Ye (Migration)

[2022] AATA 2946

Ye (Migration) [2022] AATA 2946 (16 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jinghua Ye

CASE NUMBER:  1810969

HOME AFFAIRS REFERENCE(S):          BCC2015/3673743

MEMBER:Helena Claringbold

DATE:16 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

Statement made on 16 MAY 2022 at 2:05PM

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – family violence claim – whether a genuine spousal or de facto relationship existed – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65, 359AA, 360
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A; Schedule 2, cl 820.211

CASES
He v MIBP [2017] FCAFC 206

statement of decision and reasons

application for review

1. On 2 December 2015, Ms Jinghua Ye, the applicant, applied for a Partner (Temporary) (Class UK) Subclass 820 visa. The application was based on her partner relationship with Mr Francis Norman Coorey, the sponsor.

2. On 3 April 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor were genuine spousal partners. Therefore, the visa applicant did not meet cl. 820.211(2)(a) and cl. 820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 18 April 2018, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the applicant.

3. On 21 January 2022, the Tribunal wrote to the applicant’s representative, Mr Xu, (the representative) and invited her to a hearing set down for 15 February 2022 to be conducted through Microsoft Teams videoconference.

   ·On 27 January 2022, the representative wrote to the Tribunal and advised of the following: he had tried to contact the applicant since 21 January 2022 and eventually made contact with her. He advised her of the hearing set down for 15 February 2022. The applicant lives by herself in China where there is a strict lockdown due to COVID-19 restrictions. The applicant does not have a computer or computer skills and has no one to assist her. He sought an adjournment of the hearing set down for 15 February 2022 until August 2022 when the applicant would return to Australia.

   ·On 27 January 2022, the Tribunal wrote to the representative requesting the applicant’s residential address in Shanghai. On the same date the representative advised the Tribunal that he couldn’t contact the applicant and would provide her residential address once directed by the applicant.

   ·On 28 January 2022, the representative advised the Tribunal that he telephoned the applicant but she did not answer the call.  In addition, he sent a message to her mobile telephone number but she did not respond. The representative provided the Tribunal with the applicant’s telephone number and advised the Tribunal that he no longer represented the applicant. 

   ·On 28 January 2022, the Tribunal provided the representative with an MR6 form to be completed by the applicant in order for her to withdraw his representation in the review. The representative advised the Tribunal that he was unable to have the form completed and instructed the Tribunal not to contact his office.

4. On 1 February 2022, the Tribunal contacted the applicant on the telephone number provided by the representative. The applicant answered the telephone call. She was advised that her representative had informed the Tribunal that he withdrew representation and no longer acted for her in the review. The applicant advised the Tribunal that her representative remained unchanged. Absent of the completed form and the applicant’s consent to withdraw her representative, the Tribunal must send any document to her representative, instead of the applicant, that it would otherwise have given to the applicant.

5. On 3 February 2022, the Tribunal wrote to the representative and emailed a copy of the correspondence to the applicant. This advised of the following:

   • On 27 January 2022, the representative requested that the hearing set down for 15 February 2022 be postponed until August 2022. On 1 February 2022, the Tribunal contacted the applicant on her nominated telephone number and spoke with her with the assistance of a Mandarin interpreter. The applicant confirmed that she was aware of the hearing set down for 15 February 2022 at 8:30 am (NSW time). The Tribunal advised her that the hearing would be conducted through Microsoft Teams video conference.  The applicant stated that she would attend the Tribunal  hearing.
   • She was advised that after consideration her request to postpone the Tribunal hearing was not granted. She was told that the Tribunal has a responsibility to conduct reviews that are “accessible, fair, just, economical, quick and proportionate” and for these reasons, a hearing on this matter cannot be delayed until August 2022.

6. On 10 February 2022, the representative wrote to the Tribunal and stated the following: all documents sent to his office were sent to the applicant and he no longer represents the applicant. He advised that at the applicant’s request he provided the Tribunal the completed MR6 form signed by the applicant on 9 February 2022.  At her request he also provided the response to hearing invitation signed by the applicant on 9 February 2022 and a death certificate for the sponsor. He stated that should the Tribunal have any questions, to contact the applicant directly.

7. In a letter dated 14 February 2022, the applicant requested a postponement of the Tribunal hearing for six months. She claimed that the Tribunal telephoned her and forced her to attend the Tribunal hearing set down for 15 February 2022. She stated that she is 68 years old and lives alone. She declared that she does not have computer skills or a computer at home so she couldn’t attend a video hearing and the hearing was set down for 5:30 am Shanghai time. Therefore, it would be difficult to have a person assist her with their computer. She stated that the Tribunal only gave her 20 days’ notice for the hearing. She declared that due to COVID-19 restrictions businesses were closed and she couldn’t print the documents and letters that were sent to her from her previous representative on 9 February 2022.

8. On 14 February 2022, the Tribunal wrote to the applicant and advised her again of the information provided in its letter dated 3 February 2022.  It also advised her of the following:

   • On 10 February 2022, her previous representative at her direction confirmed her attendance at the hearing set own for 15 February 2022 and provided the Tribunal a return to hearing Invitation form, signed by the applicant, dated 9 February 2022.
   • On 14 February 2022 at 3:43 pm The Tribunal received a request that the hearing be

   postponed. The Member agreed to the request and the hearing was rescheduled.

