YAO (Migration)

[2021] AATA 2556

YAO (Migration) [2021] AATA 2556 (2 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiu Wen YAO

CASE NUMBER:  1803063

HOME AFFAIRS REFERENCE(S): BCC2016/1724338 BCC2018/713954

MEMBER:Linda Holub

DATE:2 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2)(a) of Schedule 2 to the Regulations

cl 820.221 of Schedule 2 to the Regulations.

Statement made on 2 June 2021 at 11:02 am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – nature of the commitment – financial aspects – nature of the household – social aspects – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211; 820.221

CASES
He v MIBP [2017] FCAFC 206

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 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. The applicant applied for the visa on 12 May 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. At the time of application, the applicant’s son was included as a secondary applicant. He was withdrawn from the application in April 2021.

4. 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 considered that the information and evidence put forward was not sufficient to demonstrate that the applicant is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.

5. The applicant appeared before the Tribunal on 17 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

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

BACKGROUND

1. The sponsor who was born in 1960 is an Australian citizen by grant. He came to Australia in April 1990 on a humanitarian visa and became an Australian citizen in January 2003.

2. The sponsor has declared one previous relationship. According to this application, he was married to his first wife in October 1987 and sponsored her for a partner visa which was granted in April 1999. They divorced in September 2013. The sponsor has two children from his first relationship.

10.  The visa applicant is originally from China but currently holds a Hong Kong (Special Administrative Region) passport. She was born in 1971. Her parents, brothers and sisters live in China. She married her first husband in 1993 and their son was born in 1995. She declared that her first husband passed away in either 1998 or 1999 due to injuries from a car accident. She married her second husband in October 2000 and in 2005 moved to Hong Kong after being granted permanent residency. The applicant divorced her second husband in July 2007.  She married her third husband in Hong Kong in September 2007 and divorced in March 2013. 

11.  The sponsor is her fourth husband whom she married in April 2016.

12.  The applicant has one child with her first husband. Her son was initially listed as a dependent child on the partner visa application. The Tribunal notes that he withdrew his review in April 2021 and at hearing the Tribunal was told that he returned to China in 2020.

13.  The applicant first arrived in Australia as a holder of a Visitor (subclass 601) visa in November 2013. This visa ceased in February 2014 and she was on a bridging visa before being granted a Student (subclass 572) visa while onshore in May 2014. This Student visa was due to cease in May 2016. She lodged a Partner (subclass 820/801) visa application in May 2016 and was subsequently granted a Bridging (subclass 010) visa. The applicant remains lawfully in Australia as a holder of a Bridging (subclass 010) visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.

Whether the parties are in a spouse or de facto relationship

15.  Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen. 

1. ‘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?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties provided a copy of their marriage certificate showing they registered their marriage on 30 April 2016. 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).

Evidence provided by the parties

18.  The applicant provided the Department with:

• Relationship statements from the applicant and sponsor

• Ceremonial Wedding Certificate

• ID documents for the applicant, sponsor and dependent child who was originally listed on the visa application but was later withdrawn.

• Police clearance certificates

• Form 888 relationship statements from applicant’s niece and sponsor’s friend

• Letter from applicant’s brother and sister-in-law in support of the marriage

• Health insurance records for the applicant, sponsor and dependent child

• Joint residential tenancy agreement and handwritten bond receipts

• Joint bank statement for periods 13 May 2016 to 15 May 2017

• Electricity statements for periods 1 July 2016 to 14 August 2016 and 15 August to 14 November 2016

• Photographs from their first wedding anniversary.

19.  The Tribunal was provided with:

• A copy of the parties’ marriage certificate

• Photographs of the couple at their wedding, with family and friends and on holidays 

• Joint bank statements from April 2016 to December 2020

• Evidence of the couple’s multiple changes of address, residential tenancy agreements and utility bills

• Visa applicant and sponsor’s NSW driver’s licence

• Child support statements regarding the sponsor’s second child.

