Yu (Migration)

[2022] AATA 3867

Yu (Migration) [2022] AATA 3867 (2 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jiyan Yu

REPRESENTATIVE:  Ms MIn Juan Dai

CASE NUMBER:  2107841

HOME AFFAIRS REFERENCE(S):          BCC2017/322636

MEMBER:Margie Bourke

DATE:2 November 2022

PLACE OF DECISION:  Melbourne

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) and cl.820.221(2) of Schedule 2 to the Regulations.

Statement made on 02 November 2022 at 11:41am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – documentary evidence and supporting statements – age and language differences – sponsor’s deteriorating health and death – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221(2)

CASES
Bretag v MILGEA [1991] FCA 582
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 24 January 2017 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.

3. 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 was not satisfied the applicant provided sufficient evidence and information to demonstrate she was the spouse of the sponsor within the meaning of s.5F(2) of the Act.

4. The Department’s decision record was dated 1 May 2019. The decision of the Department was affirmed by the Tribunal (differently constituted) in a decision dated 9 September 2020.

5. By order of the Federal Circuit Court dated 4 June 2021, the application was remitted by consent back to the Tribunal. The order of the Federal Circuit Court was that the decision of the Tribunal dated 9 September 2020 was affected by jurisdictional error in the Tribunal failed to give real and genuine consideration to the applicant’s request for witnesses to give oral evidence. I have noted that in the applicant’s affidavit dated 2 October 2020 in support of the appeal to the Federal Circuit Court, at paragraph 15, the applicant refers to the four witnesses who gave evidence, and that the member has not given due weight to the evidence. I note that the decision of the Tribunal dated nine September 2020 does not record that witnesses attended and gave evidence and does not refer to the evidence of the witnesses.

6. The Tribunal has considered the information provided to the Department, the matters recorded in the Department’s decision record dated 1 May 2019, the information provided to the Tribunal and the information in the applicant’s affidavit dated 2 October 2020. I have reached a different conclusion to the Department and differently previously constituted Tribunal. I am satisfied that the Tribunal can make a decision favourable to the applicant, based on all the information available to the Tribunal, without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

7. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   Consideration of claims and evidence

   SPOUSE/DE FACTO (cl 820.211(2)(a), cl 820.221)

   Whether the parties are in a spouse or de facto relationship

8. 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 was an Australian citizen. It is relevant to note that based on the registered death certificate provided by the applicant, the sponsor died on 5 June 2019.

9. ‘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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the registered marriage certificate I am satisfied that the applicant and sponsor were married in Melbourne on 21 December 2016. Based on the applicant’s divorce certificate, I am satisfied the applicant was previously married and divorced in China on 7 April 2004. Based on the divorce order, I am satisfied the sponsor was previously married in 2006 and divorced on 22 January 2013. On the evidence before the Tribunal, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

11. The Tribunal has considered the information and evidence that was provided to both the Department and the Tribunal, which included the registered marriage certificate, statutory declarations from the applicant dated 11 March 2019 and 4 September 2020, statutory declarations from Barry Baxter dated 10 January 2017 and dated 2 September 2020, statutory declaration from Guo Hua Chen dated 20 January 2017, statutory declaration from John Love dated 1 September 2020, statutory declaration from Wang Xian Jun dated 2 September 2020, enduring medical power of attorney in relation to the sponsor given to the applicant dated 7 April 2017, collection of medical reports, invoices, prescriptions and letters in relation to the sponsor, joint bank statements in the names of the applicant and the sponsor, Centrelink documents in relation to the sponsor, fund transfers from the UK to the sponsor, extensive correspondence to the residential address of the applicant and the sponsor, utility and medical bills, collection of photographs provided at different times to both the Department and the Tribunal, information and correspondence from the aged care facility to the sponsor, information and correspondence from the undertakers and crematorium to the sponsor, submission from the representative to the previously constituted Tribunal dated 7 September 2020, and the affidavit of the applicant to the Federal Circuit Court dated 2 October 2020.

