Wang (Migration)

[2022] AATA 3634

Wang (Migration) [2022] AATA 3634 (28 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ruihuo Wang

REPRESENTATIVE:   Ms Xiyue Zha(MARN: 1799162)

CASE NUMBER:  1821391

HOME AFFAIRS REFERENCE(S):          BCC2016/512077  

MEMBER:Brygyda Maiden

DATE:28 August 2022

PLACE OF DECISION:  Melbourne

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) of Schedule 2 to the Regulations; and

·cl 820.221(1)(a) of Schedule 2 to the Regulations.

Statement made on 28 August 2022 at 5:54pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – valid marriage – household arrangements – sharing of housework – limited pooling of financial resources – joint travel – social recognition of the relationship – mutual emotional support – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

statement of decision and reasons

application for review

1. This application for review relates to a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the “Act”).

2. Ruihuo Wang, 73, a Chinese national (the “applicant”) applied for the visa on 3 February 2016 on the basis of her relationship with Kang Wu, 85, her sponsor (the “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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate found that the applicant did not meet the definition of spouse or de facto partner under s 5F or s 5CB of the Act.

4. The applicant appeared before the Tribunal on 27 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The hearing was conducted with the assistance of interpreters in the Mandarin and English languages.

5. The applicant gave evidence that she was taking the sponsor to see a [specialist] as the sponsor may have [condition 1].  A medical referral was shown to the Tribunal by the applicant at the hearing and a copy of the referral provided to the Tribunal after the hearing. The referral provided was from [a named] Medical Centre dated 22 April 2022 addressed to [a named doctor] of the [named health service] “...for an opinion and management of his ongoing [condition 1].”  The Tribunal accepts this evidence and has taken this into account when considering the sponsor’s evidence.

6. The applicant was represented in relation to the review by a registered migration agent (the “representative”).

7. On 1 May 2022, the representative provided submissions for and on behalf of the applicant to the Tribunal.  When the applicant was asked by the Tribunal at the hearing whether she had read the submissions it became apparent that the applicant had not as she could not read English and that her “daughter” (though it appears that the applicant meant her daughter-in-law as the applicant does not have a daughter of her own) deals with these matters.   A post hearing statutory declaration of the applicant dated 27 July 2022 was submitted to the Tribunal indicating that the applicant had been provided with a Chinese translation of the submissions and that the applicant had read the contents of the submissions and confirmed their reliability (the “Submissions”).

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

   Consideration of claims and evidence

9. The issue in the present case is whether the applicant is in a spouse or de facto relationship with the sponsor for the purposes of cl 820.211(2)(a).

   Background

10. At the hearing, the applicant gave oral evidence that the parties’ relationship was quite “extraordinary”.  The sponsor was married to the applicant’s eldest sister until her sister’s death and it was in that context that the parties initially met.  According to the sponsor’s relationship history statement in the Department file he met the applicant in 1962 which was the same year that he married her sister.  This indicates that the parties have known each other for approximately 60 years.

11. The parties’ relationship changed when the applicant’s sister became unwell with advanced liver cancer and the applicant came to look after her.  At that stage, the applicant’s then husband had passed away, the applicant was in her 50s and doing odd work here and there. Upon looking after her sister, the applicant got to know the sponsor better.  Together, they cared for the applicant’s sister for 380 days.  The applicant would cook, attend to household chores and take food to the hospital.  According to the applicant, hospitals in China require a lot of input from the patient’s family members in terms of caring for the patient. 

12. The parties’ relationship did not develop until after the applicant’s sister (the sponsor’s then wife) passed away (according to the decision record she died in 1999). In order to thank the applicant for the care that she had provided to their mother (the applicant’s sister), the sponsor’s children proposed that the applicant travel to Australia and see the world.  The applicant claims that it was in Australia that the applicant got to know the sponsor better. 

13. In 2012, according to the applicant, the sponsor suggested the parties start a relationship, and the applicant at that stage declined due to: the sponsor’s age (him being 11 years her senior), the opposition of some family members to the relationship who thought it scandalous that two sisters marry the same man and concerns the applicant had about the effect on the dynamic between her own children and her sister’s children. The applicant gave evidence that one of her own children thought that she deserved to have a loving partner because the first half of her life had been hard in China. The parties were engaged in 2013.

    Are the parties in a spouse or de facto relationship?

14. 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 according to the immigration status in the decision record, is an Australian permanent resident.  The applicant submitted a visa entitlement verification online visa details check dated 27 July 2022 which indicates that the sponsor is a resident of Australia.  According to the Department’s movement records, it seems that he was granted an AX 103 visa on 1 August 2013.  Accordingly, the Tribunal accepts that at the time of application and time of decision that the sponsor was a permanent resident of Australia.

15. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has had the benefit of a marriage certificate provided by the applicant and issued in Victoria, Australia under the Births, Deaths and Marriages Registration Act 1996 (Vic) which indicates that the marriage was solemnised by the applicant and sponsor on 12 February 2014. The Tribunal accepts this certificate as valid. Accordingly, on the evidence, the Tribunal accepts 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). However, this evidence alone does not in the Tribunal’s view demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing.

    s 359A of the Act, letter

17. On 3 August 2022, the Tribunal wrote to the applicant, and invited the applicant to comment on or respond to certain information which the Tribunal considers would, subject to the applicant’s comments or responses, be the reason, or part of the reason, for affirming the decision under review, but noting, that the Tribunal had not yet made up its mind about the information.  The particulars of that information are extracted below:

    
    
    

    a. when asked at the hearing how many people live with you, you answered that

    no other people live in the house that “we” live in. However, the sponsor gave
    oral evidence that you and he live in one room, and there are also five tenants
    living in the property. After the hearing you submitted a statutory declaration
    dated 27 July 2022 which was translated into English which stated “There are
    six bedrooms in the property. I live together with my husband in one of the
    bedrooms; and the other five bedrooms are leased to tenants, separately.”;

    b. when asked at the hearing when the Bendigo Bank account was opened, you
    answered when you were formally recruited by your employer and it was
    opened a year or two ago. When also asked why your wages weren’t being
    paid into the joint account (which was a pre-existing account with your sponsor,
    statements of which you provided the Tribunal which start from 6 November
    2015) you answered that was a good question, that you don’t like using cards
    so you can withdraw cash and store cash at home and then pay for things like
    travel and airfare. That it was just a habit and you prefer using cash. After the
    hearing on 27 July 2022 you provided to the Tribunal a statutory declaration
    which was translated into English which stated: “I was employed by Home Care
    Case Management. During my employment period, my salary bank account
    and super account were set up by my employer.”

    c. When asked at the hearing about who does the cooking and housework, you
    answered that the cooking, cleaning, sweeping the floor is all done by you, and
    you also do the grocery shopping because of the sponsor’s age, he has
    mobility issues and you are concerned he might fall. You stated that if he
    broke any bones it would be serious. When asked whether the sponsor does
    any chores around the house, you stated he does things around the house but
    in a limited capacity. He would attend to the garden, plant vegetables, pulls out
    weeds, trims plants and flowers and takes the bins out and brings the empty
    bins back.

