Wong (Migration)

[2023] AATA 685

Wong (Migration) [2023] AATA 685 (13 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sing Wah Wong

REPRESENTATIVE:  Mr Anyun Zhou (MARN: 0101262)

CASE NUMBER:  1904161

HOME AFFAIRS REFERENCE(S):          BCC2017/1509169

MEMBER:T. Quinn

DATE:13 March 2023

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:

·Clause 820.211(2) of Schedule 2 to the Regulations

Statement made on 13 March 2023 at 1:50pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties validly married – mutual commitment to a shared life together – parties live together in a spousal relationship – a genuine and continuing relationship – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, r 1.15, Schedule 2, cl 820.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 26 April 2017, the applicant (‘the applicant’ or ‘Mr Wong’) applied for a Partner visa[1] (‘the visa’) based on his marriage to his sponsor, Ms Su Zhen Guan (‘the sponsor’ or ‘Ms Guan’).[2]

   [1]           Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

   [2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 820 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

2. On 6 February 2019, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that at the time of application the applicant was the spouse of the sponsor as defined by section 5F of the Act (‘the delegate’s decision’).[3]

   [3]           See clauses 801.221 or 820.211 of the Migration Regulations 1994 (‘the Regulations’).

3. On 22 February 2019, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]

   [4] Pursuant to sections 338(2) and 347 of the Act.

4. The applicant was represented in relation to the review.

5. The applicant and sponsor were listed to appear before the Tribunal on 16 March 2023 to give evidence and present arguments.  However, upon considering the material before me, I have determined the appropriate course is to remit the application.

6. I have proceeded to a decision having regard to all the information before me.  In reaching my decision, I have regarded:

   a.all material filed by or on behalf of the applicant and sponsor; and

   b.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.

   STATUTORY AND LEGAL FRAMEWORK

7. The issue in this case is whether the applicants are in a spouse relationship as defined by section 5F of the Act.

8. Clause 820.211(2) of the Regulations requires that at the time the visa application was made 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 visa applicant claims that he is the spouse of the sponsor, Ms Guan (‘the sponsor’), who was granted Australian citizenship on 25 June 20022002 as the child of her father when he was granted citizenship. Based on the information before me I am satisfied that the sponsor is an Australian permanent resident.[5]

   [5]See Australian citizenship certificate at pages 33-34 of the Department file and page 137 of the Department file.

9. ‘Spouse’ is defined in section 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.[6] In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[7] 

   [6] Section 5F(2)(aa)-(d).

   [7]           He v MIBP [2017] FCAFC 206.

10. The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.

11. Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[8]  In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims  made by the applicants and I have not done so.  A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[9]

    [8]           Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

    [9]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

12. If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[10]

    [10]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].

13. It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[11]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [11]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].

    Valid marriage

14. If Mr Wong and Ms Guan (‘the applicants’) are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The applicants have filed a copy of their Marriage Certificate with the Tribunal which indicates they were married in Australia on 18 March 2017.[12] On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a).

    [12]See Marriage Certificate in the Tribunal file, filed with the applicant’s application for review.

    Timeline

15. The sponsor first arrived in Australia many years ago and was Australian citizenship in June 2002 as the child of her father in relation to his grant of citizenship.

16. The applicant and the sponsor know each other through family, and they met in 2015.  The applicant came to visit the sponsor in Australia in November 2015, and she accompanied him and his parents to Perth to visit the applicant’s brother during that trip.  The sponsor and her younger brother visited the applicant in Hong Kong where he took care of them, taking time off work to spend time with them and take them to tourist attractions.  The applicant visited the sponsor and lived with her and her family in April 2016 at which time they planned their wedding and told their families.[13]

    [13]See Sponsor’s statement filed together with their application for review.

17. The applicant and the sponsor held a traditional wedding ceremony in China in January 2017 and then went on a honeymoon for three weeks through Italy, Switzerland and Taiwan.[14]

    [14]See Sponsor’s statement filed together with their application for review, the sponsor’s father’s statement dated February 2019, the applicant’s personal statement filed together with his application and page 144 of the Department file.