   • The applicant was advised that while the Tribunal understands her circumstances, as previously advised, it is guided by the President’s Direction ‘Conducting Migration and Refugee Reviews’. The Tribunal has a responsibility to conduct reviews that are ‘accessible, fair, just, economical, quick and proportionate’. For this reason, a hearing on this matter would not be delayed further than the re-scheduled date of 16 March 2022.
   • She was told that to facilitate her the Tribunal changed the manner of the hearing to teleconference and moved the hearing time to 9:30 am (NSW time). The Tribunal requested that any additional documents or information that she may wish to rely on during the hearing be provided to the Tribunal by 9 March 2022.

9. On 16 March 2022, the Tribunal telephoned the applicant on her nominated telephone number but she did not answer the call. The Tribunal continued to call the applicant several times and received a message that ‘there is no answer from the number you are calling please try again later’. The Tribunal emailed the applicant at 9:49 am. It advised her that the Tribunal was calling her in order to start the hearing scheduled to begin at 9:30 am (NSW time). It asked that she answer the telephone call to enable the hearing to proceed. The Tribunal then telephoned the applicant on the previous telephone number nominated by her and she answered the telephone. The applicant told the Tribunal that she was not aware of the Tribunal hearing set down for 16 March 2022 and she had not been properly notified of the hearing. 

10. On 16 March 2022 at 10:02 am the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant confirmed that she understood the interpreter clearly. The Tribunal told the applicant that on 14 February 2022, the Tribunal wrote to her and invited her to the hearing set down for 16 March 2022.  The invitation to the hearing was sent to the applicant’s last nominated email address.  The Tribunal did not receive any advice of non-delivery of the hearing invitation.

11. The Tribunal decided to proceed with the hearing and to take evidence and arguments from the applicant. The Tribunal does not accept the applicant’s claim that she was forced to attend the Tribunal hearing set down for 15 February 2022. It is not within the President’s directions or the Tribunal’s procedures to force any applicant to attend a Tribunal hearing. Contemporaneous notes about the Tribunal’s contact with the applicant do not indicate any force applied to the applicant for her attendance at the hearing set down for 15 February 2022 and in any case the hearing set down for 15 February 2022 was rescheduled to accommodate the applicant. The Tribunal’s records demonstrate a clear communication with the applicant without any demand being made on her.

12. The Tribunal is of the view that the applicant was properly notified of the hearing set down for 16 March 2022. It is satisfied that the applicant has had ample time to prepare for and provide information to the Tribunal in support of the review including organising a support person if she felt this to be necessary and printing the relevant documents. The application for review was made approximately four years ago. On 19 April 2018, the Tribunal wrote to the applicant and advised her that if she wished to provide material or written arguments to the Tribunal  for consideration, she should provide any information she believed would support her application, including a statement explaining why she disagreed with the delegate’s decision and the information should be provided as soon as possible. On 21 January 2022, the Tribunal wrote to the applicant and invited her to a hearing set down for 15 February 2022. The applicant had seven weeks from 21 January 2022 to prepare for the hearing set down for 16 March 2022. She had approximately five weeks from 9 February 2022 when on her evidence she had received the information from her representative and on her own evidence stated she had been given 20 days’ notice of the Tribunal hearing.

13. In addition, as detailed below the Tribunal put information to the applicant under s.359AA of the Act. The applicant was advised that she could request a copy of the audio of the Tribunal hearing to assist her in responding to this information.  The applicant was provided additional time to respond to that information and told that at that time the Tribunal would make its decision. In addition, the applicant was invited to provide information to support her review, including independent information to support her claims of a court decision making her a benefactor in the sponsor’s estate and any other information she considered relevant to the review. The Tribunal advised the applicant that it would send her an email with the relevant email address for her response to the information put to her and if for any reason should she not receive the email she should contact the Tribunal. The applicant stated that she understood that she needed to have her response to the information put to her within the relevant time.  

14. On 16 March 2016, after the Tribunal hearing, the Tribunal wrote to the applicant at her nominated email address.  She was advised that should she wish to make a submission in support of her application, to email her submission to [email protected] quoting her case number 1810969. It also requested that the applicant provide a list of all addresses where she lived in Australia and names of the people she lived with at those addresses.

15. At the time of this decision, the applicant has not responded to the information put to her at the Tribunal hearing or provided any further information.

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The Tribunal has taken into consideration, individually and completely the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

    ISSUE

18. The issue in the present case is whether the applicant and the sponsor were ever genuine de fact or spousal partners as defined by s. 5CB and s. 5F of the Act.

    BACKGROUND ON THE EVIDENCE

19. The applicant was born in 1954 in Anhui Province, China. The applicant’s mother, three siblings and one son reside in China. The applicant declared a previous marriage to Mr Guo Yubin which ended in divorce on 4 March 2008. On 2 December 2015, the applicant lodged the application for the partner visa.

20. The sponsor was born in 1940 in Australia. The sponsor’s mother and four children reside in Australia. The sponsor declared a previous relationship to Ms Mary Kathleen, which ended in 1963. He declared a spousal relationship with Ms Xiao Ping Ping, which ended in divorce on 17 October 2006.

21. On 15 May 2008, the parties met in Shanghai. On 6 November 2009, the parties married in Shanghai. On 29 November 2016, the parties married in NSW.

