Yao (Migration)

[2022] AATA 2296

Yao (Migration) [2022] AATA 2296 (24 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Liangliang Yao

VISA APPLICANT:  Ms Wenke Yi

CASE NUMBER:  2003764

DIBP REFERENCE(S):  BCC2019/198619

MEMBER:Peter Emmerton

DATE:24 March 2022

PLACE OF DECISION:  Adelaide

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

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 24 March 2022 at 12:45pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine relationship – validly married in home country – sponsor previously married to applicant’s sister – family and community opposition – limited evidence of financial, household and social aspects while living in different countries for substantial periods – travel and money transfers – nature of commitment – credible and persuasive witnesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 309.211, 309.221

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 is an application for review of a decision made by a delegate of the Minister for Immigration on 2 January 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 25 January 2019 on the basis of her relationship with her 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the couple were in a genuine spousal relationship.

4. The review applicant appeared before the Tribunal, on 24 March 2022, to give evidence and present arguments. The Tribunal also received oral evidence, via telephone from Ms Wenki Yi the visa applicant. In addition, the review applicant’s father Mr Guogi Yao gave evidence in person at the hearing as did his mother Ms Yugui Hon.

5. The review was conducted with the assistance of a translator fluent in Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the couple is in a genuine spousal relationship as defined by section 5F of the Act.

9. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

10. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department

    Whether the parties are in a spouse or de facto relationship

11. 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 citizen.

12. ‘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 husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion 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?

13. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The delegate accepted a Marriage Certificate as evidence that the couple were legally married. The Certificate is dated 7 March 2016, issued by the People’s Republic of China, Shiyan Economic Development Zone. The Tribunal also accepts this evidence and has viewed the documents and written translation. 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).

    Are the other requirements for a spousal relationship met?

14. In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, 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 which is attached to this decision.

15. The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 25 January 2019 on the grounds of being in a spousal relationship with an Australian citizen, Mr Liangliang Yao.

16. The visa applicant is a female Chinese national by birth, who has declared no previous relationships or children. DOB [Date].

17. The sponsor is an Australian citizen by grant, who has declared 1 previous married relationship resulting in 1 child. He was divorced 26 November 2014. This was corroborated at the hearing, the divorce decree was also provided.

18. It is claimed that the review applicant and visa applicant met in China in 2009 when the sponsor was the boyfriend of the applicant’s sister, Yi Yingying.

19. The departmental travel records establish that the review applicant travelled to China multiple times to visit the visa applicant post marriage, (7 trips). The parties last met on 5 January 2020.

20. The Tribunal accepts that for the periods of time post marriage 7 March 2016, the couple cohabited, this was tested during the hearing with the couple and supported by the various Statutory Declarations, received by the Tribunal prior to the hearing. These were provided by the review applicant’s mother and father as well as written statements. In addition, the Tribunal received written statements from both the visa applicant’s classmate and roommate, her father and written statements from 2 clients of the review applicant.

21. According to departmental records the visa applicant has travelled to Australia on 1 occasion in 2012 for 1 year, as a minor with her parents. This was verified at the hearing.

22. The Tribunal has considered the documentary evidence provided to the Department and the Tribunal. The Tribunal, as previously stated, has had the benefit of taking considerably more evidence from the sponsor and his parents at the hearing, as well as oral evidence via telephone from the visa applicant. The Tribunal found those presenting evidence to be credible and persuasive witnesses. Answers were provided in what appeared to be an honest and candid fashion without any apparent obfuscation or collusion. The Tribunal has considered all aspects of the relationship.

23. The Tribunal has determined that there is a demonstrated clear mutual commitment to a shared life together. This is indicated through the fact the couple are married and they have declared their marriage to a government body in China. It is also indicated through the fact that despite being separated for 2 years, the Review Applicant and Primary Visa Applicant appear to have remained mutually committed to each other. They profess that the love for each other is as strong as ever and has survived the time they have been forced to spend apart. This was explored during the hearing and verified by the witnesses and Statutory Declarations outlined in paragraph 20 of this Decision.

24. The Tribunal notes that the review applicant divorced his first wife and married her sister. Whilst this is not common practice it is known to the Tribunal as occurring from time to time. The substantial time periods between the divorce and remarriage and the candid admission of an illicit physical relationship when coupled with the review applicant’s parents response to the situation lead the Tribunal to the conclusion that a genuine relationship exists.

25. Such circumstances could reasonably be expected to cause substantial upheaval within both families. Evidence given at the hearing and in written form demonstrates this was in fact the case. This schism within the family also meant that inaccurate information was given to the delegate when they made enquiries, as the father of the review applicant denied the reality of the relationship and the socially challenging circumstances. The Tribunal would not expect to see this reaction if this was a contrived circumstance created to achieve an immigration outcome for the review applicant’s first wife’s sister, as the Tribunal has observed occurring previously.

26. The Review Applicant and Primary Visa Applicant displayed a consistent understanding of each other’s lives and show a genuine mutual interest in one another. They appear to support one another in all aspects of their life, that is, financially, socially, and emotionally in spite of the limitations imposed by distance. The relationship is in the view of the Tribunal both genuine and continuing.