12. The Tribunal has noted the concern of the delegate in relation to the enduring medical power of attorney, and the fact that treating medical professionals still corresponded with the sponsor. The Tribunal accepts it is credible and plausible that the sponsor whose health was deteriorating in April 2017 would give his spouse enduring medical power of attorney in an appropriate plan for his future treatment, but still engage with his treating medical professionals while he had the capacity.

13. The Tribunal is satisfied that the sponsor was diagnosed with dementia in July 2018, and it was recommended at that time that he be placed in a transitional facility when leaving hospital, rather than return home with the applicant. The Tribunal is satisfied that the applicant insisted the sponsor return home with her and she continued to care for him although he had other hospital admissions. The Tribunal is satisfied based on the information before it that the sponsor’s dementia condition deteriorated, and in March 2019, again on medical advice upon discharge from hospital he was placed in a transitional facility, and then in an aged care facility.

14. The Tribunal has noted the concern of the delegate that the applicant and sponsor had a different first language. The Tribunal has considered the written evidence of witnesses that the parties had enjoyed a supportive and caring relationship. The Tribunal accepts that the applicant and the sponsor overcame any language barrier between them.

15. The Tribunal has noted the concern of the delegate that the applicant returned to China during her relationship with the sponsor. The Tribunal does not draw any negative inference from the information that the applicant travelled to China which she has relatives, including a son, during the time of her marriage.

16. The Tribunal has applied the principles espoused in Bretag v MILGEA [1991] FCA 582, and considered the subsequent history of the relationship in making its time of application findings, so long as the evidence of the subsequent history of the relationship logically shows the existence or nonexistence of facts to be determined at the time of application.

17. Financial aspects of the relationship: – I am satisfied based on evidence before me that the applicant and sponsor did not have joint ownership of real estate or other major assets. I accept the applicant has property in China, which had been subject to a dispute with relatives. I am satisfied that the applicant and the sponsor did not have joint liabilities excluding their rent commitments. I am satisfied the applicant and sponsor did not have major investments or financial commitments together.  I accept that they pooled their financial resources in establishing and maintaining their joint bank account, and the sources of income, including the sponsor’s Centrelink payments and his payments from the insurance fund from the UK, and the applicant’s income were deposited in their joint bank account. I accept the applicant and sponsor were jointly responsible for the sponsor’s medical bills, and the bills for the time he spent in the aged care facility. There is no evidence before the Tribunal that either the applicant or the sponsor owed a legal obligation in respect of the other. I am satisfied that the parties shared the day-to-day household expenses of the rented accommodation. I accept all their financial matters were handled by the sponsor.

18. The evidence of the financial aspects of the relationship at the time of application and up until the time of the sponsor’s death indicate that the parties were in a genuine and continuing relationship.

19. Nature of the household: – I am satisfied based on the evidence before me that the applicant and sponsor did not have joint responsibility for the care and support of children. I am satisfied based on the written evidence, including the statutory declarations of friends who visited them, and the detailed statutory declarations of the applicant, that the parties lived together as spouses. I am satisfied that the applicant and sponsor lived together from the time of their marriage, until the time the sponsor moved into an aged care facility on the recommendation of medical professionals in March 2019, three months before his death. I am satisfied based on the written evidence of the applicant, including her statutory declarations and the affidavit dated 2 October 2020, that she undertook responsibility for the housework, and the sponsor undertook responsibility for managing their financial affairs.

20. The evidence of the nature of the household is limited but indicates the parties were in a genuine and continuing relationship at the time of application and up until the time of the sponsor’s death.