22. In the present case, the applicant claims the relationship with the sponsor has ceased and that she is a victim of family violence perpetrated by the sponsor. In support of that claim, she provided the following: an affidavit in support of an application for an Apprehended Violence Order (AVO), an application for an AVO dated 6 April 2017, a letter dated 25 October 2017 from a barrister to the representative which advised that he appeared in Maitland Local Court to represent the applicant in respect of an application for an AVO. The sponsor appeared at court and the matter was adjourned until 12 April 2018. He provided an Interim AVO dated 17 October 2017, to protect the applicant. In a letter dated 12 May 2017, from a barrister to the representative he was advised that the sponsor intended to defend the AVO proceedings and was organising representation.

23. On 10 February 2022, the representative provided the Tribunal with a death certificate for the sponsor. This recorded his death on 28 June 2019. It also recorded his marital status at the time of his death as divorced.

    Was the applicant the spousal or de facto partner of an eligible person?

24. The Tribunal is satisfied that the sponsor, at the time of visa application and decision, was an Australian citizen who had turned 18. 

    Were the parties in a de facto relationship?

25. ‘De facto partner’ is defined in s. 5CB of the Act and 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).

    Were the parties validly married?

26. On 2 December 2015, the visa application was made. After the time the visa application was made the applicant provided evidence of her marriage to the sponsor on 29 November 2016. On the evidence, on 29 November 2016, 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).

    Were the parties in a spousal relationship?

27. ‘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).

28. In forming an opinion about a de facto or spousal relationship, 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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

29. On 21 January 2022, the Tribunal wrote to the applicant and invited her to a Tribunal hearing on 15 February 2022. The applicant was advised of the following: in assessing her matter the Tribunal must consider either r. 1.09A (de facto relationship) or r. 1.15A (spouse relationship) of the Migration Regulations. Regulations 1.09A and 1.15A provide that the Tribunal considers all the circumstances of the parties’ relationship including the financial aspects of the relationship; the nature of the household; the social aspects of the relationship and the nature of the parties’ commitment to each other. The applicant was provided with a guide to the type of information that may be provided and told that it was not a definitive list.

    Are the other requirements for de facto or spousal relationship met?

    The financial aspects of the parties’ relationship

30. The sponsor’s income was derived from his government pension.  The applicant’s income was derived from her salary. A statement for Retirement Access Plus Cheque account ending 9423 is unnamed. It recorded debit transactions for February 2015. No name is recorded and the statement is unremarkable. Another statement for account ending 9323 dated 19 November 2015 is addressed to the sponsor. It recorded various credit and debit transactions. Transaction lists for NAB retirement account ending 0413 in the sponsor’s name are dated 4 June 2015 to 9 November 2015. These record debit transactions and credit transactions.

31. The applicant provided a copy of the sponsors will dated, 14 June 2013. This shows that the sponsor appointed the NSW Trustee and Guardian as executor and trustee of the will. He nominated the applicant as the benefactor of his property, after payment of his estate, if she survived him. In an undated statement the sponsor declared that he made the applicant his sole beneficiary and placed the will in the hands of the Public Trustee to ensure that there were no complications and to protect her after he has gone.

32. The applicant told the Tribunal the following: the sponsor’s estate was worth $670,000. The sponsor’s four children inherited a share of his assets. Through a court judgement she inherited a share in his estate amounting to $100,000.  Her inheritance was granted because of the family violence issue and because she had an AVO. Whenever the sponsor asked her for money, she gave it to him and she told witnesses about this. The parties dined out and didn’t cook at home and she paid for these meals. She paid for a massage chair, a television, a microwave and a computer. She also paid for stairs and windows in the new property.  When the sponsor visited her in Shanghai, she paid for the sponsor’s hotel accommodation. However, she does not have any independent information to support these claims. The Tribunal invited the applicant to provide independent information to support her claimed inheritance from the sponsor’s estate and any other information relevant to the review.  At the time of this decision, no further information has been provided.

1. The parties did not have any joint ownership of real estate or other major assets or any joint liabilities or any pooling of financial resources, especially in relation to major financial commitments. The banking documents do not give any insight into the financial aspects of the parties’ relationship. They did not have any legal obligation in respect of each other, except  for the sponsor nominating the applicant as his benefactor in his will dated 14 June 2013, which is prior to the time of visa application. While the Tribunal accepts that this nomination took place in June 2013, there is no independent evidence that the nomination continued either at the time the visa application was made or after. The applicant claimed that through a court order she inherited $100,000 from the sponsor’s estate. However, no independent information has been provided to support that claim. The applicant claims that she was paying for meals, hotel accommodation, household refurbishments and household goods however these claims are not supported by any independence evidence. Overall, considering a claimed relationship since 2008, there is little independent evidence such as evidence from the witnesses the applicant referred to of any basis of sharing day-to-day household expenses.

   The nature of the parties’ household

2. The parties claim to have met in 2008.  However, this claim is challenged by Departmental records detailed below. The applicant claims that she remained in a married relationship up until the sponsor’s death on 28 June 2019. However, the sponsor’s death certificate  recorded that at the time of his death he was divorced. There is inconsistent information about the time the parties lived together and this is detailed below.

3. In a letter dated 11 February 2015, the sponsor wrote to the Australian Consulate, Shanghai, China and invited the applicant as a guest in his home.  He declared that the parties would like to use the time of the applicant’s visit to reconcile their marriage. He provided an address in Gorokan, NSW.

