in a factory. It is not apparent that the applicant’s family had the financial capacity to support her study in Australia. The applicant told the Tribunal that a friend mortgaged a property and lent her money to come to Australia but she could not explain why that friend was so generous to her. The applicant did not pursue much study, having attempted two English courses and without completing either course. She said she wanted to do an accounting course but realised it was too hard with her limited English. In the Tribunal’s view, the applicant would have realised that well before she travelled to Australia. The Tribunal is not satisfied that the applicant ever intended to study in Australia and the Tribunal is not convinced that the applicant’s real purpose of coming to Australia was to study. The Tribunal is concerned that, having spent considerable sum of money to travel to Australia, the applicant was seeking a means of staying in Australia and found the Partner visa to be the most suitable option.

11. The Tribunal is concerned that the applicant’s decision to enter this relationship was governed entirely by the visa issues and not by her commitment to this relationship. Although the Tribunal acknowledges that these matters are not mutually exclusive, the Tribunal has formed the view that in this case, migration outcome is the sole motivation for the applicant to enter this relationship.

12. The Tribunal questioned the applicant about the living arrangements. The applicant thought they lived in a public housing property but she said was not sure because she does not understand Australia. The Tribunal notes that the applicant does not need to “understand Australia” to be able to speak to her partner to ask about their place of residence. The applicant then said that she has limited English to be able to communicate with the sponsor and they only talk about simple matters. Putting aside the Tribunal’s view that a conversation about a place of residence is a simple one, the Tribunal is concerned by the applicant’s claimed inability to communicate with her partner on any matter of complexity. The Tribunal is not convinced that a couple is able to form a mutual commitment to a relationship in circumstances where they are limited to very basic conversations.

13. The Tribunal is prepared to accept that the applicant and the sponsor live at the same address. However, the Tribunal is not convinced that they have established a joint household because the Tribunal is not satisfied that they have adequate knowledge about each other or that they have adequate communication with each other. There were discrepancies in the couple’s oral evidence to the Tribunal that cause the Tribunal to question the nature of their living arrangements. For example,

    a.The Tribunal asked both parties about the applicant’s last day of work. The sponsor said she started 8.30 pm and finished at 4 am or 5 am. The applicant said she started at 10 pm and finished at 3 am. The sponsor said he picked her up from work, so he might be expected to be aware when the applicant was at work. The applicant said that she spent time cleaning and talking to friends and her time at work was extended but the Tribunal’s question was about the time she had spent at work, not about the nature of the work.

    b.The applicant informed the Tribunal they do grocery shopping on Sundays and Thursdays. The sponsor said they shop on Mondays or sometimes on Sundays and Thursdays. The applicant said they shop at the Chinese shops at Auburn, including meat shops and vegetable shops but rarely at the big shops. The sponsor said they normally shop at Woolworths.

14. The Tribunal is of the view that if the couple did establish a joint household, they should be more familiar with such arrangements.

15. The applicant informed the Tribunal that she and the sponsor are considering having a baby. She said she consulted a doctor and had a blood test and was recommended medication. However, she could not state what the medication was or what it is supposed to do. The sponsor informed the Tribunal they would not have a child unless the applicant gets a visa and he had no knowledge about the outcome of the applicant’s blood test or the doctor’s recommendation. The applicant’s lack of knowledge about the medication and the sponsor’s failure to inquire about the outcome of the applicant’s actions suggest that the couple have little interest in the matter. The applicant also informed the Tribunal that the sponsor has not done any tests even though she asked him to take the tests. The Tribunal is not satisfied that the applicant has a genuine intention of having a child with the sponsor.

16. The Tribunal questioned the applicant about the social aspects of the relationship. The applicant suggested she had a close relationship with the sponsor’s children. She said that she sees them quite frequently. However, she had difficulty recalling their ages and could not state what work they are doing. It is unclear to the Tribunal how it is possible for the applicant to have regular contact with the sponsor’s children, yet have so little knowledge about them. The applicant also did not know which schools the grandchildren attend. The Tribunal asked the applicant about her communication with the sponsor’s children. She claims she speaks to them but not much. She then said that they do the talking and she does not say much and if she does not understand, she does not ask. The applicant said the children speak to her partner predominantly because her English is limited. The Tribunal is not convinced that there is a close relationship with the sponsor’s children and the Tribunal is not satisfied the applicant is able to communicate with them effectively. Similarly, the applicant was unfamiliar with the circumstances of the sponsor’s siblings and was not sure how many live in Australia and how many live in Lebanon. She claims she asked the sponsor but he did not tell her. In the Tribunal’s view, that makes little sense that the sponsor would withhold that information. The Tribunal is not convinced that the applicant has made any effort to establish a meaningful relationship with the sponsor’s family.

17. The applicant provided with her application statements from third parties, as well as a number of photographs. Additional materials have been provided to the Tribunal and the Tribunal received oral evidence from two witnesses. The Tribunal accepts that the parties have represented themselves to others as being in a relationship and had undertaken joint social activities. The Tribunal accepts that some of the friends and relatives believe the relationship to be a genuine one.

18. The Tribunal questioned the parties about the financial aspects of their relationship. The applicant’s evidence to the Tribunal is that they only have one account, which is a joint account. The applicant said that the sponsor used to have a different account but closed it when they formed a relationship. (The sponsor’s evidence to the Tribunal is that he added the applicant to the existing account). The applicant said that the sponsor’s Centrelink payments are deposited into the joint account but she makes no contribution to it because she is paid in cash. It is unclear to the Tribunal why there was any need to open a different joint account given that only one party makes a contribution to it. The applicant suggested it was simpler but it appears it would have been simpler for the sponsor to add the applicant’s name to his existing account, as he claims to have done, rather than close that account and open another one. The Tribunal is concerned by the fact that the couple do not appear to have discussed the matter, or that the applicant has little understanding of the matter, and the Tribunal has formed the view that only reason the couple opened a joint account was to provide evidence to Immigration.

