Zhang (Migration)

Case [2021] AATA 5509

Zhang (Migration) [2021] AATA 5509 (5 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shuqing Zhang
Mr Zheng Yao

CASE NUMBER:  1802941

HOME AFFAIRS REFERENCE(S):          BCC2017/1043847

MEMBER:Roger Maguire

DATE:5 February 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the Applicants Partner (Temporary) (Class UK) visas.

Statement made on 05 February 2021 at 12:12pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – recusal request is refused – at the time of application the applicant and sponsor had no jointly owned assets – not satisfied the relationship between the parties was genuine and continuing – relationship has ceased – claim of family violence– inconsistent evidence -decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 376
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

CASES
AZAEY v MIBP [2015] FCAFC 193
Briginshaw v Briginshaw (1938) 60 CLR 336
He v MIBP [2017] FCAFC 206
Keating v Morris [2005] QSC 243
VAAS v MIMI [2005] FCAFC 117

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 Applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

  2. The first named Applicant (the Applicant) applied for the visa on 16 March 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 (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 Dependent criteria.

  3. The delegate refused to grant the visa on the basis that the Applicant did not satisfy cl.820.211 because the delegate was not satisfied that the Applicant was the spouse or de facto partner of the Sponsor as defined under section 5F and 5 CB of the Act.

  4. The Applicants appeared before the Tribunal via MS Teams on 11 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Following the hearing, medical evidence not previously provided to the Tribunal was delivered to the Tribunal with a request for a further face to face hearing. In the light of that evidence, the Tribunal acceded to the request, and a further in person hearing was held on 17 November 2020, again with the assistance of an interpreter in the Mandarin and English languages.

  5. The Applicants were represented in relation to the review by their registered migration agent Mr Tim Madigan MARN 1573726. Ms Molenar appeared at the resumed hearing.

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

    CONSIDERATION OF CLAIMS…

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Details
AGLC
Zhang (Migration) [2021] AATA 5509
Case
[2021] AATA 5509
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a decision of the Tribunal to affirm the refusal of her Partner (Temporary) (Class UK) visa, subclass 820. The Applicant claimed to be the spouse of the Sponsor, an Australian citizen.

The primary legal issue before the Tribunal was whether the Applicant was the spouse or de facto partner of the Sponsor as defined by the *Migration Act 1958* (Cth) at the time of the visa application and at the time of the decision. This required the Tribunal to consider whether the parties were validly married, whether there was a mutual commitment to a shared life, whether the relationship was genuine and continuing, and whether they lived together.

The Tribunal found that while the parties were validly married on 10 March 2017, which satisfied the requirement for a married relationship, it was not satisfied that the relationship was genuine and continuing. This conclusion was based on several factors, including the unusual and improbable circumstances of their initial meeting and communication solely through an interpreter, and inconsistencies in the Applicant's evidence regarding financial contributions and the Sponsor's alleged requirement for her to pay all expenses. The Tribunal gave weight to these inconsistencies, finding them to be significant.

The Tribunal affirmed the decision under review, concluding that the Applicant had not satisfied the requirements for the visa.

Orders

Orders of the court

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Background

Background to the litigation

If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has before it a certificate of a marriage on 10 March 2017 naming the Applicant as bride and her Sponsor as groom. Based on this evidence, the Tribunal finds that 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) as at the date of the visa application namely 16 March 2017.Background and evidence before the Tribunal Before the Tribunal the Applicant’s evidence was that everything communicated to the Australian government and the Tribunal on her behalf was true, correct, and current except for the fact that her marriage was no longer on foot. The applicant also confirmed that everything she had told Vanessa Mary DeLuca, a Social worker who prepared a statutory declaration dated 31 August 2017 (the De Luca declaration,) and Mr Colin Kong, a Psychologist who prepared a report dated 18 September 2017 (the first Kong report) was also true and correct in every detail and contained no errors. The applicant later agreed with a suggestion by the Tribunal that it was not quite true that the Sponsor had required her to pay all expenses. This evidence was inconsistent with what she told Mr Kong, and the Tribunal gives weight to this inconsistency. On 24 September 2016, the Applicant (who could speak no English at the time) arrived in Australia as the holder of a Visitor (subclass 600) visa to visit her son (the secondary applicant in the present application) who has been at school since 2015, and has since completed high school and gave evidence that he has not worked, and remained in Australia dependent upon his mother. The secondary applicant’s student visa ceased on 15 March 2019. According to a letter from Peak Lawyers dated 12 December 2016 referred to below, (the first Peak letter) the Applicant met the Sponsor on 28 September 2016 at a restaurant in Carindale. The Sponsor spilled his beer on the applicant and offered his apologies via the Secondary applicant who spoke English and interpreted conversations between the applicant and sponsor (“the parties”). Being as neither of the parties could speak the mother tongue of the other, and all of their conversations were either conducted through the Secondary Applicant, or using a translation application, the Tribunal is concerned that this appears to be an unusual, and inherently improbable and implausible basis for the start of a relationship. The statutory declaration by Vanessa Mary De Luca (the De Luca declaration) dated 31 August 2017, elaborated on the circumstances of the initial meeting between the parties. The applicant told Ms De Luca that a conversation ensued between the Sponsor and the Secondary Applicant during which the Sponsor asked the Secondary Applicant if the Applicant was interested in going out again to a bar or similar. After that, the Sponsor and Applicant began seeing each other on dates, with the Secondary Applicant acting as interpreter. The De Luca declaration records that the Sponsor and Applicants commenced living in together in October 2016. After this, the parties set about with what appears to be some sense of urgency assembling necessary paperwork to facilitate their marriage and the present visa application.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the Applicant was the spouse or de facto partner of the Sponsor or as defined under section 5 F and 5 CB of the Act as at the date of visa application, and if so, as at the date of this decision.SPOUSE/DE FACTO (cl.820.211(2)(a), (5)(e), (6)(d), cl.820.221)Whether the parties are in a spouse or de facto relationship 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. ‘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 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.Are the parties validly married? If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has before it a certificate of a marriage on 10 March 2017 naming the Applicant as bride and her Sponsor as groom. Based on this evidence, the Tribunal finds that 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) as at the date of the visa application namely 16 March 2017.Background and evidence before the Tribunal Before the Tribunal the Applicant’s evidence was that everything communicated to the Australian government and the Tribunal on her behalf was true, correct, and current except for the fact that her marriage was no longer on foot. The applicant also confirmed that everything she had told Vanessa Mary DeLuca, a Social worker who prepared a statutory declaration dated 31 August 2017 (the De Luca declaration,) and Mr Colin Kong, a Psychologist who prepared a report dated 18 September 2017 (the first Kong report) was also true and correct in every detail and contained no errors. The applicant later agreed with a suggestion by the Tribunal that it was not quite true that the Sponsor had required her to pay all expenses. This evidence was inconsistent with what she told Mr Kong, and the Tribunal gives weight to this inconsistency.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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