4. In a statutory declaration dated 13 May 2017, the applicant stated that since October 2016, the parties had lived at an address in Tarro. NSW.

5. A marriage registration dated 16 December 2016 recorded that the parties married on 29 November 2016.  The address given for the parties is Tarro, NSW.

6. In a statutory declaration dated 2 August 2016, the sponsor declared the following: the parties met in 2008 and married in 2009 (in China). The applicant visited him or he visited her each year. In 2010, he applied for a divorce because he felt ashamed that the applicant could not live with him in Australia. When he received the divorce documents the applicant’s name was incorrect. Therefore, the parties’ marriage in China remained in force. On 2 December 2015, he sponsored the applicant for a partner visa. The parties’ relationship continued. He provided a Certificate of Divorce dated 13 September 2011. This recorded that the sponsor applied for a divorce order in relation to a marriage with ‘Qinghua Ye’ solemnised on, 6 November 2009.  The application for a divorce order was on the grounds that the marriage has broken down irretrievably and is proved and the divorce took effect on 14 October 2011.

   ·A translated document informed that the sponsor and ‘Ye Jinghua’ were registered for marriage in Shanghai, China on 6 November 2009.

7. In a statutory declaration dated 8 November 2017 the applicant stated the following. She and the sponsor had a long-term relationship. On 6 November 2009, the sponsor travelled to Shanghai, China to marry the applicant and they lived in a hotel for two weeks. On 8 January 2010, she came to Australia and stayed with the sponsor for two weeks. In July 2010, the sponsor travelled to Shanghai, China and the parties lived in a hotel for six weeks. In October 2010, she came to Australia and stayed with the sponsor for nearly three months. In April 2012, the sponsor travelled to Shanghai, China and the parties lived in a hotel for six weeks. In July 2012, she came to Australia and stayed with the sponsor for nearly three months.  On 7 May 2013, she came to Australia and stayed with the sponsor for nearly three months. On 7 February 2014, she came to Australia and stayed with the sponsor for nearly three months. On 9 August 2015, she came to Australia and lived with the sponsor until 3 April 2017. On 3 April 2017 she applied for an AVO which was granted on 17 October 2017.

8. Information provided in the delegate’s decision record is as follows:

   ·On 18 January 2010, the applicant entered Australia. On 15 February 2010 the applicant departed Australia.

   The Tribunal notes that Departmental records declare that the applicant entered Australia on 8 January 2010.

   The Tribunal notes that this information demonstrates that the applicant was in Australia for approximately 38 days and not two weeks as she claimed.

   ·On 16 October 2010, the applicant entered Australia. On 7 November 2010, the applicant departed Australia.

   The Tribunal notes that this demonstrates that the applicant was in Australia for approximately 22 days and not three months as the applicant claimed.

   ·On 13 April 2011 the applicant entered Australia. On 10 July 2011 the applicant departed Australia.

   The Tribunal notes that this demonstrates that the applicant was in Australia for approximately 2 months and 27 days.

   ·On 10 May 2012, the applicant entered Australia. On 7 August 2012 the applicant departed Australia.

   The Tribunal notes that this demonstrates that the applicant was in Australia for nearly three months as she claimed.

   ·On 7 May 2013, the applicant entered Australia. On 5 June 2013 the applicant departed Australia. 

   The Tribunal notes that this demonstrates the applicant was in Australia for approximately 29 days and not nearly three months as the applicant claimed.

   ·On 7 February 2014, the applicant entered Australia. On 4 March 2014 the applicant departed Australia.

   The Tribunal notes that this demonstrates the applicant was in Australia for approximately 25 days and not nearly three months as the applicant claimed.

   • On 9 October 2015, the applicant entered Australia on a Tourist visa valid until 9 January 2016.

9. The applicant’s records show that from 2010 to 2014 she was in Australia for approximately nine months and 17 days and not twelve and a half months as she claimed.

10. The Tribunal discussed with the applicant the claims she made in her stationery declaration dated 8 November 2017 about the length of time she was in Australia and the length of time she stayed with the sponsor. The Tribunal told the applicant that the claims she made were inconsistent with Departmental movement records as detailed in the delegate’s decision record and explained the inconsistencies to her in detail. The Tribunal told the applicant that it appeared that she misrepresented the length of time she was in Australia and the length of time she claimed to live with the sponsor. In addition, the Tribunal told the applicant that the claims she made about the sponsor’s travel to Shanghai and her travel to Australia were inconsistent with Departmental information relating to her movements and the sponsor’s movements and this information would be put to her in the hearing.

11. The Tribunal put information to the applicant under s.359AA of the Act. She was told the relevance and consequence of the information.  She was invited to comment on or respond to the information and told that she could seek additional time to comment or respond. The applicant sought and was granted additional time to respond. The Tribunal advised the applicant that she could obtain an audio of the Tribunal hearing to assist her in responding to the information. The information is as follows:

    ·On the visa application and sponsorship forms the parties declared that they met on 15 May 2008, in Shanghai, China. Departmental records show that the sponsor did not travel outside of Australia in 2008.