27. There is no evidence before the Tribunal that the visa applicant and the review applicant have any intention to live separately apart on a permanent basis. The current separation is imposed upon them by the confluence of the Covid 19 pandemic and the initial visa refusals by the department.

    Financial Aspects of the Relationship

28. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.

29. In relation to any joint ownership of real estate or other major assets, the Tribunal has determined that the couple do not jointly own any major assets or real estate. This is not in the opinion of the Tribunal unusual for a couple of modest means, currently housed in two different countries, planning to live together in Australia.

30. The Tribunal accepts that the sponsor had owned a house with his previous wife. This is not seen as an unusual situation. She pragmatically paid the associated mortgage for a short period whilst the sponsor was residing in China with his wife as he had no income and clearly payment defaults would have put the asset at risk. He is now the owner and he and his parents reside in the property

31. The Tribunal accepts the documented evidence, (Westpac Bank Statement), that the review Applicant has assisted the primary visa applicant’s expenses via his money transfers totalling AUD $1920 between 13 February 2020 and 17 April 2020. Verbal evidence was proffered by the sponsor and the visa applicant during the hearing of additional amounts totalling approximately AUD $15,000.

32. The Tribunal received no evidence that the couple have any joint liabilities.

33. The extent of any pooling of financial resources, especially in relation to major financial commitments. The Tribunal again notes, that money transfer receipts were presented demonstrating a substantial amount of money transferred from the sponsor to the visa applicant. It also appreciates that the statement made by the review applicant is correct when the claim is made that it is not possible to establish a joint bank account with a foreign national, even if she is his wife, as a direct result of Australia’s stringent “money laundering” legislation.

34. Whether one person in the relationship owes any legal obligation in respect of the other. The Tribunal accepts the joint registration of a trailer, a personal motor vehicle and the sponsor’s commercial vehicle used for his employment are all jointly registered with the South Australian Government. Registration Certificates were supplied to the Tribunal. The Tribunal has determined that aside from the usual legal obligations associated with a marriage, the couple have not provided any evidence to indicate any additional legal obligations.

35. The basis of any sharing of day-to-day household expenses. The Tribunal acknowledges that the couple have lived apart for a considerable period of time post marriage and will continue to do so until the review applicant is able to bring his wife to his home in Australia. Therefore, there is little verifiable evidence of day to day sharing of household expenses aside from the substantial financial contribution made by the sponsor to his wife, coupled with the statements made by both parties relating to the financial support. In addition, verbal evidence was given by the visa applicant and the review applicant that when the review applicant was in China post marriage, (7 trips verified), he regularly contributed substantially to the day to day living expenses of the household, paid rent on the accommodation and hotels.

36. The Tribunal places moderate weight on the evidence in support of the financial aspects of the relationship.

    Nature of the Household

37. In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

38. Any joint responsibility for the care of children. The Tribunal notes that the couple have not commenced a family at this stage. Neither have responsibility for young children. It was clear from questioning the witnesses and the couple individually, that future planning is focussed upon having children as a couple. The Tribunal notes the letter and associated images provided to it by the visa applicant’s physician dated 22 February 2022. The physician is a specialist in the local Hospital maternity and Childcare Centre.

39. The living arrangements of the visa applicant and the sponsor were discussed. The couple have principally been separated by geography post their marriage for substantial periods of time. The separation is not of their making as previously stated. Again, as previously stated, the Tribunal accepts that 6 periods of cohabitation occurred between the marriage and January 2020.

40. Any sharing of responsibility for housework. The Tribunal notes little opportunity has existed to share household responsibilities other than during they cohabited in China. Traditional roles appear to have occurred during periods of co-habitation which were outlined during the hearing and reinforced by the statements made by the sponsor’s parents in their Statutory Declarations and statements. The Tribunal accepts the photographs provided showing cooking and household tasks being shared as corroborative evidence.

41. The Tribunal places moderate weight on the cumulative evidence presented in relation to the nature of the household.

    Social Aspects

42. In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

43. The review applicant and primary visa applicant claimed that they present themselves to society as a married couple and as a couple in a committed relationship. The Tribunal has formed the view that this is reasonable to accept from the fact that the review applicant and primary applicant have provided photographic evidence of them in a range of different social settings in the presence of family and friends.

44. The delegate was appropriately concerned that a large portion of the pictorial evidence shows the couple alone. The Tribunal’s past experiences leads it to believe that this is unsurprising. The schism caused within the family and friendship circles as a direct result of infidelity becoming public knowledge and a man divorcing his first wife and marrying her sister is highly likely to run deep. This circumstance is clearly in opposition to the cultural morays in China. This disapproval is exacerbated by the until recent ‘1 Child Policy’. The demeaner exhibited by the review applicant’s parents and their heart felt testimony during the hearing added further weight to the claims of a legitimate spousal relationship.

