Zhang (Migration) - [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

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).
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.
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.
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.
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.
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.
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.
The sense of urgency surrounding the proposed marriage when one considers that a further unusual circumstance which arose on 2 November 2016, five weeks after the parties met, they attempted to marry, but were unable to do so as the sponsor was at the time otherwise lawfully married, a matter of which he must surely have been aware, and one would have thought he might have informed the applicant.
Another unusual circumstance is the recency of the applicant’s prior divorce, viewed in the context of the duration of her prior marriage. In item 61 of her visa application, the applicant declared that she had entered into a prior marriage on 24 November 2015, and that this marriage had ended a little over six months later in divorce on 3 June 2016. Had the attempt to marry on 2 November 2016, been successful, the applicant would made long term commitments to two different people within a period of less than 12 months.
On 8 November 2016 the Applicant and Sponsor jointly entered a Tenancy agreement for residential premises in a Brisbane suburb. On 9 November 2016 the Applicant and Sponsor opened a joint bank account with the ANZ bank and some household expenses were paid from this.
On 15 November 2016, the Sponsor filed an application for divorce.
On 12 December 2016, the first Peak letter was sent to the Department via Registered Mail, under instructions from the Applicant and her Sponsor seeking an extension of the Applicant’s visitor visa for three months from 23 December 2016 to enable the Applicant and Sponsor to marry. A synopsis of the contents of that letter is as follows:
a.the Applicant was a business executive from China who owned properties in China;
b.the Sponsor was a licensed contractor of independent financial means;
c.The parties met on 28 September 2016 and were “very much longing for married life again”;
d.On 15 November 2016 the Sponsor had filed for divorce but an order absolute would not be issued by 23 December 2016, the expiry date of the Applicant’s visitor visa;
e.The parties had already given Notice of Intended Marriage;
f.the parties had already engaged Peak Lawyers to make preparation for an Application and Sponsorship for Partner Visas.
At the resumed hearing, the Applicant told the Tribunal that her former husband whom she had married in November 2015 and divorced in June 2016 had been a heavy drinker and gambler who gave her none of the proceeds of the sale of their factory. The Tribunal nevertheless notes the submission that the parties were “ very much longing for married life again.”
The assertion contained in the first Peak letter, that the Sponsor was of “independent financial means” was directly contradicted by the Applicant in evidence before the Tribunal, when she told the Tribunal that the Sponsor had no assets. The Tribunal accepts the applicant’s oral evidence on this point, and considers that the assertion to the contrary in the first Peak letter was false or misleading, and this raises concerns as to the Applicant’s credibility in relation to this and all subsequent communications from both parties.
On 7 February 2017, the Family Court of Australia made a Divorce Order in respect of the Sponsor’s prior marriage, and it took effect on 8 March 2017.
The parties were married two days later on 10 March 2017, and on 13 March 2017, the Sponsor made a statutory declaration to the effect that he was committed to his marriage, and that it was genuine and was going to be everlasting. On 14 March the Applicant and Sponsor made a joint statutory declaration to similar effect.
It appears that between about 12 December and 15 March 2017, substantial documentation was assembled in support of the present application. On the latter date, Peak Lawyers again wrote to the Department of Immigration and Border Protection in a letter (the second Peak letter) received by the Department on 16 March 2017. The second Peak letter, enclosed 27 documents in total, including the present visa application, a Bank Cheque for payment of the required fees and a comprehensive suite of documents seeking to address the relevant statutory criteria for a partner visa, which included statutory declarations by Catherine Breese, and Paul Arthur Cook, a retired police officer.
In her visa application, at item 87 Australian Values Statement of her visa application where she said “I undertake to respect these values of Australian society during my stay in Australia and to obey the laws of Australia.”
At item 75 of the visa application, the Applicant placed a cross in the “No” box in response to the question “Have you ever been granted permission to work in Australia?”
At the time the applicant met the sponsor, her visa was subject to Condition 8101 – No work.
Under the Regulation 1.03, “work” is defined as follows:
work means an activity that, in Australia, normally attracts remuneration.
There is an onus on all visa holders to understand and observe their visa conditions, and the applicant’s visitor visa did not permit her to perform work which would ordinarily attract payment.
In her statutory declaration of 8 April 2020, (the April declaration) the applicant made a reference to having supported the sponsor. At paragraph 28, she stated:
28. I also supported Malcolm. He would talk to me about his job. Sometimes, I would go to his workplace and help by moving timbers and painting, mopping the floor and dusting.
