Wang (Migration)
[2024] ARTA 822
•19 November 2024
Wang (Migration) [2024] ARTA 822 (19 November 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Bing Wang
Respondent: Minister for Home Affairs
Tribunal Number: 2119875
Tribunal:General Member C Kannis
Place:Perth
Date: 19 November 2024
Decision:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations
·cl 820.221(1)(a) of Schedule 2 to the Regulations
Statement made on 19 November 2024 at 11:55am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married two months after meeting – financial, household and social aspects of relationship and nature of commitment – limited evidence provided with application – length of relationship – applicant’s health and sponsor’s care – future plans – documentation and supporting statements – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.211(1)(a)
CASE
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 December 2021 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 13 June 2018 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 did not satisfy cl 820.211(2)(a) because the delegate was not satisfied that she was the de facto partner or spouse of the sponsor as defined under the Act.
4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
5. The matter was listed for hearing on 7 January 2025. Prior to that hearing the applicant provided additional documents and submissions.
6. Having considered the submissions and accompanying documents and after seeking further information from the applicant, the Tribunal considers that that the issues for determination can be adequately determined in the absence of the parties to the proceeding and that it should make a decision that is wholly favourable to the applicant without a hearing pursuant to s 106(3) of the Administrative Review Tribunal Act 2024.
7. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it. The Tribunal was also satisfied that the issues for determination can be adequately determined in the absence of the parties to the proceeding.
8. The applicant was represented in relation to the review.
9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s 5F of the Act.
Clauses 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 spouse of the sponsor who is an Australian citizen.
Section 5F 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship; the nature of the household and the persons’ commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.The applicant is a Chinese national.
In the Application for migration to Australia by a partner the applicant stated that she and the sponsor met on 23 March 2018 and were married on 20 May 2018.
Whether the parties are in a spouse or de facto relationship
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The evidence provided included a Marriage Certificate showing the applicant and the sponsor married on 20 May 2018 in New South Wales.
On the basis of the written evidence before it the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s 5F(2)(a).
The Tribunal considered the reg 1.15A(3) matters.
Are the other requirements for a spousal relationship met?
Financial aspects of the relationship
The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.
In a joint written statement dated 8 June 2018 the parties stated that they opened a joint account and the sponsor gives all his wages to the applicant for family expenses and she contributes her savings in China for their daily expenses.
In a written statement dated 16 October 2024, the applicant stated:
Currently, I work as a cleaner while my husband, Francis SHER, works as a courier delivery man. Both of our employments are paid in cash. The cash will then be deposited into our joint bank account. As a result, there are no payments made into the joint bank account as ‘wages’ but rather known as ‘ATM deposits’. The regular transfers from a third party known as ‘Louis Kok Loon’ is for the purposes of money exchange. Louis is a money changer whom we trust and often exchange currencies with. The regular transfers of $760.00 to Challenge Property Group made in the joint bank account are to pay the property agent. In terms of insurance, Francis and I have never had individual health insurance prior to our joint health insurance. It used to be $54.89; however, we stopped paying for it as we had cancelled it. The insurance payments can be seen on our joint bank statements.
Evidence that the parties opened a St George account in their joint names on 23 May 2018 was provided. Statements for the account for the periods 31 May 2018 to 7 June 2018, 23 November 2018 to 22 May 2019, 18 January 2020 to 17 July 2020, 2 February 2021 to1 April 2021 and 2 September 2024 to 28 September 2024 were provided. Credit transactions included ATM deposits and debit transactions included payments made to Woolworths.
There was no evidence of joint ownership of assets or joint liabilities or any legal obligations owed to the other party and the Tribunal so finds.
There was limited evidence of pooling of financial resources and any sharing of day-to-day household expenses.
The Tribunal finds that there is some pooling of financial resources and sharing of day-to-day household expenses at the time of application and time of decision and that this is an indicator of a genuine and continuing spousal relationship.
Nature of the household
The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.
In a joint written statement dated 8 June 2018 the parties stated that they commenced cohabitation on 16 April 2018 and that the applicant was responsible for the cooking and cleaning.
A Residential Tenancy Agreement in the parties’ joint names for a property at Clissold Parade Campsie NSW 2194 (Clissold Parade) was provided. The term of the lease was 16 April 2018 to 16 October 2018.