Are the other requirements for a spouse relationship met?

20.  The applicant and sponsor both gave evidence at the hearing. The Tribunal questioned them about their backgrounds, the inception and development of the current relationship, and financial, social and household aspects of the relationship and the nature of their commitment to each other. Their responses were substantially consistent, with a couple of exceptions that are discussed in more detail below.

Nature of persons' commitment to each other

21.  In a Statutory Declaration dated 21 February 2017 provided by the sponsor, he declared:

“I met my current wife Yao Xiu Wen at the smoking area of Star City on 31 January 2016. It was a Sunday evening. We did not talk until I realised she came from same area as me after she answered a phone call from her friend.

Then we started chatting and we exchanged our phone numbers after we left smoking area.

There was no particular reason why I approached Xiu Wen, but she was a nice person to me when we started talking.

We maintained some regular contact from that day, however it did not become frequent until late March when I learned that Xiu Wen was about to go back to Hong Kong.

It was at that moment that I felt that I wished to have this lady in my life I hoped she can stay.

Xiu Wen told me that her son was about to return to school soon and she saw her son changed a lot since came to Australia. She felt he was quite settled at this point so that she could return to Hong Kong.

It was at that moment that I decided to commit myself to this relationship I knew it was a quick decision, but I knew it was the right decision.

Xiu Wen is a simple and easy going person and I feel very relaxed and comfortable when I stay with her. This is what I had been pursuing in the last several years since I official apart from Lin Feng Qing.

It was so surprising to me that Xinghong supported our relationship straightaway and we are just like brothers. I knew Xinghong means everything to Xiu Wen and nis feeling about me critical in my relationship with Xiu Wen. I also understand that Xinghong had made Xiu Wen so strong in those years after her first husband passed away due to a car accident. We registered our marriage on 30 April 2016”.

22.  At the hearing, the parties provided consistent evidence regarding their initial meeting, who they were with at the time and their attendance at the casino and how the relationship developed: although they provided inconsistent evidence regarding the timing of their second meeting.

23.  When asked about the haste in which they married and whether it was related to the cessation of her Student visa, the visa applicant responded that she had planned to return to Hong Kong before she met the sponsor. She stated that after they established their relationship, the sponsor wanted her to stay with him. The sponsor stated that because of difficult financial position following the loss of his business, he would not be able to visit the visa applicant if she returned to Hong Kong when her student visa ceased.

24.  The visa applicant had difficulty articulating the emotional support and companionship the parties provide to each other, except in very generic terms. The Tribunal further explained the information it was seeking. She responded that she and the sponsor support and care for each other. She stated that she feels the most important aspect of their relationship is caring for each other. She stated that she feels she needs him, and he needs her. The Tribunal asked the applicant to elaborate. She stated that it warms her heart when she gets off work and sees a hot meal prepared. She stated that the sponsor is warm, and she hasn’t experienced this feeling previously.

25.  The sponsor stated that the applicant gives him a sense of security and he feels that she can protect him. In terms of the emotional support he provides her, the sponsor referred to the importance of companionship as people get older and that family life is important to him. He stated that if her son is able to make money and return to Australia they can live together as a family.

26.  The Tribunal tried to further explore the nature of the parties’ relationship by asking about conflict that arises and how they address it. The visa applicant stated that there are no issues that cause tension between them. The sponsor responded that he does not like to share this sort of discussion. He stated that the applicant is hot tempered. He stated that she is not punctual and referred to her speaking loudly.

27.  In relation to their plans for the future, the parties both referred to visiting China once it was possible to travel after the Covid-19 pandemic is over.

28.  The Tribunal is satisfied that the parties draw some companionship and emotional support from each other and that they see the relationship as long-term.