It is clear that in the context of this paragraph, the word “supported” is used as a synonym for “worked for”. The use of the word “sometimes” is of course suggestive of sporadic, discontinuous, occasional or intermittent activity. In short, an on again, off again activity. It emerged under questioning from the Tribunal, that “sometimes” meant (initially at least) five days a week, normally starting at four or five in the morning and normally finishing around three in the afternoon. The applicant agreed with a suggestion by the Tribunal that she worked for the sponsor for a period of three months, until around February at which time he hired someone at $35 per day to take her place. This is important as it shows that the type of work undertaken for the sponsor was work which would normally attract remuneration as per Regulation 1.03. At this time, it cannot be doubted that the applicant was on a visitor visa, and not permitted to do work which would normally attract remuneration as per Regulation 1.03.
The totality of the Applicant’s evidence supports a finding that the applicant did work in breach of condition 8101 of her visitor visa, and had done so over an extended period immediately prior to her undertaking to obey the laws of Australia. This adds to concerns as to the Applicant’s credibility.
On 29 March 2017, the applicant applied for a Bridging visa B to enable her to travel to China to attend to what she described as urgent family matters. On 2 April 2017, the applicant travelled to China, and returned to Australia. It emerged during the applicant’s evidence that the “urgent family business” was that her sister had cancer. During this trip, the applicant also attended to the sale of her properties in China and the investment of the proceeds of sale in her son’s name.
On 31 July 2017, an incident which attracted police presence occurred at their home, following which the Applicant was hospitalised overnight, and ceased to reside with her Sponsor. The Applicant told the Tribunal that she had not seen or communicated with her husband since she separated from him on 1 August 2017. She had returned to the premises directly after her release from hospital to retrieve her belongings under Police protection. The sponsor was present at the time. The applicant had no conversation with the sponsor, as the police did the necessary talking.
At item 89 of her visa application, the Applicant gave an undertaking that she would inform the Department of any changes to her personal circumstances (including address) while her application was being considered. When the time came to honour this undertaking in early August 2017, she did not. This further adds to concerns as to the Applicant’s credibility and the worth of the applicant’s undertaking to obey Australian law.
Moreover, also at item 89 of the visa application, the Applicant gave a further undertaking that she would inform the Department if her relationship with her fiancé or partner broke down or ended in divorce, separation or death before the present visa application was decided. When the time came to honour this undertaking in early August 2017, she did not. This further adds to concerns as to the Applicant’s credibility and the worth of the applicant’s undertaking to obey Australian law.
On 17 August 2017, Bridge Brideaux Solicitors wrote to the Department advising that they acted on behalf of the Sponsor, and that the marriage to the Applicant had broken down, and that the parties had separated, and the Sponsor was not aware of her current whereabouts. There is no evidence before the Tribunal that the Sponsor had any knowledge as to the Applicants’ whereabouts on or after 1 August 2017, and the Applicants’ evidence is consistent with this.
On 18 August 2017, the Applicant was provided with a natural justice letter to provide evidence of her relationship with her Sponsor. The letter relevantly stated:
Information provided to the Department indicates that the spousal or de facto relationship upon which your application was based has ceased. This is likely to result in the refusal of your application. However before a decision is made on your Subclass 820/801 visa application, you have the opportunity to provide a response, explaining your current circumstances and the reason for the breakdown of your relationship.
Two months later, on 19 October 2017, Fenson & Co Lawyers (the Fenson letter) who were by this stage acting for the applicant, responded to the letter of 18 August 2017, but offered no clear excuse or explanation for her failure to honour her undertakings to notify the Department of her changed circumstances promptly or at all. The Tribunal gives weight to this.
The Fenson letter advised that the relationship had ceased in consequence of domestic violence, and that clause 820.221 (3) of Schedule 2 to the Migration Regulations 1994 was applicable to the effect that the Applicant would continue to meet the requirements of subclause 820.211 (2), (5) or (6) except that the relationship between the Applicant and the sponsoring partner had ceased because of family violence committed by the sponsoring partner.
Before the Tribunal, the Applicant sought to explain her failure to promptly inform the Department of her change of address and end of relationship, saying she was not quite sure of the procedure, and if she should tell immigration. The applicant is a commercially experienced woman who had closely and swiftly engaged with an immigration agent not long after her arrival in Australia, and again as required during the course of her application to this Tribunal. Indeed, she clearly knew what to do after she received the natural justice letter, and proceeded to do it quickly. Within a week of receipt of the Department’s natural justice letter, the Applicant saw both Ms DeLuca and Mr Kong on 24 August 2017, both of whom provided evidence relied upon in the Protection Order application which was eventually applied for on 13 October 2017, two and a half months after the parties had separated, and issued uncontested on 2 November 2017.