18. The applicant arrived in Australia on 1 February 2017 and has been living with the sponsor since that time.[15]

    [15]See applicant and sponsor’s statement filed together with their application for review and page 141 of the Department file.

19. The applicant and sponsor were married in Australia on 18 March 2017.

20. The applicants filed the application which is the subject of this review on 26 April 2017.

21. The applicant and sponsor purchased a house in the sponsor’s name in February 2018.

22. The applicant and sponsor have a son together: Zi Long Wong born 20 July 2019.[16]  The applicant and sponsor are both listed as parents and informants on the birth certificate. 

    [16]See birth certificate in the Tribunal file.

23. The Department requested the applicants provide further evidence on 26 September 2018 which was not meaningfully responded to.  On 19 December 2018, the Department sent further correspondence indicating that there had been no response to their correspondence.  The applicants have explained in submissions that they did not understand what was required of them and have filed considerably more material with the Tribunal as compared to what is on the Department file.

    Issues at first instance

24. The delegate’s decision notes that the Department requested further information on 26 September and 19 December 2018, and these were not sufficiently responded to as set out in the immediately preceding paragraph.  This means that many of the documents before me were not before the delegate at first instance.

25. The applicants have filed submissions about their relationship and considerable evidence in support of their relationship- some of which relates to the period between the commencement of their relationship and the delegate’s decision in 2019.  I find this evidence persuasive in support of the applicant’s submissions that their relationship has been genuine and continuing, despite not responding to the Department’s request for further information.

26. This creates a situation where the applicants have been disadvantaged at first instance due to their misunderstanding of what was required and where there is extensive material before me that was not before the delegate.

    Financial aspects of the Relationship

27. Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.

28. The applicant and sponsor have filed statements, bank statements, photos and other documents corroborating that they bought a property in the sponsor’s name in February 2018 with the applicant funding a significant portion of the purchase price, including the entire deposit.  They have filed associated corroborating evidence showing that they have together dealt with a flood that occurred at the property and many shared many moments as a family in this house.  They have filed corroborating evidence that indicates the mortgage costs are shared.  The couple continues to live in this property with their young son. 

29. The applicant has filed evidence of: the sponsor’s superannuation nominating the applicant as 100% beneficiary; the applicant’s superannuation nominating the sponsor as 100% beneficiary; one of the sponsor’s tax documents listing the applicant as spouse; Centrelink documents showing the couple and their son are recorded as a family; utility bills sometimes in both names and sometimes in the sponsor’s names with associated bank transfers indicating these expenses are shared by the applicant; documents corroborating the transfer of AUD150,000 from the applicant’s father to support the applicant and sponsor when they started their family; health insurance.

30. The applicant took on a second job when the couple decided to have a child together and the couple have explained that they have a tenant/housemate to help support their financial expenses.

31. The applicant has filed evidence of a joint account from July 2017 and which they have held and used together along with evidence of the sponsor’s bank account showing many transfers from the applicant to fund household and family expenses.

32. The evidence indicates considerable pooling of financial resources and the constructive joint purchase of real estate.  The applicant makes the point in submissions that he would not have transferred tens of thousands of dollars to the sponsor for a house purchase which he would not legally own if this was not a genuine relationship.  There is no evidence that they owe any legal obligations to each other or of joint liabilities; or any legal obligations owed to each other.

33. In the circumstances, I place weight in the applicants’ favour in relation to the financial aspects of the relationship.

    Nature of the Household

34. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

35. The applicant and sponsor live together with their three-year-old son, Zi Long Wong, who was born on 20 July 2019.[17]  The applicants have filed many photos showing the applicant is heavily involved in their son’s life.

    [17]See birth certificate in the Tribunal file.

36. The applicant and sponsor have filed statements indicating that the applicant cooks and prepares food for the sponsor and does the washing on the weekends while the sponsor cleans and tidies the house and does the dishes.  They have filed a signed statement from their housemate which supports this.