    To meet the definition of ‘spouse’ under s. 5 F of the Act, you must be in a ‘married
    relationship’. There are four requirements of being in a ‘married relationship’ for the
    purposes of the Act. You must be married to each other under a marriage that is valid
    for the purposes of the Act, and you must have a mutual commitment to a shared life
    to the exclusion of all others, and the relationship between you must be genuine and
    continuing and you must live together or not live separately and apart on a permanent
    basis.

    The information indicates, that the matters upon which you and the sponsor appear to
    be inconsistent on, and matters that you yourself appear to be inconsistent on are
    matters about which parties that have a mutual commitment to a shared life as a
    married couple, are in a genuine and continuing spousal relationship and are living
    together should be consistent.

    The information is relevant to the review because if we relied on the inconsistent
    information, we may not be satisfied that you and the sponsor are in genuine and
    continuing relationship, and we may not be satisfied that you have a mutual
    commitment to a shared life together to the exclusion of all others, that you both live
    together, and not separately and apart, on a permanent basis.

    The information is relevant to the review because if we relied on the inconsistent
    information, we may not be satisfied that your evidence or the sponsor’s evidence was
    credible or reliable and as such the Tribunal may not accept your claims to be
    spouses. This is relevant to our assessment of the overall evidence before us, to our
    findings of the circumstances of the relationship, the matters set out in r. 1.15A(3), for
    instance, the financial aspects of the relationship and the nature of the household and
    to our findings as to whether you and your sponsor are in a spousal relationship within
    the meaning of s. 5F(2).

    If we rely on this information when making our decision, we may not be satisfied that
    you and your sponsor are in a genuine and continuing relationship. We also may not
    be satisfied that you both live together and live separately and apart on a permanent
    basis, and you and your sponsor were not in a spousal relationship within the meaning
    of s 5F(2). This would be the reason, or part of the reason, for the Tribunal to affirm the decision of the delegate that is under review.

18. The Tribunal gave the applicant until 17 August 2022 to provide written comments or a response and the applicant responded in time.

    The applicant’s response to the number of people who live with the applicant

19. On the 15 August 2022, the applicant through her representative, provided the following submissions (“August Submissions”) in relation to the number of people who lived with the applicant:

    4. The information was inconsistent but it was not provided on purpose. The inconsistency was because of the understanding of the question. The applicant and the sponsor cannot use English so there was an interpreter assisting them at the hearing. When asked the applicant, she interpreted the question as “how many people are there living with you (as a family)”. The applicant assumed the member was asking whether they are living together with other family members, including the sponsor’s daughter and her family. In the applicant’s mind, she is living with her husband, who is the sponsor, only as a family in the property. None of those tenants are part of her family, so she answered “no other people live in the house that we live in”.

    5. Thus, from the applicant’s perspective, the hearing was held in relation to the refusal of her partner visa application. She did not expect that there would be any questions in relation to others who are not part of her family. When asked about the living arrangement, her first instinct was that the member was asking whether she is living with her husband. She interpreted the phrase “living together” as “sharing the same room and same bed”. Under these circumstances, the sponsor is the only person who is living with her. The applicant indicated that if the question was “are there any other people living with you” she would understand the member’s intention better and would provide the information accordingly.

    The Tribunal’s finding on the number of people who live with the applicant

20. The Tribunal does not accept the applicant’s explanation, as the Tribunal did not limit its question to how many family members were living with the applicant.  The applicant did not ask for clarification from the Tribunal and additionally, the applicant’s answer “no other people live in the house that we live in” is unequivocal.  The applicant’s oral evidence at the hearing was inconsistent with the sponsor’s evidence and inconsistent with the applicant’s post hearing statutory declaration dated 27 July 2022 which states that: “[t]here are six bedrooms in the property.  I live together with my husband in one of the bedrooms; and the other five bedrooms are leased to tenants separately.”  The applicant’s statutory declaration also supports the Tribunal’s findings in relation to the applicant’s oral evidence, and that her explanation is unlikely given the words that were used.  Given that the applicant’s oral evidence is not consistent with the sponsor’s or her later statutory declaration, the Tribunal has doubts about the truthfulness of the oral evidence as to the number of people that live with the parties.

    The applicant’s response to inconsistent information regarding her Bendigo Bank account

21. The August Submissions state:

    7. The salary account at Bendigo Bank was set up by the employer. The applicant has [sic] no knowledge about this bank before. She cannot even spell the bank name till now. The employer assumed the applicant had no knowledge about banking and finance, so they opened the account for the applicant.

    The Tribunal’s findings on the applicant’s response to inconsistent information regarding her Bendigo Bank Account

22. At the hearing the applicant gave evidence that the Bendigo Bank account was opened when she was formerly recruited by her employer and the reason the applicant gave for her wages not going to the parties’ joint account was because she did not like using cards, she prefers to withdraw cash.  After the hearing, the applicant submitted a statutory declaration that she signed on 27 July 2022 which indicates that the Bendigo Bank account was set up by her employer.  Although the Tribunal accepts that the applicant’s preference may be to use cash as opposed to a bank card the Tribunal does find the reason offered by the applicant for the opening of the Bendigo Bank account unlikely, particularly given that the applicant had a pre-existing Joint Account which could have been used to receive the payment of wages and withdraw cash.  Nominating the details of the Joint Account to the applicant’s employer would have been far simpler than to provide all the identity documents that are required in Australia to set up a new bank account.  The applicant’s explanation as to why the applicant’s wages were not paid into the parties’ existing joint bank account is unconvincing, and therefore the Tribunal has doubts about the truthfulness of the applicant’s oral and post hearing evidence. 

    The applicant’s response about chores performed by the sponsor

23. The August Submissions state:

    ….When the applicant said the sponsor does some gardening chores, she said the sponsor plants vegetables, pulls out weeds, trim plants and flowers. Normally, these are very physical-demanding tasks and do have a conflict in relation to the sponsor’s physical condition and the applicant’s oral evidence. However, the size of the vegetable garden is small and they are planting vegetables that do not need a high level of attendance. These kinds of vegetables are easy to take care of and need limited maintenance. It differs from the normal understanding towards planting and gardening.