The applicant told the Tribunal that after separating from the sponsor, she and her son went to a women’s refuge for a period of time, before finding a place of their own. The applicant told the Tribunal that the Sponsor rang her son a couple of times and she told her son not to answer. The Secondary Applicant confirmed that there had been no outgoing communication from either of them to the Sponsor since 1 August 2017. It is clear that the Sponsor had no knowledge of their whereabouts, or means of contacting other than via phone.

On 19 January 2018, the delegate refused the present applications.
The Applicant applied to the Tribunal, and on 9 April 2020 submitted further additional documentation as follows:
1.    written legal submissions;
2.    a statutory declaration by the Applicant dated 8 April 2020, together with the exhibits;
3.    a Form 888 Statutory Declaration by Ms Carolyn Skully dated 12 April 2018;
4.    a Form 888 Statutory Declaration by Xi Lin dated 9 April 2020
5.    a Form 888 Statutory Declaration by Jin Wang dated 9 April 2020
6.    together with various documents previously submitted;
7.    a copy of the Protection Order dated 2 November 2017;
8.    photos of the Applicant in hospital.
At the conclusion of the initial hearing, the Tribunal agreed to allow seven days for the applicant’s migration agent time to present further submissions. The Tribunal extended this time in view of delays in the issue of a transcript of the hearing.
On 25 June 2020, the Tribunal received an 18 page submission which included the following material:
a.Post hearing submissions of the review applicant;
b.Statutory declaration of the review applicant dated 24 June 2020 attaching:
i.Exhibit “SZ-1”: Copies of the review applicant’s Commonwealth Bank Account details, dated December 2016;
ii.Exhibit “SZ-2”: Letter of Ms Alyssa. C of King of Kong Kong Dim Sims;
iii.Exhibit “SZ-3”: Statutory Declaration of Lu Chen of INAKAYA, dated 22 June 2020;
iv.Exhibit “SZ-4”: Letter of Ms Liya, Manager at King of Simmer Huang;
v.Exhibit “SZ-5”: Copies of a trace by ANZ, a screenshot of ANZ’s bank fees and a tax invoice of Education Queensland International; and
vi.Exhibit “SZ-6”: Copy of emails regarding a refund of the homestay fees of the review applicant’s son.
c.Psychologist Report of Mr Colin Kong, dated 16 June 2020; and
d.Transcript of AAT Hearing prepared by RAILS volunteer.
In consequence of the report of Mr Kong, the Tribunal considered it appropriate to allow the applicants the opportunity of a further hearing in person. This occurred on 20 November 2020, again with the assistance of an interpreter.
At the resumed hearing, the Primary Applicant confirmed that she was well enough to proceed with the hearing, and also confirmed her prior evidence. The applicant said that what she had previously told the Tribunal was the truth and that she did not lie, and that everything she had said was the truth. The applicant was asked if there was anything she wished to say that she had not told the Tribunal at the prior hearing.
The applicant said that there was a lot of omission on the interpreter’s part, and what the interpreter said was not consistent with the answers she had given. The Tribunal asked the applicant to tell the Tribunal what should have been said. The applicant said that what she had been through was real, the marriage was real, and the domestic violence was real. The applicant said that she could not remember specific errors regarding interpretation, but she knew during the hearing that there had been mistakes by the interpreter, and that the answers provided to the Tribunal were not to the questions that the Tribunal had been asking.
The Tribunal asked the applicant’s representative if the agents had been through the transcript with the applicant and was told by Ms Molenar that she had not been through the transcript with her client, and had not read it to her in Mandarin because of the expense of preparation of a translated transcript, but had discussed how the applicant felt regarding the previous interpreter.
The secondary Applicant, who appeared fluent in English, gave evidence that he had translated a recording of the hearing and the transcript which he had prepared and he had been through it with his mother. The secondary applicant said that the primary applicant felt that the Tribunal’s questions had been misinterpreted to some degree by means mainly of omission which led her to answer in a way other than what the Tribunal would have expected, leading the Tribunal to ask the applicant to please answer questions and stop avoiding questions. The secondary applicant said that the applicant had not been avoiding questions, but rather answering the questions which the interpreter had misinterpreted, and that this may have given the Tribunal the wrong impression regarding the applicant’s responses to questions put to her as translated.
The agent told the Tribunal that all evidence had been provided in the statutory declarations before the Tribunal, and that she was not aware that there were large numbers of specific errors in the transcript.
The Tribunal allowed the applicants a short adjournment to enable them to review the transcript of the earlier hearing and raise specific areas of concern regarding translation or statutory issues.
Following the adjournment, the secondary applicant detailed areas of concern in the transcript of the prior hearing, and referred to a number of questions which he said had been mistranslated. These included a question regarding conduct around the start of April which led to a significant change in the sponsor’s behaviour, and the applicant had responded regarding when they were married, and the Tribunal said it was not asking about the registration of the marriage. It was said that the interpreter did not translate correctly, and had asked how the applicant registered her marriage.