Correspondence addressed to the parties individually at Clissold Parade dated in 2018 was provided.
A Residential Tenancy Agreement in the parties’ joint names for a property at London Street Campsie NSW 2194 (London Street) was provided. The term of the lease was 10 November 2018 to 9 May 2019.
Correspondence addressed to the parties jointly and individually at London Street dated in 2019, 2020, 2021, 2022, 2023 and 2024 was provided.
A Residential Tenancy Agreement in the parties’ joint names for a property at Campsie Street Campsie NSW 2194 (Campsie Street) was provided. The term of the lease was 25 September 2024 to 24 September 2025.
Correspondence addressed to the parties jointly at Campsie Street (undated) was provided.
In a written statement dated 16 October 2024, the applicant stated:
Francis and I had to move from London St, Campsie NSW to Campsie Street, Campsie NSW as our previous landlord sold the property. When it comes to household chores, my husband does majority of it. As my state of health is not entirely in a good place,
Francis looks after me with extra care. He does not allow me to do any housework. He is a wonderful, caring and kind man who treats me preciously with lots of unconditional love. I would help him with the household chores whenever I have the time.With my health condition, I have lost a lot of my self-esteem and confidence, which
ultimately led to my moodiness and depressive state. I would over-think and get worried that Francis will give up on our relationship. It is all in my head. Francis has been very considerate, understanding and lovely towards me, always cheering me up and helping me feel good about myself and reassuring me with words of love and affirmation. Francis has indeed helped me gain so much confidence in myself and his support and warmth are unmeasurable. On 25 September 2024, Francis and I have moved home to Campsie Street, Campsie NSW 2194. Please refer to the lease agreement provided and copies of electricity bills of the new address
In a statutory declaration dated 29 October 2024 the applicant stated that the sponsor does the majority of household chores due to her health. She said they moved from London Street to Campsie Street on 25 September 2024.
In a statutory declaration dated 29 October 2024 the sponsor stated that the applicant’s serious medical challenges have taken a toll on her physical health and as a result she struggles with household chores so he steps in taking the workload.
The Tribunal finds that the evidence presented relating to the parties’ residential addresses and the nature of the household at the time of application and at the time of decision is an indicator of a genuine and continuing spousal relationship.
Social aspects of the relationship
The Tribunal considered the evidence in relation to the social aspects of the relationship including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.
In a written statement dated 16 October 2024, the applicant stated:
In around January 2024, my father came to Sydney to visit my husband and me for a month. My father was very happy to see that Francis treats me well and takes good care of me. My husband and I planned to go back to China to visit my parents and friends in August 2024. Please refer to flight tickets dated 13 August 2024. Unfortunately, my health was poor and we could not go. Two new copies of Supporting Statements are also provided in support of the legitimacy of my relationship with Francis, as to why they believe our relationship is genuine and continuing. Additionally, while Francis and I would love to travel more often our work schedule is extremely busy and tight. We have plenty of discussions about taking
breaks and holidays together and plans are still in the process until everything is more settled and stable.Photographs of the parties’ wedding were provided. Photographs of the parties with other people in social settings including described as photographs taken in September 2023, November 2023, January 2024 and in April 2023 at the Royal Easter Show were provided
Two statutory declarations dated in June 2018 made by friends of the parties, Ms Angela Mullins and Ms Wei Pei were provided. Ms Mullins had known the applicant for 1 to 2 months and her reason for her belief that the parties’ relationship was genuine and continuing was that she had seen real passion and emotion when they were together. Given the minimal time Ms Mullins had known the applicant and the general nature of her reason for her belief about the nature of the parties’ relationship, the Tribunal gives this evidence minimal weight.
In her statutory declaration Ms Pei indicated she had known the sponsor for 2 months and her reasons for her belief that the parties’ relationship was genuine and continuing included that the applicant had taken care of the sponsor when he was injured and that she can feel the applicant loves the sponsor. Given the minimal time Ms Pei had known the sponsor and the general nature of her reasons for her belief about the nature of the parties’ relationship, the Tribunal gives this evidence minimal weight.