    13. Also, the applicant would assist the sponsor to take care of the vegetable garden. They seldomly use fertiliser so there are not many weeds and it is easy to pull them out at an early stage because the roots have not gone deep. In terms of trimming plants and flowers, other than trimming large-size bushes that are normally seen along the pavement and used as the fence, the sponsor trims small plants, such as vegetables only. Trimming vegetables allows them to grow better and it is not a big garden task. It can be done by a small scissor [sic] or similar gardening tools. It is a more sophisticated task other than a physical-demanding task. For those “real” gardening tasks, including lawn mowing, overall garden caring, landscaping and hedging pruning etc are all done by others. The sponsor’s daughter-in-law could come to the property and do the lawn mowing on a regular basis. Other tasks are not necessary [sic] regularly [sic], once they need to do it, they will ask for assistant [sic]. The Happy Living has relevant service to support the sponsor to certain extent [sic].

1. The applicant also submitted a photograph of the sponsor squatting down and appearing to be doing gardening. The photograph was not date stamped.

   The Tribunal’s findings about chores performed by the sponsor

2. At the hearing the sponsor was suffering from visible mobility issues and appeared frail.  The sponsor’s mobility issues were also referred to in the August Submissions.

3. The applicant at the hearing stated that the cooking, cleaning, sweeping the floors and grocery shopping were done by her because of the sponsor’s more advanced age, mobility issues and the concern the applicant has about the sponsor falling.  The Tribunal accepted this evidence at the hearing as it seemed likely due to what the Tribunal observed as to the sponsor’s physical state.

4. At the time of application (thought the Tribunal notes it is not clear when the photograph was taken), the Tribunal accepts that the sponsor may well have squatted down and done the gardening, however, at the time of decision based on what the Tribunal saw of the applicant’s mobility at the hearing, in the Tribunal’s view the photograph is unlikely to be recent. The Tribunal accepts that the sponsor may undertake some limited “light” gardening work.  However, at the hearing no mention was made that the applicant assisted the sponsor with gardening nor that there was third party gardening assistance.

5. Additionally, in terms of the sponsor taking bins out and bringing empty bins back given his mobility this would in the Tribunal’s view be an increased fall risk and cause difficulties for the sponsor – particularly if the bins were heavy.  The Tribunal did not accept the applicant’s evidence of this at the hearing, and the bins were not dealt with in the applicant’s response.  At the time of decision, the Tribunal has concerns with the applicant’s credibility.  That being said, the Tribunal does accept that there is some sharing of the housework which is consistent with the sponsor’s health.  The Tribunal gives this some weight.

   Are the requirements for a spouse relationship met? Consideration of reg 1.15A matters

6. In order to ascertain whether the requirements for a spouse relationship are met, the Tribunal has considered the Department file, the Tribunal file, the documents submitted by the applicant to the Tribunal (including after the hearing), and the oral evidence that was provided by the applicant and the sponsor.

   Financial aspects of the relationship

7. The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.

8. In terms of joint assets, the sponsor gave oral evidence that the parties did not own any joint assets or real estate together.  The applicant’s oral evidence was that the parties had bought an investment product from Hang Seng Bank in China, and she did not think that they made a profit.  However, after the hearing the applicant provided a translated copy of an authorisation letter for Hang Seng Bank dated 19 April 2013 whereby the applicant designated the sponsor as her attorney to act on her behalf and deal with all matters in relation to her bank account including for example: withdrawing any cash, transferring or remitting money, and depositing money.  The authorisation does not support the position that the parties have together bought an investment product from Hang Seng Bank, however, it does support the position in relation to one party owing a legal obligation to another.  Because the documents submitted by the applicant do not support her oral testimony, the Tribunal finds that the parties both at the time of application and time of decision have no joint assets or real estate together.

9. The applicant gave evidence that the parties have no joint liabilities together. The Tribunal accepts this evidence.

10. The applicant gave oral evidence that she is employed part-time at Home Care Case Management Pty Ltd (her employment contract is dated 12 May 2021) and that her employment involves home based care. The applicant provided one pay slip for the period 1 March 2022 until 31 March 2022 which indicates that the applicant’s pay goes into a Bendigo Bank account.  Statements provided by the applicant from 1 January 2021 to 2 May 2022 (though pages dealing with transactions from 1 March 2022 to the statement end date are missing) indicate that the account is in the applicant’s name only and her wages are being paid into that account (the “Bendigo Bank account”).   Interestingly, the Bendigo Bank account statements suggest that very shortly after the applicant’s wages are deposited into the Bendigo Bank account the total amount (or sometimes fractionally less) is withdrawn (for example, on 14 January 2022 $1632 was deposited and on 18 January 2022 $1630 was then withdrawn).  The Tribunal has discussed earlier its credibility concerns as to the applicant’s evidence as to why the Bendigo Bank account was opened and why her wages are paid into the Bendigo Bank account rather than the parties’ joint account.

11. The applicant gave oral evidence that using EFTPOS is not her preference and the parties only use it for smaller payments, for larger payments the parties use cash. The applicant gave oral evidence that either the applicant or sponsor would return to China to withdraw their respective pensions to cover their living expenses in Australia, however, during the COVID-19 pandemic, the parties have been unable to travel, and the pandemic has made airfares excessively high. There was no evidence submitted to the Tribunal of any withdrawals of cash of the parties’ respective pensions in China.  In this respect, because the parties withdraw cash from their respective pensions and the applicant withdraws cash from her Bendigo Bank account the Tribunal is not satisfied as to the extent that the cash is pooled and therefore only gives this evidence some weight.

12. The Tribunal has had the benefit of the applicant’s submission of most National Australia Bank account statements in both parties’ names from 6 November 2015 until 28 April 2022 (“Joint Account”) which indicate that at the time of application and at the time of decision the parties had the Joint Account in place.

13. The Joint Account indicates joint spending by the parties for example for pharmacy items (Chemists’ Warehouse), supermarket purchases (Coles, Aldi, the Glen Asian Grocer and Woolworths) alcohol (Dan Murphy’s) amongst others.  However, in the almost seven year statement period there are a limited number of transactions which have occurred on the Joint Account (for example from 14 January 2022 until 28 April 2022 there were only 11 transactions which occurred one of which was an interest payment from the National Australia Bank). 

14. The applicant submitted part of her 2022 tax return which specifies the Joint Account as her banking information, the August Submissions clarify that this is for tax payments from the ATO (the Tribunal assumes what was meant was refunds).  Despite this, based on the limited transaction history in the Joint Account and as the applicant’s wages are being paid into a separate account in her name only, the Tribunal places only some weight on the extent of the parties pooling of financial resources.

15. The applicant submitted a letter from Centrelink to the sponsor dated 10 November 2015 pertaining to foreign pensions (the “Centrelink Letter”).  The letter indicates that the sponsor may be entitled to receive an “Old Age/Seniority Pension” from China and includes a copy of a request for foreign claim papers completed by the sponsor on 18 November 2015 addressed to the Ministry of Labour and Social Security Department of International Cooperation in Beijing China.  This is consistent with the oral evidence that the applicant gave that both parties have pension payments through Bank of China and that the parties have to return to China to withdraw the cash and use it in Australia to cover travel and eating at restaurants. No documentation was provided to evidence the existence of these pensions. Whilst the Tribunal accepts that the parties may have separate pensions in China, it has doubts as to the parties pooling of their resources, particularly given that once the applicant started generating income in Australia she opened the Bendigo Bank Account, appearing to deliberately separate her resources.