    ·On 2 January 2017, the sponsor wrote to the Department and advised of the following: he withdrew sponsorship for the visa. The applicant was not caring for him.  She left him for three months at a time while she travelled to China for her business. She conducted her business by telephone all night and slept all day. She was not learning English and he couldn’t communicate with her. She was lazy and did not do the housework. He found her to be a difficult person to live with and matters had become worse since they married. This was not helping his health and the applicant was threatening him.

    ·On 31 October 2017, the sponsor wrote to the department and stated that the parties had separated and the applicant was living with someone else in Burwood, NSW and he withdrew sponsorship for the partner visa.

    ·Departmental records for the applicant demonstrate that the dates quoted in the delegate’s decision record relating to the applicant entering and departing Australia are consistent. There is one inconsistency where the delegate stated that the applicant entered Australia on 18 January 2010.  The records show that the applicant entered Australia on 8 January 2010.

    In addition, Departmental records demonstrate that the applicant entered Australia and departed Australia on the following dates:

    ·On 9 October 2015 the applicant entered Australia. On 3 February 2016 the applicant departed Australia. This demonstrates that the applicant was in Australia for three months, 25 days.

    ·On 15 April 2016 the applicant entered Australia. On 25 July 2016 the applicant departed Australia.  This demonstrates that the applicant was in Australia for three months and 10 days.

    ·On 6 October 2016 the applicant entered Australia. On 15 May 2017 the applicant departed Australia. This demonstrates that the applicant was in Australia for 7 months and 9 days or 6 October 2016 to 5 April 2017, when the sponsor declared that the applicant was removed from the home demonstrating a six-month time period.

    ·On 27 July 2017 the applicant entered Australia. On 12 February 2018 the applicant departed Australia. This demonstrates that the applicant was in Australia for six months and 16 days.

    ·On 15 April 2018 the applicant entered Australia. On 22 June 2018 the applicant departed Australia.  This demonstrates that the applicant was in Australia for two months and 7 days.

    ·On 16 September 2018 the applicant entered Australia. On14 February 2019, the applicant departed Australia.  This demonstrates that the applicant was in Australia for four months and 29 days.

    ·On 15 May 2019 the applicant entered Australia. On 29 September 2019 the applicant departed Australia.  This demonstrates that the applicant was in Australia for 4 months and 14 days.

    ·On 15 January 2020 the applicant entered Australia. On 28 January 2020 the applicant departed Australia. This demonstrates that the applicant was in Australia for 13 days. 

    The Department’s records show that the sponsor did not depart Australia at all in 2008. They show that he departed and entered Australia on the following dates:

    ·On 20 February 2009 the sponsor departed Australia. On 20 March 2009 the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for one month.

    ·On 30 October 2009 the sponsor departed Australia. On 10 December 2009, the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for one month and 10 days. The applicant claimed that on 6 November 2009, the sponsor travelled to Shanghai, China to marry the applicant and they lived in a hotel for two weeks.

    ·On 13 July 2010 the sponsor departed Australia. On 3 September 2010 the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for one month and 21 days. The applicant claims that in July 2010 the sponsor visited her in Shanghai and that they lived together in a hotel for six weeks.

    ·On 20 July 2011 the sponsor departed Australia.  On 19 August 2011 the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for 30 days.

    ·On 11 March 2012 the sponsor departed Australia. On 10 May 2012 the sponsor entered Australia.  This demonstrates that the sponsor was outside of Australia for one month and 29 days. The applicant claims that in April 2012, the sponsor visited her in Shanghai and the parties lived together in a hotel for six weeks.

    ·On 16 August 2012 the sponsor departed Australia. On 19 October 2012 the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for 2 months and three days.

    ·On 22 August 2014 the sponsor departed Australia. On 12 September 2014 the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for 21 days.

    ·On 12 November 2014 the sponsor departed Australia. On 10 December 2014 the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for 28 days.

    ·On 5 May 2017 the sponsor departed Australia. On 12 May 2017 the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for seven days.

    ·On 8 November 2017 the sponsor departed Australia. On 6 December 2017 the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for 28 days.

    ·On 9 March 2018 the sponsor departed Australia. On 27 March 2018 the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for 18 days.

    ·On 4 December 2018 the sponsor departed Australia. On 2 January 2019 the sponsor entered Australia. This demonstrates that the sponsor was outside Australia for 29 days.

12. The Tribunal discussed with the applicant the claims she made in her statutory declaration about being in Australia and staying with the sponsor. These claims provided inconsistent information about her travel to and from Australia when compared to her movements as recorded in the delegate’s decision record and confirmed in Departmental records. According to the applicant’s evidence from 2010 to 2014 she stayed with the sponsor in Australia for approximately 12 and a half months. However, the information recorded in the delegate’s decision is that she was in Australia for approximately 9 months and 17 days and this is with an adjustment in relation to the error for January 2010. She claimed that from 2009 to 2012, the sponsor visited her for 14 weeks. In her statutory declaration of 8 November 2017, the applicant declared that she came to Australia on 9 August 2015 and lived with the sponsor until 3 April 2017, which is approximately one year, seven months and 25 days. However, Departmental records show that she didn’t enter Australia until 9 October 2015. The applicant told the Tribunal that after the lodgement of the visa application, she remained in Australia and the parties lived together, which is approximately one year and four months. Departmental records demonstrate that from the time of visa application on 2 December 2015 to 3 April 2017, the applicant was in Australia for approximately 11 months and the sponsor did not depart Australia during this time.

