Ye (Migration)

[2020] AATA 4313

Ye (Migration) [2020] AATA 4313 (16 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Qin Ye

CASE NUMBER:  1836312

DIBP REFERENCE(S):  BCC2014/3596823

MEMBER:Christine Kannis

DATE:16 October 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2)(c) of Schedule 2 to the Regulations

Statement made on 16 October 2020 at 6:41am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine de facto relationship – financial, household and social aspects of relationship – living separately for periods for family reasons and COVID-19 travel restrictions – nature of commitment – plans for wedding – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 1.09A(3), Schedule 2, cl 801.221(2)(c)

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 23 November 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 December 2014 on the basis of her relationship with her sponsor, Mr Jiaxu Dong. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.801.221(2)(c) because the delegate was not satisfied the applicant and sponsor continued to be in a genuine de facto relationship or genuine spousal relationship.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant appeared before the Tribunal by video on 6 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 801.221(2)(c) requires that at the time of this decision the applicant continues to be the spouse or de facto partner of the sponsoring partner who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant.

9. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian permanent resident and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant. The applicant confirmed at hearing that she and the sponsor are not married.

10. Section 5CB provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2). In forming an opinion as to whether parties are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship; the nature of the household and the persons’ commitment to each other as set out in r.1.09A(3) which is attached to this decision.

11. The issue in the present case is whether the relationship between the applicant and the sponsor continues to meet the definition of a de facto relationship in s.5CB of the Act.

    Background

12. The applicant first arrived in Australia on 11 November 2009 as the holder of a Student visa. She was subsequently granted further Student visas, Visitor visas and Bridging visas. On 31 December 2014 the applicant lodged a combined application for Subclass 820/801 visas. The applicant was granted a Subclass 820 visa on 1 July 2016.

13. The sponsor is an Australian permanent resident. Both parties are Chinese nationals.

14. The applicant and the sponsor first met in October 2012 and they commenced a de facto relationship on 10 March 2013. Since 2017 the sponsor has resided in Melbourne for extended periods because he has been involved in his father’s family law legal proceedings. His father resides in Melbourne and some of the property in dispute is in Melbourne. The sponsor’s uncle’s business is in Melbourne and his uncle contributed towards the sponsor’s legal fees in lieu of paying him a salary.

15. When refusing the visa the delegate relied in part on statutory declarations made by the parties on 29 April 2016. The delegate noted that the statutory declarations were “typed verbatim using pronouns to describe you and your sponsor, it is impossible to establish the intended context of these statements”. The delegate also stated that “This format undermines the integrity of the information provided in your application”. The Tribunal notes that these statutory declarations were made prior to the applicant being granted a Subclass 820 visa. In an affidavit provided to the Tribunal prior to hearing, the applicant stated that she and the sponsor had previously relied on a migration agent who she now considers provided a very poor service. She said they provided their instructions in Chinese and trusted the migration agent to prepare the statutory declarations based on those instructions. In her affidavit the applicant said she now regards the migration agent as either incompetent, negligent and lazy or as being under the influence of some type of substance during the time he prepared and finalised their documents. She indicated that she is considering lodging a formal complaint against the migration agent.

16. Prior to the hearing the applicant’s current representative provided documentation which included but was not limited to affidavits made by the applicant and the sponsor, bank statements, statutory declarations and photos. The Tribunal had before it significantly more information than was available to the delegate.

17. The Tribunal considered the matters under r.1.09A(3).

    Whether the parties are in a spouse or de facto relationship

    Financial aspects of the relationship

18. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including the joint ownership of assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party and any sharing of day-to-day household expenses.

19. The sponsor is the registered proprietor of two properties, Ryrie Avenue Como WA (Ryrie Avenue) and Riverside Road Hawthorn Victoria (Riverside Road). The properties were purchased prior to the commencement of the parties’ relationship. The applicant resides at Ryrie Avenue.

20. In her affidavit the applicant said she and the sponsor have a joint HSBC account. She said her salary is paid into the account and she and the sponsor use the account to pay for their day-to-day expenses. She said the sponsor pays the mortgage for their home at Ryrie Avenue from rental income from a room at Riversdale Road. She said the sponsor also received income from his uncle.

21. HSBC statements for the period 22 January 2020 to 22 July 2020 were provided. The credit transactions were predominantly deposits relating to the applicant’s salary and the debit transactions were predominantly identified as transactions which occurred in Perth. The credit transactions also included two transfers of significant amounts on 8 July 2020. Both parties gave consistent evidence that these amounts had been deposited by the sponsor in repayment of monies he had previously withdrawn for legal fees.  At hearing the applicant told the Tribunal that she pays for the parties’ joint living expenses from her salary. During periods when the sponsor resides in Melbourne his father pays for living expenses such as food and utilities.

