Xu (Migration)

[2018] AATA 2182

Xu (Migration) [2018] AATA 2182 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yongji XU

VISA APPLICANTS:  Ms Peichang Lu
Miss Xiaohua Li

CASE NUMBER:  1621691

DIBP REFERENCE(S):  BCC2016/1529402

MEMBER:Russell Matheson

DATE:16 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and

·cl.309.221 and cl.309.222 of Schedule 2 to the Regulations; and

The secondary applicant meets

·cl.309.311 of Schedule 2 to the Regulations.

Statement made on 16 May 2018 at 11:58am

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Whether a genuine spousal relationship exists – Joint finances – Joint household responsibilities – Relationship represented to others – Evidence of ongoing commitment – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr n1.05A, 1.15A, Schedule 2, cls 309.211, 309.212, 309.213, 309.221, 309.222, 309.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 December 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant is a 46 year old female from Foshan, Guangdong Province, China. She applied for the visa on 22 April 2016 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.309.211.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the delegate was not satisfied the applicant is the spouse of the sponsor. The sponsor seeks review of the delegate’s decision.

4. The review applicant appeared before the Tribunal on 7 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and Mrs Huand Lizhi the applicant’s cousin.

5. The review applicant was represented in relation to the review by his registered migration agent via telephone in China.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act

8. The Tribunal has before it the Departments of Immigration (the Department) file relating to the applicant; its own file; and a copy of the Department’s decision provided by the sponsor (review applicant) to the Tribunal.

9. The evidence the parties and witnesses provided at the Tribunal hearing is recorded throughout this decision record.

   Whether the parties are in a spouse or de facto relationship

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

11. ‘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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided as evidence a copy of the marriage certificate for the couple dated 3 June 2015 registered in the state of New South Wales in accordance with the Births Deaths and Marriages Registration Act 1995. There is no evidence before the Tribunal to indicate that the marriage is not valid. On the evidence, 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).

13. After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

14. The Tribunal had the benefit of the applicants and the sponsor’s oral evidence. The Tribunal gave all the evidence provided by the parties’ and a witness at the Tribunal hearing and the information contained in the Departmental and Tribunal files due regard. The Tribunal considered evidence given by the sponsor, the applicant and witness to be detailed, consistent and plausible.

15. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor in the course of the hearing and the Tribunal is satisfied that the explanations offered are plausible.

    Are the other requirements for a spousal relationship met?

    Financial aspects

16. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses and any combined future financial commitments or plans.

17. The parties stated that they have a joint account that is utilised for their day to day living expenses and as a savings account. The sponsor said that he manages the couple’s finances and is responsible for supporting his family financially because that is the Chinese custom. The applicant said that the sponsor has supported her financially paying all her expenses when she visits him in Australia. The parties told the Tribunal that they were financially independent during times of separation when the applicant was employed in China. The sponsor stated that he supports the applicant financially and sends the applicant money in China because she no longer works. The sponsor presented two money transfer receipts showing that he had sent the applicant $2,000 via money transfers in 2017. The sponsor said that he has purchased a property off the plans for the parties to live in if a visa is granted. The sponsor said that he had paid a deposit of $54,500 to settle on the property soon. He further stated that he paid $545,000 for the property and has a mortgage. The applicant said that she will contribute to the sponsor’s mortgage and has $180,000 in superannuation. The applicant informed the Tribunal he currently earns $1,100 per week working as a chef in a Chinese restaurant and has $70,000 dollars in savings.

18. The parties had a sound knowledge of each other’s lifestyle, employment, rental payments and current living arrangements. The parties stated that the sponsor pays the day-to-day living expenses when the applicant visits the sponsor in Australia.

19. There is no evidence before the Tribunal that the parties have any joint liabilities or major assets such as real estate together. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other.

20. The Tribunal accepts there is a degree of difficulty of establishing and sharing financial resources when the sponsor and the applicant live in separate countries. The Tribunal accepts that the parties are prepared to share their financial resources. The Tribunal places some weight on this aspect of the relationship.

    Nature of the household  

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

22. The applicant has taken the opportunity to visit the sponsor in Australia and has spent approximately nine out of the last 12 months living with the sponsor in Australia. The sponsor explained that he had not returned to visit the applicant in China because of visa restrictions and that he was in partnership with another person in a restaurant and could not find time to get away from the business. The applicant stated that when she visits the sponsor in Australia she helps out at the sponsor’s restaurant. The Tribunal accepts that the applicant lives with the sponsor when she visits him in Australia. The parties provided broadly consistent and detailed oral evidence of their activities and living arrangements when together in Australia. The parties stated that they share the housework together and the applicant cooks. The sponsor had a sound knowledge of the applicant’s daughter’s education and career path.