16. Attached to the Centrelink Letter is a special benefit review form (the “Centrelink Form”).  The Centrelink Form at item 30(1) lists the Joint Account and indicates that the sponsor’s share of the account is 50% and the applicant’s share is 50%.  The Tribunal accepts this evidence.

17. The sponsor also has his own Commonwealth Bank of Australia account.  This account   Statement 7 was provided (but only page 1 of 2) by the applicant from the period 1 October 2021 to 30 December 2021 which shows no transactions and that the account has a credit balance of $158.47.  The applicant gave evidence that this account could not be regarded as the parties’ income as the funds in that account can only be used to purchase medicine or daily necessities, it cannot be withdrawn.  This seems to be inconsistent with the Submissions which state that the “…sponsor is eligible to receive about 10 thousand allowance [sic] per year due to his age and health condition.  But it is not paid directly to the sponsor’s personal account.  The allowance is used to pay for the sponsor’s necessities, such as housework support, entertainment or enrichment activities, [and other specified items].”  Consistent with the Submissions, various Happy Living statements were provided by the applicant in the sponsor’s name for periods between May 2020 and March 2022.  Nevertheless, from the evidence given, it does not seem that money in the sponsor’s Commonwealth Bank of Australia account is pooled. 

18. Both parties gave oral evidence that they both have wills but each confirmed that neither is the beneficiary of the other’s will. The sponsor gave oral evidence that he does not have any Australian superannuation.  The applicant submitted a welcome letter dated 15 November 2021 from Hostplus superannuation fund.  In oral evidence the applicant stated when asked who the beneficiary of the superannuation fund was, that it should be her and the sponsor because they are the one family, and that she thought both her and the sponsor would both be entitled to it.  The choice of the applicant’s words “one family”, rather than “spouses” or something similar is of concern to the Tribunal because the parties have been family by way of being “in-laws” for many years prior to being married.  After the hearing the applicant submitted a statutory declaration which states that the applicant has “…never logged in the [sic] account, nor did I [the applicant] set any information for this account.  Hence, I do not know any information concerning this account, including the beneficiary…” .  The August Submissions also indicate that applicant did not know the password to her superannuation account.  On this basis, it seems that it is unlikely that the applicant has nominated a beneficiary. The Tribunal accepts this evidence and does not give it adverse weight.

19. There is some evidence of one party owing a legal obligation in respect of another in terms of the Hang Sang banking documents which are effectively an authorisation for the sponsor to act on the applicant’s account for example, withdraw any cash, transfer or remit money and deposit money. The Tribunal finds that there is some evidence of one party owing legal obligations in respect of the other at the time of application as the Hang Seng banking documents are dated 19 April 2013 and at time of decision as there is no evidence that the authorisation has been withdrawn.

20. There is no evidence that the parties share day-to-day household expenses. The submissions state that the parties “…only need to cover their daily groceries only as they are living in the sponsor’s daughter [sic] property, which is rent-free.  Ms. Ling WU [sic] [the sponsor’s daughter] is also in charge of paying utility bills, internet bills and mobile bills for them as part of her support to the couple.” The applicant gave consistent oral evidence that her niece (the sponsor’s daughter) paid for the property and the utility bills.  Similar consistent evidence was provided by the sponsor. The form 888 statutory declaration of Ling Wu dated 2 May 2022 (the “Ling Wu Statutory Declaration”) submitted by the applicant mentions that the house the parties’ are living it is one of Ms Wu’s husband’s houses that has been provided to the parties for them to live in. A further statutory declaration dated 27 July 2022 of Ms Wu (the “Ling Wu Second Statutory Declaration”) states that in relation to the property where the parties reside, Ms Wu and her “…husband pay for all the utility bills and internet.”  The Tribunal accepts the evidence in relation to the sharing of day-to-day expenses.

21. In terms of the financial aspects of the parties’ relationship at the time of application, there is a small amount of evidence.  There is the existence of the Joint Account which has limited transactions, there are no joint assets or liabilities, the Hang Seng bank account indicates some legal liability between of the parties to the other, and there is no evidence of the sharing of household expenses.  Accordingly, the Tribunal finds that there is limited information to suggest that financial aspects of the relationship are indicative of the parties being in a genuine and continuing relationship.

22. At the time of decision, given that the parties have been married for over eight years there is a smaller amount of evidence of sharing of their finances than would be expected.  Instead of pooling her wages into the parties’ already existing Joint Account the applicant opened a new Bendigo Bank account to have her wages paid into.  As discussed earlier, the reason the applicant gave for the opening of this account lacked credibility. There is a small amount of evidence of the pooling of financial resources with the Joint Account continuing to be used (though not as much was the Tribunal would have expected). The parties have no joint assets, real estate or liabilities.  As there is no evidence that the Hang Seng bank account has been closed or that the authority is withdrawn, there is still some evidence of owing legal obligations to one another.  There is little evidence of sharing of day-to-day expenses because the majority of household expenses such as rent, utilities and internet are borne by the sponsor’s daughter.  The Joint Account indicates that items such as food, alcohol are shared household expenses.  On balance, the Tribunal gives the financial aspects of the relationship a small amount of weight.

    Nature of the household

23. The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.

24. The Tribunal accepts that the parties do not have any children together or any children that they support. 

25. In terms of the living arrangements of the parties, as previously discussed, the applicant’s evidence in terms of the parties’ living arrangements was inconsistent with the sponsor’s oral evidence.  The applicant gave oral evidence that the house that she and the sponsor lived in had six bedrooms, she and her husband shared a bedroom and a bed and that other than them, no one else lived in the house.  The sponsor gave oral evidence consistent with the applicant’s post hearing statutory declaration dated 27 July 2022 and August Submissions that the property the parties live in belongs to the sponsor’s daughter, and the parties live in one of the bedrooms and the property has six bedrooms five of which are leased to tenants separately.  This is also consistent with the post hearing Ling Wu Second Statutory Declaration that the applicant submitted. For the reasons previously outlined, the Tribunal has credibility issues with the applicant’s oral evidence at the hearing.