22. The parties gave consistent evidence at hearing that the sponsor’s current sources of income are rental income from Riverside Road and income from his uncle. The rental income is used to pay the mortgage on Riverside Road and Ryrie Avenue and if there is a shortfall the sponsor’s father provides financial assistance.

23. The applicant told the Tribunal that they made enquiries about transferring Ryrie Avenue into joint names however she does not have permanent residency and the stamp duty costs are significant.

24. The applicant and the sponsor gave consistent evidence about the sources of the funds in the joint account and the bills paid from the joint account. The sponsor said he rarely contributes to the joint account however he is responsible for the mortgage payments on Ryrie Avenue. The parties gave evidence that this is their home and that they plan to build another house at the rear of the property.

25. The Tribunal finds the evidence indicates that the parties pool their financial resources and share living costs. The Tribunal decided that this is an indicator of a de facto relationship at the time of decision.

    Nature of the household

26. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

27. In her affidavit the applicant said that from 2013 until the present time, she and the sponsor have lived as de facto husband and wife. She said that during the period mid-2017 to May 2020, the sponsor’s father and uncle were involved in family law proceedings following the breakdown of the sponsor’s father’s marriage to the sponsor’s former stepmother. The applicant said during this time the sponsor travelled to Melbourne for the family law proceedings and to work in his uncle's construction business. The Tribunal was provided with a copy of the Final Order dated 21 May 2020. She said after the proceedings were finalised the sponsor planned to return to Perth however COVID-19 restrictions came into place.

28. At hearing the applicant gave detailed evidence of the periods during which the sponsor returned to live in Perth. Notably, he returned in late 2018 to support the applicant following the delegate’s decision to refuse the visa. In addition, the applicant said she travelled to Melbourne in December 2018 and stayed until the end of February 2019.

29. In her affidavit the applicant said when they are residing together she does the majority of the house work and cooking and the sponsor maintains the house, cleans the car and does the gardening and things like furniture assembly or replacing the showerhead and fixing things around the house.

30. Alinta energy bills for Ryrie Road in 2019 and 2020 addressed to the applicant and the sponsor jointly were provided. Given that the sponsor was not residing at this address during the periods of the bills the Tribunal gives this evidence no weight.

31. The Tribunal accepts the evidence about the nature of the household and finds that it is an indicator of a de facto relationship at the time of this decision 

    Social aspects of the relationship

32. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being in a de facto relationship.

33. In her affidavit the applicant stated that all their friends and families know that they are a couple. She said she has a close relationship with the sponsor’s mother and father and they treat her as a daughter.  She said when she and the sponsor introduce each other to friends they refer to each other as husband and wife.

34. Two current statutory declarations were provided. The sponsor’s father, Mr Chungjiang Dong, said he first met the applicant in 2013 when she travelled to Melbourne with the sponsor. He said since then she has travelled to Melbourne when she and the sponsor have had time. He has also visited them in Perth. Mr Dong said the applicant has met their family and said their family has met her family. He said he also went on short trips to Canberra and Sydney with her family. His reasons for believing the parties’ relationship is genuine and continuing include that since 2013 he has seen their love for each other grow. He also said the parties supported him during the difficult family law proceedings. The Tribunal gives some weight to this evidence.

35. The other current statutory declaration was provided by a friend, Ms Yen Ming Tsao. Ms Tsao has known the parties for six years. She said she is older than them and they often contact her for advice when they encounter problems or have disagreements. She said the applicant and sponsor are both very understanding and supportive of each other. Ms Tsao’s reasons for believing the parties’ relationship is genuine and continuing include that she has seen their happiness during the times she has spent with them as a couple. The Tribunal gives some weight to this evidence.

36. The applicant told the Tribunal that Ms Tsao is like an elder to her and the sponsor. The parties gave consistent evidence in relation to the most recent time they spent with Ms Tsao as a couple.

37. In her Individual Tax Return (ITR) for the 2018/19 financial year the applicant indicated that the sponsor was her spouse for the full year.  The applicant told the Tribunal her ITR for the current financial year has not yet been completed.

38. Numerous photos of the parties with family and friends were provided. The photos were indicated to have been taken at social gatherings in 2019 and 2020.

39. The Tribunal accepts this evidence and, from the evidence before it, finds that the applicant and the sponsor have represented themselves socially to family and friends and the Australia Taxation Office as a couple and that they continue to do so at the time of this decision.