19. The Tribunal has formed the view that the couple have no knowledge of their financial arrangements. Thus,

    a.The applicant was unable to state the type of Centrelink payment the sponsor was receiving, stating she did not ask. The Tribunal is mindful that this is the primary source of income for the couple, so it may not be unreasonable, in the Tribunal’s view, for the applicant to have some awareness about the type of payments the sponsor receives.

    b.Both the applicant and the sponsor said they operate a joint account. The applicant said there is about $1300 in that account, the sponsor said there is $1000 in that account and that he took few hundred dollars from that account recently. The applicant appeared unaware of that transaction. The applicant said in the past month a friend deposited $5000 into her account and she gave that money back to her friend. The sponsor said there were no significant transactions in the joint account in the past month. The representative submitted that the sponsor may have thought the question was about their own funds but the Tribunal’s question was about significant transactions in that account, irrespective of the owner of the funds.

20. The Tribunal accepts that the parties operate a joint bank account but the Tribunal is not convinced that this account represents the pooling of their funds or the sharing of resources because the Tribunal has formed the view that the parties have little knowledge about the operations of that account or about each other’s financial circumstances.

21. There is no evidence of joint ownership of assets or of joint liabilities. In the Tribunal’s view there is very limited pooling of financial resources and sharing of daily expenses. The Tribunal is not satisfied there are legal obligations owed to the other party.

22. There were other inconsistencies in the parties’ oral evidence to the Tribunal that the Tribunal considers problematic. For example,

    a.The applicant said she is looking for other work, for example in a restaurant. She said it is difficult to find a job because of her limited English and when asked if she considered working in a Chinese restaurant, she said she did not. The sponsor said she is looking for jobs in a Chinese newspaper (in which case lack of English may not be much of an issue) and she is considering doing massage work. The Tribunal has formed the view that the parties had not discussed the matter with each other at all and lack awareness on the issue.

    b.The Tribunal asked the applicant and the sponsor about the sponsor’s previous employment. The applicant said he used to work as a cleaner. The sponsor said he used to run a nightclub and did not do any other kind of work. He then said he also worked in a restaurant. 

    c.The applicant said she undertook two English courses since coming to Australia but had not completed either because it was too hard. The sponsor said she probably did only one course, although he was not sure. He said she did not finish the course because she wanted to work and help him. The applicant said she planned to study accounting. The sponsor said she only planned to study English and had no plans to study anything else. The Tribunal is concerned about the couple’s lack of knowledge about each other.

    The applicant informed the Tribunal that she did not know how to state ‘accounting’ in English and how to explain this to her partner. That explanation exacerbates the Tribunal’s concern that the parties are unable to communicate effectively with each other on matters of any significance.

    d.The applicant said her brother works in a factory. The sponsor said he used to have a shop but is now retired. The applicant said the sponsor confused her brother and her cousin and maybe he misunderstood her. She did not appear confident in the sponsor’s ability to understand her.

23. The applicant repeatedly informed the Tribunal that she and the sponsor were nervous. The representative also submits that as a Chinese, the applicant would be nervous about any court appearance. The Tribunal is mindful that the Tribunal’s questions were in relation to basic aspects of daily life and the Tribunal is not convinced that the nervousness is the reason for the inconsistencies and deficiencies in evidence identified above.

24. The applicant also repeatedly informed the Tribunal that her English is poor and that as a result, her ability to communicate with the sponsor is limited. The Tribunal has formed the view that the parties do not adequately communicate with each other and have little knowledge about each other. The Tribunal acknowledges the submission from the applicant’s representative that inability to communicate should not be fatal to this application and does not preclude the existence of a genuine relationship. The representative submits that the level of communication is sufficient for their purposes. In the Tribunal’s view, ability to communicate with one’s partner, while not determinative, is a very significant aspect of the relationship. That is, the Tribunal is not convinced that the parties were able to form a genuine and mutual commitment to this relationship if they are unable to effectively communicate with each other and their communication is limited to very basic matters, as the applicant repeatedly stated to the Tribunal. The Tribunal is not satisfied there is a mutual commitment to the relationship. The Tribunal is not satisfied the couple view their relationship as a long term one. Given their limited capacity to communicate, the Tribunal is not satisfied they draw on each other for comfort and emotional support.

25. The Tribunal acknowledges that to date, the relationship existed for a number of years. The Tribunal acknowledges it is registered in NSW. The Tribunal acknowledges that it is known to others and also that the parties had travelled together and socialised together. Against these considerations, the Tribunal has formed the view that the applicant’s motivation in entering this relationship was to enable her to remain in Australia. The Tribunal has formed the view that the parties do not have adequate knowledge about each other. The Tribunal is not satisfied that they communicate with each other or take sufficient interest in each other and the Tribunal is not satisfied they view the relationship as a long term one. The Tribunal is not satisfied there is mutual commitment to the relationship. Having considered all the circumstances of this relationship, the Tribunal is not satisfied the applicant is the spouse of the sponsor. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of application and the time of this decision. Therefore the applicant does not meet cl.820.211(2))(a) cl.820.221. There is no evidence that the alternative requirements in cl. 820.211 are satisfied. The Tribunal is not satisfied the applicant meets cl. 820.211 and cl. 820.221.

    Conclusion

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

   DECISION

2. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Kira Raif
   Senior Member