13. The applicant told the Tribunal  the following: that the parties lived together in Hampton, Newcastle.  They then moved to Wyong before returning to live in Hampton, Newcastle. When she came to Australia, the parties lived together up until the incidence of family violence resulting in the AVO.  After the AVO was issued, she was told there would be another court hearing.  However, she waited four years and didn’t hear anything. Despite the AVO the parties remained as husband and wife. She stayed with the sponsor from time to time and last lived with him at the end of 2018 or early 2019. She continued to see the sponsor up until 10 days before he died and they were in a relationship until that time. She did all of the housework and the sponsor would drive her to the shops daily.

14. In the sponsor’s statements he references the applicant taking care of him. On that basis the Tribunal accepts that the parties lived together for a time but does not accept that they lived together as the applicant has claimed.

15. The parties do not have any joint responsibility for the care and support of children. The applicant claims to have lived with the sponsor during different periods of time both in China and Australia. There is little independent information to support her claims and inconsistent information provided by the applicant about her time in Australia when compared to Departmental records. The applicant told the Tribunal the following: initially her visa would permit a stay in Australia of three months. She came to Australia and left Australia and the sponsor travelled to Shanghai on three occasions staying for a month each time. Her accommodation in Shanghai is on the fourth level of the property and as the sponsor was disabled, he could not access the fourth floor so he stayed in a hotel.  However, after lodgement of the visa application (2 December 2015), she remained in Australia for a long time and the parties lived together.  In her statutory declaration dated 8 November 2017, she declared that from 2010 to 2014 she stayed with the sponsor for approximately 12 and a half months.  However as detailed in the delegate’s decision she is recorded as being in Australia for approximately 9 months and 17 days. This time period is after the parties’ first marriage on 6 November 2009 and divorce on 14 September 2011.  It is before the time of the visa application on 2 December 2015 and before the parties’ second marriage on 29 November 2016.  At the Tribunal hearing the applicant stated that after the AVO was issued, she continued in a relationship with the sponsor and stayed with him on occasions. There are references from the sponsor about the applicant providing him with care including in his undated statement where he stated that the applicant was good company and helped in keeping him independent and in his home and in a statutory declaration dated 17 August 2016, where he declared that he reconciled and continued in a relationship with the applicant.  On one hand, the sponsor claims that the applicant did not do any housework but worked at night for her business and slept all day.  On the other hand, the applicant claims that she did all of the housework and the sponsor did not do any because he was disabled. The Tribunal is concerned about the applicant’s credibility.  She misrepresented the periods of times she claimed to have lived with the sponsor. The Tribunal is willing to accept that the parties lived together for a time and the parties may have shared some housework. As a result of the inconsistent information provided by the applicant about the time, she claimed that the parties lived together and the limited information about the parties living arrangements, the Tribunal does not accept that the parties living arrangements were as the applicant claimed.

    The social aspects of the parties’ relationship

16. In an undated statement the sponsor provided the following information: the parties went on a tour of Thailand, Singapore, Malaysia, the Hunter Valley and the Central Coast. The applicant’s sister accompanied them on one of the trips and they met his mother. They like to go sightseeing and eat out.

17. Statutory declarations dated 2015, provide the following Information: Mr JG Robinson who stated he is the sponsor’s father declared that he met the applicant after she married his son in 2010. He met her again in 2011 and 2013 for his birthday breakfast and again in 2015. He  found the applicant to be friendly and is sure the parties are happy together.  Mr Willem Van Der Haas had known the parties for two years.  He saw the parties daily as they were neighbours and he had coffee with them. From his observation the parties are compatible and get along well together. Mr Pei Er Chen had known the parties for five years. When he returns to China or the applicant comes to Australia, they socialise together. He feels that the parties are in love and the applicant takes care of the sponsor. Ms Su He had known the applicant for six years and is her good friend and business partner. She met the sponsor through the applicant five years ago. When the applicant comes to Australia, they have gatherings with the parties.  The applicant takes good care of the sponsor.

1. The applicant told the Tribunal the following: the sponsor was estranged from his four children. She didn’t meet the sponsor’s friends and he didn’t have a good relationship with his neighbours. When he became ill, he contacted his eldest daughter to care for him. She does not know about the three other children. Sometimes the parties got together with her friends. She does not have any family in Australia and does not know a lot of people in Australia. However, she made some friends in Australia and the couple ‘Su He’ who were the parties’ mutual friends visited her when they were in Shanghai.  During the Spring festival in 2018, she volunteered for a Buddhist charity event by helping in the kitchen. She does not have any business interests in Australia.   

2. Photographic evidence depicts the parties with the sponsor’s mother and together and with other people at different locations. The applicant told the Tribunal that there are records of emails and chat messages between the parties.  The Tribunal told her that these are not before the  Tribunal and she could provide any information to support the review in her post hearing submission.

3. The parties represented themselves to other people as being married to each other and the opinion of witnesses is that they were in a relationship. It would appear that the parties planned and undertook some joint social activities together. While the Tribunal accepts that the witnesses of third-party statements believe the parties relationship to be genuine, the Tribunal is of the view that these statements do not outweigh the inconsistent information the applicant provided as part of the visa application. This inconsistent information led the Tribunal to have concerns about the applicant’s credibility and this is discussed in this decision record.