    Nature of persons’ commitment to each other

40. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

41. In her affidavit the applicant said she and the sponsor remained committed to each other during the stressful period of the sponsor’s father was involved in family law proceedings. At hearing the applicant said during this time she supported the sponsor by showing him understanding. She said they encouraged each other and tried to lighten each other’s burden. The applicant told the Tribunal that the family law proceedings changed both her and the sponsor. She said prior to the case they had an enthusiasm for life and went out a lot, dined out and travelled. She said now they stay home and enjoy the peace and just watch television or do some gardening together.

42. In her affidavit the applicant said when she and the sponsor are not living together in the same city they zoom each other regularly including on occasion, intimately.  She referred to wearing lingerie and using adult toys during some sessions and said at times the sponsor recorded her and told her he wanted to save the video for times that they were not zooming or when she is too tired to zoom him. The applicant said she and the sponsor also keep in contact using WeChat and a recent history (in Chinese and an English translation) was provided. Some of the conversation demonstrates the intimate nature of the parties’ relationship. At hearing both parties gave consistent evidence that they contact each other by WeChat on a daily basis when they are not living in the same city.

43. In her affidavit the applicant said in public and in private she calls the sponsor "lao gong" which is a less formal and more endearing word for "husband" in Chinese and he calls her "lao po" which is a less formal and more endearing word for "wife" in Chinese.

44. In her affidavit the applicant said she and the sponsor will marry on 1 January 2021. A Notice of Intended Marriage dated 22 September 2020 was provided to the Tribunal. In her affidavit the applicant said she and the sponsor want to have two children. At hearing the applicant confirmed that if the Western Australia opens its borders, they will marry on 1 January 2021 and both their families will attend the wedding.

45. The applicant explained to the Tribunal that she has been in a relationship with the sponsor for eight years and said he is not just her partner but he is her “life teacher”. She said he helps her whenever she is struggling. The applicant said after she completed her Bachelor degree she originally intended to study a Master’s degree in business however she changed her field of study to building and construction so that she can work with the sponsor in the future in his work in the building industry.

46. In her affidavit the applicant said despite not living under the same roof for some periods, she and the sponsor were not living separately or apart on a permanent basis. She said they have always maintained their intimacy, love and commitment to each other.  The applicant said they have always intended to live permanently in Perth. She said the sponsor had to travel to Melbourne for substantial periods of time because he had been embroiled in the family law dispute between his father and his former stepmother. She said they decided she would not move to Melbourne because their future is in Perth. She said travelled less to Melbourne because it was a place filled with family conflict and stress arising from the family law proceedings, and because her mother-in-law has no other relatives in Australia other than her and the sponsor. She said her mother-in-law loves Perth more than Melbourne and out of her wish to be a good daughter-in-law, and as she knows the sponsor loves and listens to his mum, she believed it would be best for the family if she travelled less to Melbourne. The Tribunal accepts this evidence.

47. The delegate stated that the evidence suggested the applicant was the sponsor’s mother’s carer. In her affidavit the applicant said she does care for her mother-in-law when she is in Australia and said she had a very close relationship with her. The applicant said that in Chinese culture, a good daughter-in-law having a good relationship and abiding filial piety is valued and an indication of virtue and commitment to the family. The Tribunal accepts this evidence.

48. The sponsor told the Tribunal that during the family law proceedings the applicant provided him with enormous emotional support. He said she told him that even if he lost the asset the subject of the dispute, it would not be the end of the world. She encouraged him to end the proceedings so that they could start their life together. The sponsor told the Tribunal that their future plans include building a house behind the house in which the applicant currently resides at Ryrie Avenue. Building plans for the house were provided to the Tribunal. Both parties said that the applicant’s father will assist financially with the house and the sponsor’s father will assist in the construction of the house. He said he and the applicant plan to marry when the borders open and they hope to start a family.

49. The parties provided current documentation which indicates that they have nominated each other as the only beneficiary of their respective superannuation entitlements.

50. The Tribunal finds that the parties provide each other with emotional support and that they see the relationship as long-term. The Tribunal places weight on the nature of each person’s commitment to the other.

    Conclusion

1. At hearing, the parties provided consistent evidence about their financial circumstances, the addresses at which they have resided, their social life and their future plans. The Tribunal found the applicant and the sponsor to be credible witnesses.

2. Having regard to all of the evidence, the Tribunal concludes as follows:

   ·the parties live together, or do not live separately and apart on a permanent basis;

   ·they are not related by family;

   ·they have a mutual commitment to a shared life together to the exclusion of others; and

   ·the relationship is genuine and continuing.

3. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of this decision. Therefore, the applicant meets cl.801.221(2)(c).

4. 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 801 visa.

   DECISION

5. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·cl.801.221(2)(c) of Schedule 2 to the Regulations

   Christine Kannis
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.09A     De facto partner and de facto relationship

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

   Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

   Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

   Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).