Financial aspects of the relationship

29.  The applicant provided the Department with a copy of a bank statements for the period 13 May 2016 to 15 May 2017. The Tribunal was provided with a copy of the parties’ statement of their Commonwealth Bank Smart Access account for the period of 22 April 2016 to 30 Dec 2018 which covers much of the same period as those provided to the Department. The bank statements show cash deposits, transfers to another bank accounts shopping for groceries, fuel, Medibank health insurance payments and payments to the ATO and other transactions.

30.  The applicant stated that she works in construction in different localities. She stated that she takes different jobs and has been doing this for more than six years. She explained that her sponsor does not work because his physical health is not good. He has a range of health conditions including high blood pressure, high cholesterol, diabetes, kidney stones and a frozen shoulder. She stated he has not worked since she met him but when asked how long he has not worked, she stated that she had never asked him.

31.  The applicant stated that she works full-time and that sometimes she gets paid in cash sometimes by bank transfer. She stated that if she gets paid by bank transfer it goes into her personal account. She stated that in the past she would transfer to the joint account but now she gives cash to her husband. She stated they both use the joint account to buy groceries and a few years ago to pay the rent, which they now pay in cash. When asked why her wages are not paid into the joint account, she responded that her account is her account and the joint account is a joint account. She talked about needing an ABN account for her work. The applicant stated that some of the money she puts into the joint account and some she keeps for the sponsor’s personal use.

32.  The applicant stated that the joint account is now mainly used for groceries. She stated that the sponsor has a card for the account, but she thinks he has lost that card and has not replaced it. She stated that she pays all the bills.

33.  The Tribunal confirmed with the applicant that the sponsor does not make a financial contribution to the relationship. She stated that if he needs anything, she provides it.

34.  The sponsor stated that he does work. He stated his hands hurt, he has a frozen shoulder, gets breathless and has diabetes. He stated that he stopped working in 2013. after he sold his busines. He stated that he did not discuss the problems with his business and subsequent unemployment with the applicant because he does not want her to despise him.

35.  The sponsor stated that the applicant works full-time. He stated that she sometimes gets paid in cash and sometimes her wages are deposited directly into her bank account. He stated that part of her wages then go into the joint account. The Tribunal asked him how it is a joint account if he does not put money into the account. He responded that they are a family and he does the cooking. He stated that he used to have a card for the account but he lost it about two or three years ago. The Tribunal put it to him that it does not appear in actuality to be a joint account. He referred to rent previously being paid from joint account.

36.  The sponsor stated that the applicant gives him $200 for groceries. For things like clothes and shoes his mother sends them to him from China because they are relatively cheaper there.

37.  The Tribunal put potentially adverse information to the applicant in regard to the purchase of the sponsor’s personal items in the terms required by s.359AA. The parties provided conflicting evidence on this question. In response to the adverse information, the applicant stated that the sponsor’s mother sends him things from China but if he sees something in a shopping mall that he likes, she will buy it for him.

38.  The parties do not own any assets, nor do they have any joint liabilities. As the applicant is the only one that works she pays for all of their expenses. The Tribunal was told and is prepared to accept that the sponsor contributes to the household in other ways.

39.  The Tribunal is prepared to accept the financial aspects of the parties suggests the existence of a spousal relationship and is reflective of arrangements where only one person in the relationship is employed.

Nature of the household

40.  The parties provided consistent evidence regarding the various places they had lived and the reasons they had moved fairly regularly. In relation to their current accommodation the Tribunal heard consistent evidence that the parties live in a two-bedroom house with a family of four. They utilise one of the bedrooms and the family uses the other bedroom. The Tribunal was told that as the visa applicant works outside the home, the sponsor does the household chores including the cooking and shopping.

41.  The visa applicant gave evidence that she gets up at 6.00 am and leaves home for work about 6.30 am. She travels to work by car. The sponsor first stated that the visa applicant leaves for work at 6.00 am and then amended that to say that she gets up at 6.00 am and leaves for work a short while later.

42.  The Tribunal accepts the evidence as to the nature of the parties’ household is consistent with the relationship claimed.

