Zhan (Migration)

[2022] AATA 3270

Zhan (Migration) [2022] AATA 3270 (26 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yanjie Zhan

CASE NUMBER:  1828286

HOME AFFAIRS REFERENCE(S):          BCC2017/2803491

MEMBER:Meredith Jackson

DATE:26 July 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 26 July 2022 at 8:29pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant failed to provide requested information – relationship between the applicant and sponsor has ended – applicant is not the spouse or de facto partner of the sponsor as defined at the time of this decision – decision under review affirmed   

LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 360, 363
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

CASES
Hasran v MIAC [2010] FCAFC 40
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 6 August 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3.    The delegate refused to grant the visa on the basis that the visa applicant had not provided evidence that she continues to be the spouse of an Australian citizen as defined and there was no evidence that the applicant met the requirement on any other basis.

4.    The applicant was represented in relation to the review by Mr Willem Pieter Van der Heul, her sponsor.

5.    On 7 July 2022 the Tribunal wrote to the applicant via her sponsor/representative, inviting her to provide information in support of her claims that she and her partner are in a spouse or de facto relationship. The letter stated the information, in writing, should be provided by 21 July 2022 unless an extension was granted. The invitation advised that, if the information was not provided in writing by 21 July 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. No response to the invitation was received.

1. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

background

8.    The applicant is Yanjie Zhan, born in 1963 and a citizen of China. The sponsor is Willem Pieter Van der Heul, born in 1961 in the Netherlands and an Australian citizen by grant. In the application for the visa, each party declared a previous marriage.

9.    On 24 July 2022, Mr Van der Heul wrote to the Tribunal, stating, in broad summary, that he had in fact responded to a letter from the Tribunal on 28 April 2022. He quoted himself as having stated that his wife had returned to China due to health problems in January 2019 after Medicare cancelled her Medicare card. He stated that his wife had remained in China since, due to COVID19 and was planning on coming back, when China went into COVID lockdown. To his knowledge she is now not returning to Australia and she wanted him to notify the Tribunal that the marriage is “was”.  The applicant sought a refund of his review fee. The Tribunal notes the 28 April 2022 date precedes the request for information of 7 July 2022.

Consideration of claims and evidence

1. The issue in the present case is whether the applicant is the spouse or de facto partner of the sponsor at the time of this decision.

Whether the parties are in a spouse or de facto relationship

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

2. ‘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?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal notes there is no confirmatory evidence on the Department and Tribunal files for the claim made in the visa application that the parties were married on 25 February 2017, however the Tribunal notes the delegate accepted that the parties were in a spousal or de facto relationship at the time of the application. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

Are the other requirements for a spouse relationship met?

Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

1. No contemporary financial information has been provided to the Tribunal to indicate that the parties currently share ownership of assets or joint liabilities. There is no information at the time of this decision that confirms any pooling of financial resources or sharing of day-to-day household expenses. Information on the files is confined to that provided at the time of application in 2017. In the absence of any contemporary information, the Tribunal affords the consideration no weight in favour of the applicant.

Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

1. No contemporary information concerning the nature of any household currently held by the parties has been provided to the Tribunal on review. Information on the files before the Tribunal is confined to that provided at the time of application. The Tribunal is not satisfied the parties, at the time of this decision, share responsibility for the care and support of children; that they share a household or share housework. The Tribunal affords the consideration no weight in favour of the applicant.

Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

1. The applicant has advised that the applicant lives in China and he remains in Australia. No other contemporary information or third-party endorsement of the parties’ relationship is before the Tribunal and the Tribunal has no evidence before it that indicates the parties present themselves as a married couple at the time of this decision. The information on the files before the Tribunal is confined to those aspects of the relationship claimed to have been in place at the time of the application, and that information is very brief, and names two supporting witnesses, who have not provided current statements. The Tribunal affords the consideration of the social aspects of the relationship no weight in favour of the applicant.

Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

1. The applicant has not provided contemporary information concerning the parties’ commitment to one another. The sponsor/representative wrote to the Tribunal on 24 July 2022 stating that his wife returned to China in January 2019 due to health problems and was unable to return due to COVID lockdowns in Australia and China. He stated that he had informed a Tribunal officer that his wife is not returning to Australia and declaring “our marriage is was (sic) and wanted him to “put this in writing” to the Tribunal. The Tribunal file contains a case note in which a Tribunal officer records that on 14 July 2022 the representative/sponsor advised the officer that the applicant has been in China since 2019 and does not intend to return to Australia. The Tribunal notes the representative/sponsor advised that the relationship between the applicant and himself has ended.

Conclusion

1. There is no specific contemporary information concerning the amount of time that the parties lived together, however the Tribunal is satisfied it was for the period between when the parties married in February 2017 and when Ms Zhan left for China in January 2019, when cohabitation ceased. It is not confirmed in evidence at the time of decision that the parties drew a degree of companionship or emotional support from each other as there is no contemporary information provided that would indicate any such support. The sponsor has claimed that the relationship has ended; and that Ms Zhan is not planning to return to him. The Tribunal notes this information is provided and not disputed by the applicant.

2. Taking the above factors into consideration, the Tribunal concludes the parties lived together for just under two years; they do not express an ongoing commitment to one another and consequently, it can be drawn that they do not see the relationship as long-term.

3. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision.

4. The Tribunal finds the applicant is not the spouse or de facto partner of the sponsor as defined at the time of this decision and the applicant therefore does not meet cl 820.221 of the Regulations.

5. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

decision

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

Meredith Jackson
Member

ATTACHMENT - Extract from Migration Regulations 1994

1.15A     Spouse

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

2. If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

1. The matters for subregulation (2) are:

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

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

   (ii)      any joint liabilities; and

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

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

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

   (b)the nature of the household, including:

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

   (ii)      the living arrangements of the persons; and

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

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

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

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

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

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

   (i)       the duration of the relationship; and

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

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

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

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