21. Social aspects of the relationship: – I am satisfied based on the evidence of the four deponents of the statutory declarations, particularly Barry Baxter who attended their wedding, that the applicant and sponsor represented themselves to other people as being married. I have also considered the medical reports and the death certificate that record the marriage between the applicant and the sponsor. I am satisfied based on the statutory declarations that in the opinion of the applicant’s and sponsor’s friends and acquaintances, their relationship was genuine, happy, caring and continuing. I am satisfied based on the information available to me that for a substantial time of their married life the sponsor was seriously unwell and this limited their social activities. I am satisfied based on the written evidence provided that the applicant and sponsor visited, and were visited by, their friends.

22. The evidence of the social aspects of the relationship indicates that the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others, and that the relationship was genuine and continuing at the time of application and up until the time of the sponsor’s death.

23. Nature of the persons’ commitment to each other: – I am satisfied that the parties lived together from the time of their marriage on 21 December 2016, until the sponsor was placed in a nursing home on 4 March 2019. I am satisfied the duration of the married relationship between the parties was from the time of their marriage on 21 December 2016 until the time of the sponsor’s death on 5 June 2019. I am satisfied based on the statutory declarations and medical reports provided that the applicant and sponsor provided a degree of companionship and support and happiness to each other. I am satisfied that the applicant is grieving, and finds it difficult to reconcile her decision to allow the sponsor to be moved into an aged care facility, which she feels was against his wishes and hastened his decline. I am satisfied that the applicant visited the sponsor regularly at the aged care facility, and continued to care for him as his wife while he was in the facility. I accept the applicant and sponsor were married later in life, and there was an age difference between them, but that they both considered their relationship was a long-term one.

24. The evidence of the nature of the persons’ commitment to each other indicates that the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others, that the relationship was genuine and continuing, and that they lived together and not separately and apart, on a permanent basis, at the time of application and until the time of the sponsor’s death.

25. For all the above reasons the Tribunal is satisfied after considering the circumstances of the relationship as set out in r.1.15A(3), that at the time of application, and until the time of the sponsor’s death, the applicant was the spouse of the sponsor within the meaning of s.5F(2). The Tribunal finds the applicant and sponsor were in a genuine and continuing relationship, they had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and they lived together, and not separately and apart, on a permanent basis.

26. On the basis of the above the Tribunal satisfied that the requirements of s.5F(2)(a), (b), (c) and (d) are met at the time the visa application was made.

27. Therefore, the applicant meets the requirements of cl.820.211(2)(a).

28. The Tribunal has considered the application and sponsorship forms and the identity documents in relation to the age of the sponsor. The Tribunal is satisfied that the applicant was sponsored by the applicant’s spouse, (referred to in this decision record as the sponsor), who had turned 18, and therefore the applicant meets the requirements of cl.820.211(2)(c).

29. The Tribunal has noted that in the Department’s decision record the delegate records that the applicant arrived in Australia as the holder of a visitor visa on 17 November 2016, and lodged the application for the partner visa on 24 January 2017. The Tribunal is satisfied that the applicant was the holder of a substantive visa at the time of application, and therefore the requirements of cl.820.211(2)(d) do not apply.

30. For all the above reasons, the Tribunal is satisfied that the applicant meets the requirements of cl.820.211(2) at the time of application.

31. The Tribunal is satisfied based on the documents before it, including the death certificate registered on 23 July 2019, confirming the sponsor died at Box Hill Hospital on 5 June 2019 and was cremated at Springvale botanical crematorium on 12 June 2019, that the sponsor is deceased. The Tribunal is satisfied that the applicant would continue to meet the requirements of cl.820.211(2) except that the sponsoring partner has died. For this reason, the applicant meets the requirements of cl.820.221(2)(a) at the time of decision.

32. Therefore the Tribunal is satisfied that the applicant meets the requirements of cl.820.211(2) and cl.820.221(2).

33. 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

34. 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) and cl.820.221(2) of Schedule 2 to the Regulations.

    Margie Bourke
    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).

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

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

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

    (ii)      any joint liabilities; and

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

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

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

    (b)the nature of the household, including:

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

    (ii)      the living arrangements of the persons; and

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

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

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

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

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

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

    (i)       the duration of the relationship; and

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

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

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

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