Social aspects of the relationship

43.  The applicant provided the Department with a number of statements of support including:

a.An undated statement from the applicant’s brother and sister-n-law provided to the Department, refers to the whole family being very happy to be informed of your marriage and states that neither she or their our parents are so able to attend the wedding and wishes the parties are long life together. This statement was not accompanied by any identification documents and therefore the Tribunal gave it no weight.

b.A Form 888 - Statutory Declaration from the applicant’s niece dated 5 May 2016. Yun Wu niece of applicant PDF. She explains that she is a distant relative and first met the applicant when she came to Australia in November 2013. They both live in the Hurstville area so maintain contact with them over the phone. She attests to the genuineness of the relationship between the parties. It states that the applicant enjoys her time with the sponsor and that she is planning her future with him because she feels he is mature and caring. In addition, she states that the applicant values the relationship the sponsor has with the applicant’s son.

c.The Tribunal was provided with a further Form 888 - Statutory Declaration from the applicant’s niece Yun Wu dated 15 May 2021. She states that she sees the parties every month when they come to her hair salon to have their hair cut and that she has visited them at their home. In addition to outlining the background of how the parties met, she states that the parties support each other. She states that the sponsor was supportive of the applicant when her mother passed away and her son left Australia. She declares that the sponsor does most of the housework because the visa applicant is busy working.

d.A Form 888 - Statutory Declaration from a friend of the applicant’s Xiaoyan Wang dated 5 May 2016 was provided to the Department and a further declaration dated 15 May 2021 was provided to the Tribunal. The declarations refer to the meeting of the parties in the smoking room of the casino at the end of January 2016. She attests to the genuineness of the relationship because the sponsor and the visa applicant’s son get along very well since they met, and she believes this provides the visa applicant with some confidence about the relationship. In addition, she states that the parties always enjoy their time together. It states that the sponsor is a caring person in general and is often nice and gentle with the applicant’s friends too. In the 2021 Statutory Declaration she refers to the parties living with her and her family and states that the sponsor is mainly responsible for the housework including the cooking and doing the laundry. She states that he was supportive of the applicant when her son left Australia.

e.The Tribunal was also provided with a Statutory Declaration from a friend of the applicant – Xiuying Lin. It is dated 16 May 2021. It also refers to the location and timing of when the parties claimed to have met and that the sponsor comforted the applicant following her son’s departure from Australia

44.  The applicant provided the Department with undated and unannotated photographs showing a cake, showing the parties cutting the cake together, showing the parties with another person (possibly the applicant’s son) and at a table with other people.

45.  The Tribunal was provided with further photographs taken over a number of years showing the parties in various locations and with various people.

46.  In relation to the social activities the parties undertake together the visa applicant stated at the hearing they have attended the engagement of wedding celebrations of their friends’ children and they go out to friend’s places. She stated they walk in their local park usually on Saturday nights but sometimes if they are too full, they go on other times. She stated that the walk takes them more than one hour. She stated that every Saturday  night they go out for a meal together. Their favourite restaurant is Xiao Chu Piao Xiang near Regents Park Station. She stated they occasionally socialise with the family they live with.

47.  The applicant’s sponsor stated they rarely socialise because his investment was not successful. He stated they get together for hotpot with mutual friends. He stated they for walks in a park that’s really close to their home usually on weekends. He stated their favourite restaurant is at Regents Park. He stated they used to have hot pot with the people they live with.

48.  The Tribunal is prepared to accept that the evidence of the social aspects of the relationship is indicative of a spousal relationship.

Post hearing submissions

49.  On 24 May 2021, the Tribunal was provided with post-hearing submissions from the applicant which included Statutory Declarations from the parties and bank statements of the visa applicants Commonwealth and St George Bank accounts for the period from 1 July 2020 to May 2021.