23. The Tribunal is satisfied that they live together and have established a joint household together when the applicant visits the sponsor in Australia. The Tribunal accepts that the sponsor has been involved with the care and support of the applicant’s daughter by providing limited financial support for her education and daily living expenses.

24. The Tribunal has considered the nature of the household. The Tribunal accepts there is a degree of difficulty in establishing a joint household when the parties live in separate countries. The Tribunal is satisfied the applicant and sponsor live together and share the household responsibilities when she visits him in Australia.

    Social aspects

25. The Tribunal has considered the social aspects of the relationship. There are several statements from third parties that were provided as additional information and evidence before the Tribunal. The Tribunal also received oral evidence from five witnesses attesting to the nature of the parties’ relationship.

26. The sponsor and the applicant said that they have a small circle of friends that they associate with from the sponsor’s workplace. The parties stated that they have travelled together to places such as the Blue Mountains, Tasmania and the Great Barrier Reef with friends. The parties stated that their relationship is widely acknowledged and accepted by their friends and relatives. Further stating that their respective children accepted and supported their relationship. The parties provided a considerable amount of additional photographs of their social activities together with family and friends in Australia. The parties also provided statements from a number of third parties attesting to their relationship.

27. The Tribunal found the witness at the hearing had a sound knowledge and understanding of the inner nature of the parties’ relationship. The Tribunal found the witness to be genuine and believable when attesting to the parties’ relationship.

28. Overall, the Tribunal is satisfied that the parties represent themselves to family, friends and other people as being in a marital relationship and that they plan and undertake social activities together and as a family unit.

    Commitment

29. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length and time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

30. The parties claimed to have been introduced at a dinner party in Guangzhou, China in December 2012 when the sponsor was running his own restaurant. The parties stated that they became friends and when the sponsor’s business collapsed in July 2013 the sponsor returned to Australia and they maintained contact throughout 2014. The sponsor told the Tribunal that he proposed to the applicant on his birthday on 3 May 2015. The sponsor requested that the applicant come to Australia so that they could be married and they married on 3 June 2015. To date, the relationship has lasted for a period exceeding 4 years. The Tribunal is satisfied the parties are legally married.

31. The Tribunal accepts that the parties have a commitment to each other and to the care and support of the applicant’s child. The parties presented significant documentary evidence of continued daily contact during periods of separation and a sound knowledge of each other’s, family, living arrangements, health, and personal history.

32. The applicant said that she would seek employment immediately in Australia with the purpose of supporting the sponsor with his mortgage payments and her daughters’ further education. The parties told the Tribunal that they are investigating the possibility of opening their own restaurant together.  

33. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence with regard to their commitment to each other plausible, persuasive and genuine.

34. Having regard to the entirety of the circumstances the Tribunal is satisfied the visa applicant and the sponsor, have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal finds they do not live separately and apart on a permanent basis.

35. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

36. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. Therefore the applicant meets cl.309.211(2) and cl.309.221.

37. There is no evidence before the Tribunal that the spouse of the applicant is prohibited from being the sponsor of the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision was an Australian citizen who had turned 18. Therefore the applicant meets cl.309.212, cl.309.213 and cl.309.222 of Schedule 2 of the Regulations.

38. The secondary applicant is a dependent child (21 years) living at home with the applicant. She is a full-time student who is wholly dependent upon the applicant for financial support and their basic needs for food, clothing and shelter. The secondary applicant was wholly reliant upon the applicant for a substantial period immediately before the time of application. The secondary applicant is wholly reliant on the applicant, which is greater than any reliance on any other person or source of support.  The secondary applicant is a ‘member of the family unit’ as defined under r.1.12. The Tribunal finds the secondary applicant is  ‘dependant’ and satisfies r.1.05A.

39. The Tribunal is satisfied that the secondary visa applicant is a member of the family unit of, and made a combined application with, the primary applicant who satisfies the primary criteria in subdivision 309.21. Therefore, the secondary applicant meets the requirements of cl.309.311 of Schedule 2 to the Regulations.

40. The Tribunal has not made a finding on cl.309.321(a) because, at this time, the primary applicant is not the holder of a Subclass 309 visa.

41. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship.

42. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

43. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and

    ·cl.309.221 and cl.309.222 of Schedule 2 to the Regulations; and

    The secondary applicant meets;

    ·cl.309.311 of Schedule 2 to the Regulations.

    Russell Matheson

    
    

    Member

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

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

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

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

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

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

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

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

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

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

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

    (ii)     any joint liabilities; and

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

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

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

    (b)the nature of the household, including:

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

    (ii)     the living arrangements of the persons; and

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

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

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

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

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

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

    (i)     the duration of the relationship; and

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

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

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

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