37. The applicants have not filed any formal genetic evidence confirming the applicant’s paternity, but they have filed many photos with him, including at one of the sponsor’s scan and at the birth of their baby, along with a letter from their doctor simply stating that the applicant is the father (but not genetic evidence to support this assertion).  In combination with the birth certificate, I am satisfied the applicant is the father of Zi Long Wong.

38. The applicants have had a child together and filed photos that suggest they are both involved as parents.  The applicant and the sponsor are listed as parents and informants on Zi Long Wong’s birth certificate.  They have also filed, on request, a photo from the birth.

39. The applicant’s have also filed a statement indicating that they want to have more children, have been paying for private health insurance since March 2022 after a traumatic birth experience for the sponsor with Zi Long  Wong.  They explain in this statement that because of the uncertainty around the applicant’s visa status, they did not want to have another child if the applicant could not stay in Australia to support the sponsor.  The applicant states that he does not want the sponsor to be stuck parenting two children and paying a large mortgage on her own without his support.  I find this submission very persuasive.

40. In the circumstances, I place considerable weight in favour of the applicants in relation to the household aspects of the relationship.

    Social Aspects of the Relationship

41. Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

42. The applicants have filed very many photos of the applicant and the sponsor undertaking shared activities, travel, at home together, out with others including many, many photos together with the sponsor’s family.  The applicant’s family visited earlier this year and they have filed photos together with them.  I am troubled by the applicant’s submission that he was best man at the sponsor’s brother’s wedding.  The photos show him in a very different, much more casual outfit as compared to the other groomsmen and I do not accept that he was best man at this event.  I am also troubled by the submission that they had a very large wedding ceremony in January 2017 in China as they have only filed three photos from this event with the Tribunal and I have reservations about the size of their wedding celebration in China.

43. The applicants have filed many, many statements from people who train with the sponsor, friends from work, both of their father’s, their housemate and other friends.  Some of these are titled ‘statutory declaration’ but they have not been witnessed.  There are no formal statutory declarations filed but I also note the applicant and sponsor appear to have undertaken the bulk of this process on their own without the support of their agent.

44. The applicants have filed pictures of the sponsor’s social media posts which include her husband and son and present as a very public representation of her family.

45. I place weight in the applicants’ favour in relation to the social aspects of the relationship.

    Nature of the applicant and the sponsor’s commitment to each other

46. The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.

47. The applicants have been in a relationship for over seven years, living together for over six years and married for nearly six years.  They have had a child together and are raising him together. 

48. The applicant and sponsor have filed statements that the sponsor has been heavily involved in health and fitness, becoming a personal trainer, and the applicant has actively supported her in this.  There are many photos and statements corroborating this.

49. The applicant has filed a statement indicating that they want to have more children, have been paying for private health insurance since March 2022 after the sponsor’s traumatic birth experience with Zi Long  Wong.  He explains in this statement that because of the uncertainty around his visa status, they did not want to have another child if the applicant could not stay in Australia to support the sponsor.  The applicant states that he does not want the sponsor to be stuck parenting two children and paying a large mortgage on her own without his support.  I find this submission very persuasive.

50. The evidence filed suggests the degree of companionship and support one would expect in a genuine spousal relationship. 

51. I place weight in the applicants’ favour in relation to their commitment to each other.

    Other Matters

1. Much of the evidence before me, including the birth certificate of Zi Long Wong and many photos, was not before the Department.  Natural justice letters sent to the applicants by the Department were sufficiently not responded to.

   Conclusions

2. I have carefully considered all of the evidence before me. I consider the evidence supports a finding that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis. I am satisfied that the applicant is in a spouse relationship with the sponsor and the applicant therefore satisfies clause 820.211(2).

   DECISION

3. The appropriate course is for this matter to be remitted for reconsideration by the Department.

4. 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: Clause 820.211(2) of Schedule 2 of the Regulations.

   T. Quinn
   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).