Ms Pei made a later statutory declaration dated 16 October 2024 in which she stated that her reasons for her belief that the parties’ relationship was genuine and continuing included that she attended the parties’ wedding, that they rely on one another for emotional and physical support and that they plan to have a child together but due to the applicant’s health condition, she cannot conceive temporarily until she gets better. Given the period of time Ms Pei has known the parties and her reasons for her belief about the nature of the parties’ relationship, the Tribunal gives this evidence some weight.
A statutory declarations dated 16 October 2024 made by a friend of the parties, Ms Xuehui Wang, was provided. Ms Wang had known the parties for 6 years and her reasons for her belief that the parties’ relationship was genuine and continuing included that she attended their wedding, that the sponsor shows affection and love towards the applicant and that they give encouragement and motivation to each other. The Tribunal gives this evidence some weight.
The parties’ Individual Taxation Returns for 2023 and 2024 were provided and showed they declared each other as their spouse during the relevant financial years.
There was minimal evidence that the parties represented themselves to other people as being in a spousal relationship with each other at the time of application. Based on the written and documentary evidence, the Tribunal is satisfied that the parties represented themselves to other people as being in a spousal relationship with each other at the time of decision.
The nature of the persons’ commitment to each other
The Tribunal considered the evidence in relation to the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term.
In a joint written statement dated 8 June 2018, the parties stated that soon after they commenced cohabitation the sponsor injured his foot and the applicant took care of him during his recovery. They said they plan to sell the applicant’s property in China and buy a café business for the sponsor in Australia. They further stated that they plan to have two children in the future.
In a written statement dated 16 October 2024, the applicant stated:
While I understand that Francis and I entered into a marriage two months after meeting each other, such circumstance is not uncommon these days particularly with young couples like us. When there is a spark and mutual understanding and familiarity between two people such as Francis and me, we only wanted to be with each other and keep developing our relationship further and further. The both of us are mature individuals and believed that time should not be stipulated on when two people who are in love should get married.
I truly believe that when two individuals are so certain about one another, it does not matter how quickly the relationship is developed and how fast the marriage occurs or when it should occur. The most important thing is that Francis and I love each other and we are on the same page about our future. Francis and I plan to have a child of our own. Unfortunately due to my bad health, I am unable to conceive temporarily until I am fully recovered. While others may judge our relationship based on both of our appearances, our love for each other is so genuine and real that words cannot even describe it.
There is a mutual obligation, companionship, emotional support and long term planning within our married relationship. Francis and I see our relationship as a long term one and we are committed to a shared life as a married couple to the exclusion of all others. We will continue to embrace each other and continue to overcome any obstacles we have together as a team.
In a statutory declaration dated 29 October 2024 the applicant stated that the sponsor is very considerate and understanding towards her and is always cheering her up and reassuring her with words of love and affirmation. She said they plan to have a child however she is unable to conceive until she is fully recovered from her medical condition. A medical certificate dated 18 October 2024 certifying that the applicant is suffering from anxiety and depression with symptoms of acrophobia was provided.
In a statutory declaration dated 29 October 2024 the sponsor stated that the applicant brings joy into his life and that they nurture each other with love and care, both emotionally and physically.
Conclusion
Having considered carefully all the evidence of the relationship cumulatively and collectively, the Tribunal finds that at the time of application and at the time of decision the parties were and remain in a committed long-term relationship. In making this determination the Tribunal has taken into account that the parties have been married for 6.5 years, that they have resided together during that time, that they provide each other with emotional support and that they have future long-term plans together.
Based on the evidence the Tribunal concludes as follows:
- The parties are married to each other under a marriage that is valid for the purposes of the Act;
- they are not living separately and apart on a permanent basis and they see their future as a long-term one;
- they have a mutual commitment to a shared life together to the exclusion of others; and
- the relationship is genuine and continuing.
On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision. Therefore, the applicant meets cl 820.211(2)(a). There is no evidence indicating that the applicant does not satisfy the sub-criteria in cl 820.211(2)(c) or (d). The Tribunal finds that the applicant meets cl 820.211(2) and that she continues to meet the requirements of cl 820.211(2) at the time of decision. Therefore, the applicant meets cl 820.221(1)(a).
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations
·cl 820.221(1)(a) of Schedule 2 to the Regulations
Date(s) of hearing: N/A
Representative for the Applicant: Ms Shiran Wang (MARN: 1281303)
ATTACHMENT - Extract from Migration Regulations 1994
1.15A Spouse
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.
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).
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.
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).
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