26. The applicant provided numerous pieces of correspondence addressed to the parties at the Glen Waverley address, however, none of the correspondence provided was addressed to the applicant at the time of application. Even copies of the Joint Account statements which the applicant submitted to the Tribunal for a statement starting on 6 November 2015 and ending on 29 January 2016 are addressed to the sponsor only at the Glen Waverley address, which appears to be inconsistent with the applicant’s evidence and the Ling Wu Statutory Declaration Evidence of when the parties’ started living together. The address and contact details for the Joint Account statement did not change into both parties names at the Glen Waverly address until sometime after July 2016 after the parties had been living together for over 2 years (see statement from 30 January 2016 until 29 July 2016).  Although the Tribunal accepts that it is not uncommon for individuals to be sent separate statements for the same account to the same account (evidence of this has not been provided) or to take time to change their postal details, the Tribunal would have thought that the applicant would have done so within a number of months rather than years after she commenced living with the sponsor. Interestingly, Ms Wu’s husband Kwai Fong Chan in his statutory declaration dated 2 May 2022 makes no mention that the parties are living in a property he owns and instead states that they “live together under the same roof” but it is not clear when they started living together or living under the same roof means living in the same room, noting five of the six bedrooms in the property are tenanted. The lack of evidence in relation to the applicant living with the sponsor at the time of application is of concern to the Tribunal.  Conversely, the applicant did submit a small amount of correspondence addressed to the sponsor prior to the time of application indicating that he lived at the Glen Waverley address.

27. At the time of application, there is the oral evidence of the applicant and the Ling Wu Statutory declaration that indicate that the parties have been living together since 2014 (which is almost two years prior to the date of application).  However, given that the applicant submitted correspondence in support of her living arrangements, the Tribunal notes the lack of correspondence to both parties, the absence of correspondence to the applicant and the Joint Account statements not being addressed to both parties which is not consistent with the parties living together.  Because of this, the Tribunal finds that there is only some evidence to suggest the parties were living together at the time of application.

28. At the time of decision there is some evidence of correspondence being sent to the applicant at the Glen Waverley address which indicates that the parties are living together.  The Tribunal notes that even then the correspondence is limited and accepts that part of the reason for the lack of correspondence may be that the parties do not pay utilities as according to the parties’ evidence these are paid by the sponsor’s daughter.  The sponsor however has received considerably more correspondence than the applicant that is addressed to him at the Glen Waverley address. The Tribunal finds that there is some evidence that the parties were living together at the time of decision.

29. As for any sharing of the responsibility for housework, the applicant submitted form 888 statutory declarations of:

    a.Huanyu Wu dated 27 April 2022 who is the sponsor’s grandson and has known both parties for over 31 years (since he was born) (“Huanyu Wu Statutory Declaration”). He states that the applicant “…always cook [sic] for my grandfather [the sponsor] and taking [sic] really good care of him.” The Tribunal accepts this evidence.

    b.Xueying Zhu dated 18 July 2018 who at the time of swearing the statutory declaration had known the parties for 4 years from Melbourne Chinese Senior Education Society and has attended the applicant’s house (the “Zhu Statutory Declaration”).  She states that the sponsor helps the applicant with daily grocery shopping and gardening while the applicant did the cooking and washing.  Ms Zhu has also stated that when the sponsor “…was ready for outdoor activities Mr [sic] Wang helped him pack up. From hats, clothes, equipment to very tiny things like spare socks, etc.  She prepared everything for him in details [sic].”The Tribunal accepts this statutory declaration, as the evidence about the sponsor’s contribution to household chores is more likely given that the statutory declaration is four years old.

1. The Ling Wu Statutory Declaration states: “My aunt [the applicant] is the one doing most housework, and my dad [the sponsor] is the one looking after the garden and the veggie patches.” If the August Submissions are to be believed, then the Ling Wu Statutory Declaration has some concerns for the Tribunal.  The August Submissions state that the applicant assists the sponsor to take care of the vegetable garden and other tasks such as “lawn mowing, overall garden caring, landscaping, hedging pruning etc are all done by others.  The sponsor’s daughter-in-law [sic] would come to the property and do the law mowing on a regular basis.”  Here it is not clear from the August Submissions as to whether the reference should be to the sponsor’s daughter or the sponsor’s son-in-law who owns the property, save to say, that the Ling Wu Statutory Declaration gives the impression that the sponsor on his own looks after the garden.  It seems from the August Submissions that this not the case and from the physical condition of the sponsor which was clear to the Tribunal at the hearing.   Due to the sponsor’s mobility issues and frailty, completing physically demanding gardening tasks would be unlikely and the Tribunal accordingly gives this aspect of the Ling Wu Statutory Declaration limited weight.

2. The applicant gave oral evidence that she did the cooking, cleaning, sweeping the floor and grocery shopping as the sponsor is at a more advanced age, has mobility issues and the applicant is concerned he might fall.  The applicant also stated the sponsor attends to the gardening, plants vegetables, pulls out weeds, trims plants and flowers, take the bins out and brings the empty bins back. The Tribunal has previously mentioned the concerns it has about the credibility of this aspect of the applicant’s oral evidence.

3. The sponsor gave evidence that the cleaning of the common areas of the home as well as the management is done by the sponsor and the applicant, and the tenants at the property look after their own rooms.  The applicant does all the cooking for the sponsor, but the tenants do their own. The Tribunal accepts the sponsor’s evidence as credible.

4. In terms of the nature of the household, at the time of application the parties had no children together and did not have any children that they support.  There is statutory declaration evidence supporting that the parties were living together and some statutory declaration evidence that indicates that there was sharing of the responsibility for housework.  Due to the small amount of evidence before the Tribunal the Tribunal finds that there is only some evidence about the nature of the household.

5. At the time of decision, the Tribunal is satisfied that the parties have no children together and do not have any children that they support.  Because of the parties’ advanced years, the Tribunal attaches no adverse weight to this. Although the Tribunal has credibility issues as regards the applicant’s evidence about the parties’ living arrangements, it seems that there is enough corroborating evidence to support the position that the parties live in the same property.  There is also evidence of the parties sharing housework (though again there are credibility concerns about what the applicant stated the sponsor’s contributions were in terms of outdoor chores (e.g. gardening and the bins) and also the evidence given in the Ling Wu Statutory Declaration due to the sponsor’s frailty and mobility issues).  That being said, the Tribunal accepts that there is some evidence consistent with the age of both parties and their ability about some sharing of housework.   Due to the credibility issues with evidence given by the applicant and in the Ling Wu Statutory Declaration, the Tribunal has reduced the weighting of the nature of the household to some weight.

   Social aspects of the relationship

6. The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

7. There is some evidence of the parties representing themselves to other people as being married.   The Centrelink Letter lists the applicant as the sponsor’s partner and the applicant submitted an Ambulance Victoria screen shot which listed the applicant as the sponsor’s “partner”.  Interestingly, the sponsor was added on 17 July 2014, but the applicant was only added on 30 July 2019, despite the parties being married since 12 February 2014.  The Tribunal finds this strange.

8. Two translated certificates of honour issued from the Australia Xin Jin Shan Chinese Library dated 2016 were provided by the applicant.  One was awarded to the sponsor “and his spouse” and the other awarded to the applicant and “his [sic] spouse”, though the name of the spouse is not listed in either certificate.