   The nature of the parties’ commitment to each other

4. The parties claim to have met each other in 2008 and that they were initially married  on 6 November 2009 in Shanghai, China.

5. In an undated statement the sponsor provided the following information: the parties had known each other since 2008. In 2009 they married and were at ease with each other and had a strong bond and trust. The applicant is good company and a big help in him keeping his independence. In a statement dated 17 November 2015, the sponsor stated that he lost the use of his knees in a car accident in 1959. He asked the applicant to come to Australia and care for him and she agreed and that this would allow him to stay in his home and not go into a nursing home.

6. Information provided in the delegate’s decision record is as follows:

   ·On 2 December 2015, the partner application was lodged.

   • On 24 July 2016, the sponsor indicated that he wanted to withdraw his sponsorship on the application.
   • On 17 August 2016 the sponsor sent a statutory declaration through the representative indicating that he reconciled and continues to be in relationship with the applicant.
   • On 2 January 2017 the sponsor again informed the department that he withdrew his sponsorship for the visa application.
   • On 20 January 2017, the Department wrote to the applicant and provided information concerning the criteria that must be met to continue with the application.

   ·On 27 January 2017 the representative informed the department that the relationship status not changed and that the applicant and sponsor were still living together as husband and wife.

   • On 5 April 2017, the sponsor informed the department that the applicant was removed from his home by police for being violent.
   • On 30 July 2017, the representative advised the Department that the applicant applied for an AVO against the sponsor. The applicant provided an affidavit indicating that she is a victim of family violence perpetrated by the sponsor.
   • On 26 October 2017 the representative provided an Interim Order-Apprehended Domestic Violence Order against the sponsor.
   • On 21 August 2017 the Department wrote to the applicant and requested that she provide information to support that she was in a genuine relationship with the sponsor until the relationship ceased.  

7. In a statement dated 15 November 2015 the applicant stated that she had retired ‘from the enterprise’. The sponsor’s health was not good and he asked her to live with him long term to look after him.

8. In a statutory declaration dated 2 August 2016, the sponsor declared the following: he needed the applicant to live with him for the rest of his life and needed her to accompany him.

9. In a letter dated 25 January 2017, the representative stated that they note that on 2 January 2017, the sponsor withdrew sponsorship. They are instructed that the withdrawal of sponsorship was written after the parties had an argument. The applicant cares for the sponsor and assists him undertake tasks that are difficult. The sponsor instructs that the parties’ relationship is ongoing and he wishes to continue with the partner visa application.

10. A letter dated 12 May 2017, from a barrister to the representative advising that the sponsor intended to defend the AVO proceedings set down for 12 April 2018 and was organising representation.

11. In an affidavit dated 13 May 2017, in support of her application for an AVO the applicant stated that  she found out on 26 March 2017, the sponsor had formed an online romantic relationship with a woman in Thailand.

12. On 10 February 2022, the representative provided a death certificate for the sponsor registered on 22 July 2019. This recorded the sponsor’s death on 28 June 2019 and his marital status as divorced.

13. The applicant told the Tribunal the following: the parties met in China in 2008 and married in Shanghai in 2009. In 2010, they argued and the sponsor applied for a divorce. She told him that he had written her name incorrectly on the divorce papers and the parties continued in a husband and wife relationship. In ‘September 2015’, the parties registered their marriage in Australia. When the sponsor was ill, he sent messages to her asking that she care for him but at the time her mother was also ill. When she was in Shanghai the sponsor called her and asked her to come to Australia. During the telephone call the sponsor’s daughter hung up the call. She had a de facto relationship with the sponsor and he died. When the sponsor died the parties were still married.

14. The Tribunal asked the applicant about her affidavit dated 13 May 2017, where she stated that she had found the sponsor had formed a romantic relationship with a woman in Thailand. The applicant told the Tribunal the following: on the morning of 26 March 2017, she witnessed the sponsor having a video chat with the woman. When the applicant returned from Shanghai,  she found the clothes she had in the closet were missing.  She suspected that this woman had stolen the clothes. However, she was unsure if the woman lived with the sponsor.

15. The Tribunal discussed with the applicant a Centrelink income statement dated 17 November 2015 addressed to the sponsor which recorded him as not being partnered. The applicant told the Tribunal that she didn’t know about this.

16. The parties claim to have met in person in 2008. Departmental records show that the sponsor did not depart Australia in 2008.  The records demonstrate that the sponsor departed Australia on 20 February 2009, on that basis the parties may have met each other after that time. The parties married on 6 November 2009, in Shanghai, China. On 14 September 2011, the sponsor applied for a divorce from the applicant in Australia and the divorce was granted. The sponsor claimed that this was because the applicant could not live with him in Australia. He stated that the name on the divorce document was incorrectly spelt, therefore the  marriage continued to be valid. However, there is no independent evidence to support this statement.

17. The applicant misrepresented the period of time she was in Australia from 2010 to 2014 claiming it to be approximately 12 and a half months. This information is inconsistent with the information in the delegate’s decision record that during this time period she was in Australia for approximately 9 months and 17 days.