45. The Tribunal accepts the claims made by the sponsor that relationships were damaged. In some cases, friendships were permanently severed because of the couple’s actions. In addition, it is noted that the close family members were, up until recently, vehemently opposed to the changed circumstances. It is not surprising that ‘happy family and friendship photographs’ are scant. It is accepted that the verbal evidence provided by the mother and father at the hearing that they are now accepting of the relationship is accurate. The relationship realignments have been made more difficult because of the imposed lengthy separation.   

46. They claim that in their community in China, as well as in the relevant community in Australia, the couple are known to be a married couple.  This is demonstrated in the Statutory Declarations and statements presented to the Tribunal prior to the hearing. In the Tribunal’s past experiences of this culture, if the community did not in fact view the couple as married, they would have been shunned for having an affair out of wedlock. This would be particularly poorly viewed by an in situ traditional rural Chinese community.

47. The review applicant’s witnesses testified that they were cognisant of the marriage of the review applicant and primary visa applicant. This clearly indicates that the review applicant’s and primary visa applicant’s marriage is recognised outside of their family and inside the extended family. This fact is also obvious from their marriage certificate, where witnesses attested to their marriage.

48. The Tribunal places substantial weight upon the cumulative evidence provided in support of the social aspects of their relationship in combination with the circumstances of the relationship participants.

    Nature of the Commitment

49. In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following.

50. The duration of the relationship. The Tribunal was presented with a range of testimony, both verbal and written, clearly showing that the relationship evolved over a period of time from 2013 although not acknowledged or publicly displayed because of a clash with normative social expectations associated with marriage. Major issues such as when the relationship commenced, the wedding date, the subsequent living arrangements over time and the understanding of the sponsor’s parents and their desire to see their son and daughter in-law reunited and have a happy life together, have all been detailed and the range of accounts cross-reference appropriately.

51. The length of time they have lived together. As previously stated, the couple have not lived together for lengthy periods of time, due to circumstances the Tribunal accepts are out of their control. It accepts that they lived together as man and wife on several occasions, for 2-3 months at a time, as substantially corroborated by the Statutory Declarants, airline records and the hearing testimony.  

1. The degree of companionship and emotional support that the persons draw from each other. The Tribunal was convinced by the testimony of the couple, which was supported by the various Statutory Declarations that the relationship is mutually emotionally nourishing. The demeanour of both the witness and the sponsor demonstrated to the Tribunal the emotionally genuine nature of the relationship and the couple’s desire to progress their lives together.

2. The Tribunal has been provided with a brief report provided by a registered Clinical Psychologist, dated 3 September 2020. In the report the psychologist states that her findings are based upon 2 sessions which were undertaken under the mental Health Care Plan organised by the sponsor’s General Practitioner. There is acknowledgement by the psychologist that Mr Yao claims mental health deterioration and anxiety resulting from his separation from his wife. Physiological symptoms are also manifesting. It is stated by the psychologist that she believes the physical separation caused by the visa failure is taking ……‘a psychological toll on the sponsor’s mental health and hopes the Immigration Department will consider his application and take his mental health needs into consideration.’  The Tribunal notes that this report was prepared 18 months ago, there is no recent follow-up nor detailed assessment using standard tests and tools. It places only modest weight on this submission.

3. The Tribunal has been furnished with a medical report dated 26 February 2022 which indicates the couples desire to conceive a baby is known by the visa applicant’s doctor and relevant issues were being explored. This was discussed with the couple during the hearing. The Tribunal is in no doubt that substantial emotional support is provided to the visa applicant and accepts that this is likely to continue into the future when they are able to reunite.

4. The Tribunal determines that the substantial evidence provided to demonstrate regular ongoing communication between the visa applicant and the sponsor further strengthens the body of evidence supporting the genuineness of this relationship. Evidence was presented to demonstrate to the Tribunal that a range of communication devices and methodologies are regularly employed.

5. The Tribunal notes written evidence in the form of a signed and witnessed Last Will and Testament, presented to it, which clearly shows that the visa applicant is the beneficiary of the sponsors Estate should he become deceased.

6. Written evidence was provided in the form of a Beneficiary Details Statement acknowledging that the Super For Life, Superannuation Fund had recorded the sponsor’s wife as the 100% beneficiary of his benefits if he becomes deceased.

7. Both the sponsor and the visa applicant were able to demonstrate substantial knowledge about each other, their daily activities, occupations and their future plans. The Tribunal notes that whilst the couple have a clear understanding and appreciation of each other’s perspective on important issues they didn’t always have an identical view. The couple expressed mutually compatible knowledge regarding each other’s family circumstances and extended family structures and relationships.

8. The Tribunal notes that the review applicant stated that they had initially intended to move his wife to New Zealand on a Student Visa if she did not come to Australia. A second and third option under consideration was relocation to Singapore or Malaysia. This would allow easier visiting arrangements. Covid -19 border restrictions made such options impractical as well as socially undesirable as it would entail the separation of the sponsor from his parents. This was reinforced by the testimony of the review applicant, the visa applicant and his parents at the hearing.

9. The Tribunal places substantial weight upon the cumulative evidence provided in support of the couple’s commitment to each other.

10. 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.

11. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

12. 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 309 visa.

    DECISION

13. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309.211 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Peter Emmerton
    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).