9. There is some evidence since prior to the date of application (by way of the Centrelink Letter) that the parties have represented themselves to others as being married, and more evidence with additional documentation submitted at the time of decision.  At the time of application given the limited amount of documentation, the Tribunal gives this limited weight.  As at the time of decision there is more documentation to support the position that the parties hold themselves out as being married, the Tribunal gives this some weight.

10. The applicant submitted the following form 888 statutory declarations which set out the opinion of the parties’ friends and acquaintances about the nature of the relationship:

    a.Kwai Fong Chan dated 2 May 2022, has known the sponsor for 19 years as the sponsor is his father-in-law and has known the applicant for 16 years, he states: “I got introduced to the applicant’s partner [the sponsor] when they started dating and eventually got married at around 2014.  Sine [sic] then I have regular contact with the couple, help them with chores go on holidays and generally sicially [sic] interact as family members [sic].”  He states that he believes their “man/wife” relationship is genuine, that they “…live together under the same roof, go shopping together and devoted [sic] to each other.”

    b.The Ling Wu Statutory Declaration states that since the parties have been married they have been living together at one of her husband’s homes in Glen Waverley and she visits them weekly.  She sates: 

    “My dad [the sponsor] and my aunt [the applicant] have a very active social life.  They join local Chinese communities/church,and participate volunteer [sic] work/social gatherings a few time [sic] a week together.”

    c.The Huanyu Wu Statutory Declaration states that he has witnessed the parties’ relationship develop and “…witnessed their marriage registration in Victoria.” He sees them at family gatherings at his aunt and uncle’s house a few times a year.

    d.Kang Kiew Ng dated 27 July 2018 who had at that stage known both parties for 3 years through getting to know the parties when they came to attend LifeGate Church of Christ which Kang Kiew Ng attends in addition to bible study group which meets twice a month and church on Sundays.  Kang Kiew Ng normally picks the parties up for bible study home group gatherings and church activities and states that “[t]hey live in the same house”.  The Tribunal finds this an interesting choice of words considering that other than the one bedroom, the other rooms in the house are rented out tenants.  From the Kang Kiew Ng statutory declaration it is not clear whether they live together or only live in the same house.

    e.The Zhu Statutory Declaration. Ms Zhu states that the applicant is a dancing teacher at the Chinese Senior Education Society and that they have become good friends.  She has visited the applicant’s home often, sometimes the applicant visits her and they go on day trips together.  It is not clear whether the sponsor also attends these day trips or not.  Further, Ms Zhu has observed in the past years that the parties “…always held hands when they went out together.” 

11. The applicant also submitted the following written statements from:

    a.Mei-Ju Lee, Chinese Pastor from LifeGate Church of Christ Inc dated 2 June 2018 which states the parties attended the church since the second half of 2015. “As husband and wife, they attend the church activities including the Sunday Services, bible study home group and other community activities…They brought many friends with them to various church activities, sharing with them the goodness of God and the faith that they have in Jesus Christ.”

    b.Shaoying Xu, Director of Xin Jin Shan Chinese Library dated 3 June 2018 which states that the parties have been doing volunteer work at the library since 2014.  “As husband and wife, they help us organise various activities and are always keen to lend a helping hand to those in need.”

    c.Baoquan Zhao dated 31 May 2018 who as at that date had known the parties for 3 years and first met them at the Senior Club of Glen Waverley and almost every Thursday attend activities together. Baoquan Zhao states: “[t]hey look after each other.  Mrs. Wu [the applicant] enjoys cooking for her husband Mr. Wu [the sponsor].  Thursday’s they always bring home cooked lunch prepared by Mrs. Wu [the applicant].  When’s [sic] our group have day trips together, Mr. and Mrs. Wu [the parties] often hold hands and enjoy a walk together.”

    d.Xueying Zhu dated 31 June 2018 which at that time,  Xueying Zhu had known the parties from the Melbourne Chinese Senior Education Society for four years.  Xueying Zhu is good friends with the applicant and has visited her home often. The applicant teaches dancing at the Chinese Senior Education Society.  Xueying Zhu states that the applicant “enjoyed assisting” the sponsor edit his writing prior to it being published in the society newsletter.  Additionally, “Mr. Wu [the sponsor] helped Ms. Wang [the applicant] with daily grocery shopping and gardening, while Ms. Wang [the applicant] helped him pack up.  From hats, clothes, equipment to very tiny things like spare socks, etc, she prepared everything for him in details [sic].  She has been a very good carer!”

    This statutory declaration also reflects the Tribunal’s concerns about the nature of the parties’ relationship – here the emphasis on being a good carer is emphasised rather than being a good wife/spouse.

12. At the time of application and the time of decision, the Tribunal gives the opinion of friends and family some weight in that there has been generally consistent evidence that the parties are married, live under the same roof/in the same house, socialise together and hold hands. The Tribunal notes that there is no statutory declaration evidence from the applicant’s immediate family.  However, due to the number of statutory declarations and statements of friends and family members submitted and consistency of the information in those documents, the Tribunal gives this evidence weight.

13. In terms of the basis on which the parties plan and undertake joint social activities the applicant submitted the following information about joint holidays:

    a.a P&O Cruise upgrade notice dated 1 November 2016 listing the parties as well as another female and male passenger for a cruise starting and returning to Melbourne from 3 December 2016 to 9 December 2016.

    b.a passenger itinerary/receipt for the sponsor to fly on China Southern Airlines from Melbourne on 12 April 2018 to Guangzhou, China and returning on 21 May 2018 and a passenger Eticket receipt for the applicant to fly out on the same day but return on 22 June 2018.  The parties were not booked to sit next to each other on the way to China with the sponsor booked on seat 61K and the applicant booked on seat 56H.  The Tribunal finds this strange that the parties’ would not be sitting next to each other on an international flight.

    c.boarding passes for both parties for:

    i.Jetstar flights departing Melbourne on 27 August 2018 and arriving at the Gold Coast (seats 34A and 34B);

    ii.Tigerair flights departing the Gold Coast on 30 August 2018 and arriving in Melbourne (seats 24D and 24C);

    iii.Jetstar flights departing Melbourne on 15 January 2019 and arriving in Hobart (seats 27A and 27B);

    iv.Jetstar flights departing Hobart on 18 January 2019 and arriving in Melbourne (seats15F and 15E); and

    v.Jetstar flights departing Melbourne to Cairns on 1 September 2019 (seats 28E and 28F) and returning on 4 September 2019 (seats 23E and 23D).

14. The Tribunal accepts that the parties have undertaken a number of trips both internationally and domestically together, however, notes that people travel together for all kinds of reasons and this is not necessarily indicative of the parties’ being in a spousal relationship.  The accommodation arrangements during these trips which were not submitted would likely have provided a clearer indication of the nature of the parties’ relationship and accordingly the Tribunal only gives the travel evidence some weight.