18. Departmental records demonstrate that the applicant entered Australia on 9 October 2015.  On 17 November 2015, Centrelink recorded him as not being partnered.  On 2 December 2015, the visa application was lodged. Approximately seven and a half months after the lodgement of the visa application the sponsor withdrew sponsorship for the partner visa. He then claimed he had not sent the email withdrawing his sponsorship. The applicant provided evidence to the Tribunal that the parties registered their marriage in Australia in September 2015.  However, their marriage registration certificate recorded their marriage on 29 November 2016 and the marriage was registered on 16 December 2016. On 2 January 2017, one month and five days after the parties’ marriage, the sponsor withdrew sponsorship for the partner visa application. On 27 January 2017, the representative claimed that the relationship continued and the parties lived together as husband and wife. On 5 April 2017, the sponsor advised the Department that the applicant had been removed from his home for being violent. From the time of visa application on 2 December 2015 to 5 April 2017, when the sponsor declared that the applicant had been removed from the home, the applicant was in Australia for approximately eight months and 12 days. The sponsor did not depart Australia during this time. On 6 April 2017 the applicant applied for an interim AVO which was issued on 17 October 2017. The information is that the sponsor intended to defend the claims made by the applicant at a hearing set down for 12 April 2018. Although the applicant claimed to the Tribunal that at the time of the sponsor’s death on 28 June 2019, she continued to be married to the sponsor, the sponsor’s death certificate recorded him as being divorced.

19. Considering the claim by the applicant that the parties’ relationship began in 2008 and ended when the sponsor died on 28 June 2019, there is limited evidence about the financial aspects of the parties’ relationship or the nature of the household or the nature of their commitment to each other. The Tribunal accepts that the sponsor nominated the applicant as the beneficiary in his will on 4 June 2013 and stated that he wanted to protect her. The Tribunal feels that the parties did live together for a time and would have provided some companionship and emotional support for each other. The Tribunal is mindful of the information provided by the representative on 25 January 2017, that the applicant cared for the sponsor and the sponsor instructs that the parties’ relationship is ongoing and he wishes to continue with the partner visa application and other comments about the applicant caring for the sponsor. However, there is inconsistent information about the length of time the parties lived together and the applicant’s claim of remaining married to the applicant up until his death is not supported by his death certificate.  Overall, the Tribunal is not satisfied that the applicant is a witness of truth. The Tribunal is not satisfied that the parties lived together as the applicant claimed. The Tribunal is not satisfied that the sponsor ever did see the parties’ relationship as a long-term one. Shortly after the parties’ first marriage in November 2009, he initiated divorce proceedings. Within months of the lodgement of the partner visa application he withdrew sponsorship for the application. On the applicant’s evidence on 26 March 2017, approximately four months after the parties married in Australia, the sponsor had formed an online romantic relationship with a woman in Thailand.

20. The Tribunal considered the information individually and completely. The applicant provided inconsistent information when compared with Departmental movement records about the parties’ relationship including about when they met, the periods of time they lived together, and of remaining married to the sponsor at the time of his death. At the Tribunal hearing she stated that after the AVO was granted the parties relationship continued.  However, there is no evidence from the sponsor to support this claim. When consistent, independent and supportive information is provided about the different aspects of a relationship, the Tribunal can ascertain from the information the parties’ commitment to each other. The parties make allegations against each other about their relationship and about alleged abuses. On one hand, the sponsor claimed that the applicant did not do any housework but was on the telephone for business during the night and slept all day. He stated that the police removed her from his home because she was violent. On the other hand, the applicant claimed that the sponsor abused her. After the incident where the sponsor claimed she was removed from his home she applied for an interim ADVO. The sponsor provided some information about the different aspects of the parties’ relationship to the Department, including that the parties’ relationship continued, but it is limited.

21. Given the limited independent evidence from the sponsor about the different aspects of the parties’ relationship and the applicant misrepresenting the parties’ relationship and the  Tribunal’s credibility concerns, the Tribunal is not prepared to accept the applicant’s evidence about the parties’ commitment to the relationship. It does not accept that the third-party evidence outweighs the inconsistent evidence the applicant has given about the parties’ relationship. The applicant has not satisfied the Tribunal that at the time of application, or at any time, the parties ever had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that they had a genuine and continuing relationship. Without further independent evidence about these aspects of the parties’ relationship and after considering the evidence individually and completely, the Tribunal is not satisfied on the evidence that a spousal relationship ever existed between the applicant and the sponsor.  

22. The Tribunal is not satisfied that at the time of the visa application or at any time, the sponsor and the applicant ever had a mutual commitment to a shared life as spousal partners or de facto partners to the exclusion of all others; or that their relationship was genuine and continuing.  The applicant therefore does not meet the requirements of s.5F or s. 5CB of the Act.

23. Accordingly, the applicant cannot satisfy cl.820.211(2)(a) of Schedule 2 to Regulations.

24. The Tribunal considered the information about the claims of family violence, in so far as it related to the parties’ relationship. As the Tribunal is not satisfied that the parties ever shared a spousal or de facto relationship, it has not gone on to consider the applicant’s claims of family violence. As a result, the applicant does not satisfy cl. 820.221(3)(a) of Schedule 2 to the Regulations.

25. As the Tribunal is not satisfied that the parties ever shared a spousal or de facto relationship, it has not gone on to consider the  death exception.

26. There is no evidence before the Tribunal that the applicant satisfies any of the alternative criteria for the grant of the visa. Therefore, the applicant does not meet cl.820.211(2)(a) and cl.820.221 as required for the grant of the visa.

    decision

27. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Helena Claringbold
    Member