50.  In relation to the financial aspect of their relationship, the submission explains when the parties opened a joint bank account and referred to the bank statements provided to the Tribunal. In relation to the claims made by the sponsor at the hearing that he lost his bank card about two or three years ago, the parties advised that they did have two cards linked to their joint account before the sponsor lost his card. The Tribunal was asked to consider the transactions listed on their joint bank statements, which shows that some transactions were conducted under cards numbered xx5959 and xx3565 from 2016 to May 2019. In relation to the nature of the household the submission states:

51.  In relation to the nature of the parties’ household, the submission states they advised that they have been renting and lived at the following addresses:

a.Keats Avenue, Riverwood, NSW 2210: They moved into there on 15th July 2016. A lease agreement and rental receipts with both of their names, an envelope and utility bills addressed to the applicant, a child support payment slip addressed to the sponsor as well as his income tax account and his notice of assessment were provided to the Tribunal as evidence that they were living at this address.

b.Bristol Road, Hurstville, NSW 2220: They moved into there on 24th March 2018. A lease agreement, tax invoice and tenant tax invoice statements addressed to both the applicant and the sponsor were provided to the Tribunal..ADSL2+ Home Bundle bills confirm details, prescription and utility bills addressed to the applicant at this address were also provided to the Tribunal.

c.Kirkham Road, Auburn, NSW 2144: They moved into there on 20 June 2019. A lease agreement with both names of the applicant and the sponsor utility bills addressed to the applicant, her ANZ bank statement, a letter sent to the sponsor by Lynda Voltz MP, the sponsor’s child support account statements and a letter sent to him from Department of Health were provided to the Tribunal as evidence that they were living at this address.

d.Northcote Street, Auburn, NSW 2144: They moved into this address on April 2020. A lease agreement with both of their names and their driver licenses were provided as the evidence that they have been living at this address.

52.  The Statutory Declaration of the visa applicant further addressed the issue regarding how the sponsor buys his own personal items. She referred to the sponsor’s evidence at hearing that his mother sends him clothing items. She stated that he also occasionally bought some items at shopping mall and that she gave him the money to do so and there is no conflicting information in their responses.

53.  In relation to the lost card for the parties’ joint bank account, the applicant declared that as she has been the sole bread earner for family, she puts her income into the joint account and she also gives her husband money for their daily expenses. She stated that she sometimes goes shopping for groceries with her husband and they use the joint account to pay for groceries when we go shopping together. She stated there is no conflicting information in their responses because the joint account is used for payment of groceries when they are shopping together, and her husband also buys groceries with the cash when he shops without her.

54.  The sponsor’s declaration provided essentially similar information.

Overall assessment

55.  The Tribunal had some concern in relation to the fact the parties’ married within months of meeting and not long before the visa applicant’s substantive visa was due to cease and also because the sponsor makes no financial contribution to the relationship. The Tribunal was not entirely reassured by the explanations provided and has regard to the fact that no evidence was provided in respect of the sponsor’s health.

56.  These factors raised some hesitation about the genuineness of the parties’ relationship. However, the Tribunal acknowledges that its concerns are purely speculative, and it must consider them in the context of the overall weight of other evidence that supports the existence of a genuine relationship in this case. In this context, the Tribunal observes that the partner migration stream involves a two-stage process before a permanent visa is granted and there will be a further assessment of the relationship at the permanent visa stage. Should any adverse evidence relevant to the genuineness of the relationship become available it can be considered at that time.

57.  On the basis of the above the Tribunal finds that at the time of application and at the time of decision, the parties were not living separately and apart on a permanent basis and that they saw their future as a long-term one. The Tribunal is also satisfied that at time of application and time of decision that the parties continue to have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship is genuine and continuing.

58. Given these findings, 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.

59.  Therefore, the applicant meets cl.820.211(2)(a) and cl.820.221.

60.  : 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

61.  The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2)(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations.

Linda Holub
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).

1. 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.

2. 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).