15. The applicant also submitted tickets for herself and the sponsor to attend the Melbourne International Flower & Garden Show in 2020 and 2022.  Given the evidence about the sponsor’s gardening, the Tribunal accepts that the parties went together.  However, this of itself does not indicate a genuine and continuing spousal relationship.

16. Translated receipts for memberships were provided by the applicant of the:

    a.China Friendship Association dated 13 September 2018;

    b.Waverley Chinese Senior Citizens Club Inc for both parties dated 7 July 2019;

    c.Chinese Senior Cultural Associations Inc for both parties dated 21 January 2019;

    d.Monash Chinese Seniors Club for both parties dated 9 November 2020; and

    e.Chinese Senior Education & Skill Development Association Inc for both parties dated 12 December 2021.

17. The Tribunal accepts that the parties are both members of a number of different social and community groups and gives this some weight.

18. A bundle of photos was submitted by the applicant, which show the applicant and sponsor together at various different events, locations and social settings either on their own or with others.  Some of the photographs are dated but most are not.   For a relationship as long as the parties’ are claiming, there seems to be disproportionately few photographs.  Additionally, the photographs do not have descriptions and do not list the event or the individuals in the photographs or the parties’ relationship with those individuals and often it is not clear when they were taken.  For this reason, the Tribunal only affords them some weight.

19. In terms of the social aspects of the relationship, at the time of application there is little evidence that the parties represent themselves to other people as being married.  In terms of the opinion of the persons’ friends and acquaintances about the nature of the relationship there is evidence that the parties represent themselves as married and socialise together and hold hands. The statutory declarations and written statements indicate that the parties do undertake joint community activities.  Accordingly, the Tribunal gives this some weight in terms of a mutual commitment to a shared life together as a married couple.

20. The Tribunal accepts that that there is some evidence as to the social aspects of the parties’ relationship at the time of decision. There is further evidence of the parties representing themselves to others as being married, and the opinion of family and friends – though not a lot of the witness statements and statutory declarations are current.  There is evidence of the parties travelling together by way of tickets, memberships at social and community groups and supporting photographs.  Accordingly, the Tribunal gives the social aspects of the relationship weight.

    Nature of persons' commitment to each other

21. The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long-term one.

22. At the time of application, the parties had been married for two years, the Tribunal gives this some weight.  At the time of decision, the parties have been married for over eight years, the Tribunal gives this evidence weight.

23. In terms of the length of time that the parties have been living together, the applicant gave oral evidence that she and the sponsor were engaged in 2013 started to live together in China from 2013 and in Australia from 2014.  The applicant stated that she considered the parties to be permanently living together since 2014 but had to travel during that time.  After the hearing the applicant provided a statutory declaration as to her living arrangements dated 27 July 2022.  In this statutory declaration, the applicant stated that since the date of her marriage the applicant has lived together with the sponsor in Glen Waverley except for the following periods:

    a.27 March 2014 – 23 June 2014;

    b.20 September 2014 - 3 April 2015;

    c.18 July 2015 – 7 August 2015;

    d.4 November 2015 – 14 November 2015; and

    e.May 2019 – June 2019.

    The Tribunal accepts that parties travel independently, however the parties lived separately for approximately 6 months in 2014 and approximately 4 months in 2015.

24. According to the Submissions, “…after being officially married, the applicant left Australia because her visitor [visa] was expiring.  The applicant re-entered Australia in April 2015, August 2015 and November 2014 respectively for reunion with the sponsor.  The Partner (Temporary) (class UK) (subclass 820) and Partner (Residence) (class BS) (subclass 801) vias was lodged on 3 February 2016.”  The Tribunal accepts this explanation.

25. Consistently, the Ling Wu Statutory Declaration indicates that the parties have been living together since they were married.  This evidence appears to support the applicant’s oral evidence and accordingly, the Tribunal gives this evidence weight.

26. The applicant submitted the following pieces of correspondence addressed jointly to both parties: a number of Joint Account Statements with the first statement being addressed to both parties being from 30 January 2016 until 29 July 2016 (meaning it would have been received after 29 July 2016).  The last statement addressed to both parties was for the period from 5 December 2020 to 5 March 2021. The Tribunal finds it strange that no other correspondence has been addressed to both parties at the same address considering that the parties who have been married for over eight years.  The Tribunal would have expected to see things like joint invitations, potentially Christmas cards and the like.

27. The applicant also provided some correspondence addressed only to her on: 2 November 2017 (from the Australian Taxation Office), 17 April 2018 (letter from Australian Unity to the applicant), 15 November 2021 (from Hostplus, Bendigo Bank statement for the period of 17 August 2021 – 16 February 2022, 26 August 2021 (Dorevitch Pathology reports), 30 November 2021 (from the National Cervical Screening Program) and 28 February 2022 (Australian Clinical Labs General Pathology Request Form and Labels).  The Tribunal is surprised by the small amount of correspondence issued to the applicant give the period of time that the parties have been living together.  The applicant submitted a greater amount of the correspondence to the sponsor at the Glen Waverley address.

28. Based on the above, the Tribunal finds that there is some evidence that at the time of application the parties had been living together for approximately two years (since 2014) and at the time of decision, the parties are still living together (and have been for approximately eight years).  The Tribunal gives this some weight.

1. In terms of the degree of companionship and emotional support the parties draw from each other the applicant gave oral evidence that the parties sleep in the same bed and even though the parties are in their 70s and 80s they still have a sex life a few times every year.  The Tribunal gives this some weight.

2. The applicant gave evidence that she is paid to care for husband by her employer for 10-20 hours a month as for privacy reasons her husband would not want another worker to [assist with personal care].  However, she spends more time caring for others, that is, being paid to care for her husband is not her primary responsibility with her employer.  The Tribunal accepts that the sponsor’s preference may well be that the applicant [assists with these issues], but the Tribunal has concerns as to whether this evidence of the applicant’s care for the sponsor is also evidence of emotional support since she is paid to do so.  Accordingly, the Tribunal only gives this evidence some weight. 

3. The applicant also gave evidence that she has a circulation issues which means that she has cold hands and feet.  When the parties didn’t have an electric blanket the sponsor would hold her hands to warm them and when her feet are cold he would hold her feet near his chest in his arms to keep them warm.  Once they got the electric blanket he would pre-heat it prior to the parties going to bed.  The applicant stated that the parties are inseparable “like a person and the person’s shadow.”  She likes eating bananas and he always makes sure that there are bananas at home despite the price.  According to the applicant the sponsor buys them because she likes eating them.  The sponsor gave evidence that two weeks prior to the hearing that he had a fall, and applicant [assisted him in a specified matter].  The applicant gives him support, helps him and cares for him. The Tribunal gives the evidence regarding emotional support that the parties draw from each other weight.

4. At the time of application, the Tribunal gives some weight to the degree of companionship and emotional support the parties draw from each other.  The parties have known each other for many years, spent a lot of time together during the applicant’s sister (also the sponsor’s then wife’s) illness which the Tribunal accepts would have been emotionally difficult for them both, and then took a number of years from commencing their relationship, to getting married which tends to indicate that their relationship has grown emotionally over time. There were some photographs submitted of the parties engaging in activities together.  The Tribunal gives this evidence some weight.

5. At the time of decision there is more evidence of companionship in terms of travelling together and attending social and community events together and oral evidence presented by the parties at the hearing in terms of emotional support the parties obtain from each other.  The Tribunal gives this evidence weight.

6. The applicant gave evidence that if she could no longer stay in Australia that the parties’ relationship would continue as the parties are in a legal marital relationship and have built a strong emotional bond over the years.  The applicant stated that because the sponsor is in his eighties even if she was unable to stay in Australia, she would still choose to travel to Australia as it was not safe for him to travel on airplanes back and forward, and the applicant would continue this until the parties “finish the road we [they] travel on together.”  The Tribunal gives this evidence weight.

7. The sponsor’s evidence was if the applicant could not stay in Australia, he would be very sad because the applicant has done so many good things, she is a good partner, and the sponsor does not agree with her leaving.  He stated that he would not go back to China with her as he is an Australian resident and wants to stay in Australia as he enjoys the life here.  The sponsor wants the applicant to stay with him.  Given the sponsor’s advanced age and health situation, the Tribunal does not attach any negative weight to this evidence.

8. Oral evidence was given by the applicant that the parties are planning to go on trips again once the COVID situation improves and once the infection and death numbers are not so high.  The parties have set aside money for that purpose.  The applicant stated that there were a lot of places that they have not been to in Australia, and she gave the example of the 12 Apostles where she has not been, although the sponsor has and would be happy to go with her.  The Tribunal only places some weight on this due to the sponsor’s [age] that would appear to cause the parties difficultly with the sponsor travelling – given the sponsor’s age and evidence of [condition 1] this position is unlikely to improve.

9. In term of whether the parties see their relationship as long term, at the time of application there is limited evidence, other than that the parties had been married at that stage for two years. Given the parties are still married at the time of decision the Tribunal gives some weight to the whether the parties saw the relationship as long term.

10. At the time of decision in terms of whether the parties see their relationship as long term the parties are still married and living together (for over eight years).  The Tribunal accepts that if the applicant remains in Australia, then both parties see the relationship as long term, however, if the applicant returns to China, then the sponsor was clear that he would not be going with her.  The Tribunal accepts that this may be reasonable due to his advanced age and health.  The parties’ future travel plans given the sponsor’s health look unlikely.  Therefore, the Tribunal gives the evidence in relation to whether the parties’ see the relationship as long term some weight.

11. In terms of the nature of the person’s commitment to each other at the time of application the Tribunal finds that the parties had been married for almost two years and there was some evidence that they were living together for the same period of time.  Given the parties’ relationship history it seems that the parties’ have drawn emotional support from each other for a long period of time prior to their relationship commencing and given that at the time of application that they were married for two years, that they saw the relationship as long term. The Tribunal gives the nature of the person’s commitment to each other some weight.

12. At the time of decision, the Tribunal finds that the parties have been married and living together for over eight years.  There is more evidence of companionship in terms of travelling together both internationally and nationally and attending social and community events together.  Oral evidence at the hearing indicates that the parties obtain emotional support from each other with specific examples given.  There is some evidence of the relationship being long term in terms of future travel plans albeit unlikely given the sponsor’s age and current health.  On balance, the Tribunal gives the nature of the person’s commitment weight.

    Any other circumstances of the relationship

13. The Submissions also discuss what the applicant believes will be the likely consequences if the visa is not granted (including the provision of supporting documents).  As the Tribunal does not have the power to grant the applicant a visa nor deport the applicant, the Tribunal has not considered these matters in this decision.

    Time of application requirements

14. The main issue for determination is whether, at the time of application on 3 February 2016, the applicant and the sponsor were each other’s spouse for the purposes of the Act.

15. Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

    This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

16. Accordingly, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

17. At the time of application, the parties had been married and living together for almost two years and consistent with a mutual commitment to a shared life as a married couple are still married and living together.  There has since the time of application been evidence that the parties have held themselves out as being married and a number of statutory declarations from friends and family that they are married, live under the same roof, socialise together and hold hands and share housework.  The Tribunal finds this evidence is consistent with being in a genuine and continuing relationship and a mutual commitment to a shared life as married couple.

18. The Tribunal is satisfied, concerning all the evidence cumulatively, that the parties have demonstrated a commitment to each other and their relationship as contemplated in the Regulations.

19. For the reasons provided in relation to the reg 1.15A matters, the Tribunal is satisfied that at the time of application, the applicant and sponsor:

    a.were married to each other under a marriage that is valid for the purposes of the Act as required pursuant to s 5F(2)(a) of the Act;

    b.had a mutual commitment to a shared life as a married couple to the exclusion of all others as required pursuant to s 5F(2)(b) of the Act;

    c.had a relationship between them that is genuine and continuing pursuant to s 5F(2)(c) of the Act; and

    d.live together as required pursuant to s 5F(2)(d)(i).

100. Therefore, the Tribunal determines that the applicant and sponsor meet the definition of ‘spouse’ as set out in s 5F of the Act.

101. The ‘spouse’ requirement is not the only requirement of cl 820.211(2) which must be met. The Tribunal finds that cl 820.211(2)(a) is met as the applicant is the spouse of an Australian permanent resident and there is no information before the Tribunal indicating that the circumstances in cl 820.211(2B) apply, hence the Tribunal finds that cl 820.211(2)(a)(ii) is met.

102.   The Tribunal also finds that the applicant’s spouse is over 18 years old being born in 1937 and the applicant is sponsored by the spouse. Therefore, cl 820.211(2)(c)(i) is satisfied.

103. The Department’s decision record of 9 July 2018 indicates that on 14 November 2015 the applicant was the holder of a Visitor (subclass 600) visa and on 3 February 2016 the applicant lodged a Partner (Subclass 820/801) visa application. Accordingly, at the time of application the applicant held a ‘substantive visa’ as defined under s 5 of the Act, and therefore, the requirements in cl 820.211(2)(d) do not apply.

104. The Tribunal finds that at the time of application the requirements in cl 820.211(2) were satisfied.

Time of decision criteria

105. The Tribunal finds that the applicant continues to meet the requirements in cl 820.211(2) and accordingly, the applicant meets cl 820.221(1)(a) at the time of decision.

106.   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

107.   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) of Schedule 2 to the Regulations; and

·cl 820.221(1)(a) of Schedule 2 to the Regulations.

Brygyda Maiden
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).