The secondary applicant said that the Tribunal’s question as to the date of opening of the Applicant’s original bank account had been mistranslated by not referring to the applicant’s personal bank account and was therefore misunderstood, and answered by reference to the joint account, and that there was a further error when the question was put a second time at which point the secondary applicant had interjected that his mother did have a separate bank account.
The secondary applicant also said that a question regarding how long the applicant had been working at Hong Kong Dim Sum restaurant was translated as how frequently she had been doing this.
When asked what led her to believe that the restaurants she had worked at had been operating illegally, the applicant said that the front door was always shut, and was never opened, there was no signage describing the type of business, and in terms of recruitment process “they just called us saying we need your service”. She was asked to go in through the back door, products were frozen and being sold on-line and delivered. The secondary applicant added that the businesses did have legitimate Australian business numbers, and were selling in bulk and did not have retailing customers and always had the front door shut which made the primary applicant think they were operating illegally. The interpreter had also made an error regarding the applicant’s knowledge of the names of restaurants, omitting to say that she only knew the Chinese names, not the English.
The applicant told the Tribunal that she owned a factory in a company with her husband, with whom she had been a business partner prior to their marriage, and its subsequent breakdown. The factory was sold in consequence of the divorce. The applicant said that when they divorced the factory was sold, and because of her husband’s excessive drinking and gambling she did not get any of the proceeds at all. The applicant initially said that her former husband used to gamble tens of millions, but then changed this to say that he used to gamble up to ten million yuan.
The applicant told the Tribunal that in addition to her interest in the factory, she also had a commercial property, a residential property and a car in her name only.
The applicant was asked if she sold these two properties and invested the proceeds, and said that she put the money in her son’s Chinese bank account. One property was sold for 1.7 million and the other for 500,000 totalling about $400,000 AUD. She said her son was scammed by someone and sent to a psychiatric facility.
The secondary applicant said that the interpreter omitted the word “current” from the question about balance which caused the Applicant to incorrectly answer a question about what was in her account in 2017.
The secondary applicant also referred to the applicant’s work for the sponsor. In particular the applicant had been asked if the work period was from November 2016 until when they split up. The secondary applicant said that the translator translated frequency rather than duration. The applicant clarified to the Tribunal that she had started work for the sponsor in November 2016 until February 2017, and that she did not go there every day, but had worked as needed, sometimes up to five days per week depending on work demands and her health.
The secondary applicant said that there was also an error in the tense of a question pertaining to medical examinations.
The Tribunal has considered the evidence at the resumed hearing, and accepts the explanations offered at the second hearing regarding the interpretational issues.
The Tribunal has considered this material. For the reasons which follow, the Tribunal rejects the request for recusal.
At the conclusion of the initial hearing, the applicant’s migration agent raised concerns that the use of MS Teams video technology might have impeded the Tribunal’s ability to observe the applicant’s demeanour, and lead it to make an adverse finding as to her credibility, and a request for a face to face hearing was made. At the same time, the agent assured the Tribunal that no evidence had been omitted from the applicant’s statutory declarations. At this stage, the Tribunal could see little utility in a further hearing.
At no time prior to the initial hearing date did the applicants raise any issue other than internet connectivity regarding the proposed mode of hearing. In fact, through their agent, they consented to it.
On 18 May 2020, the applicants’ representative was contacted by an officer of the Tribunal with regard to arrangements to conduct the hearing by video using a programme known as Microsoft Teams. No objection was raised by the applicants to proceeding in this fashion, and on 20 May 2020, an invitation was sent inviting them to attend at a hearing on 11 June. On 25 May 2020, the applicants were forwarded a 19 page document outlining the use of Microsoft Teams.
On 26 May 2020, the Migration agent sent a Response to hearing invitation on behalf of the applicants. In the body of that document, the “No” box was hand ticked in response to a question asked in Part 2 B:
Part 2 – Participating in the hearing
…
B. Is there any issue that may affect your ability, or that of any other person participating, to take part in the hearing, e.g. a health problem of disability?
(a) A question in Part 2 C was likewise ticked “Yes” and explained as follows:
C. Do you believe that you or another person will experience difficulty participating in the hearing by telephone or videoconference or the hearing cannot be conducted by telephone or videoconference?
A: Yes (If so, you must explain why below
Sometimes my internet connection at home is not very good.
Subsequent to this, the applicants’ migration agent sent correspondence to the Tribunal on 4 June 2020, and 10 June 2020, and no further objection was made as to the proposed mode of hearing.
The Tribunal notes that there was no significant internet connectivity issue raised during the course of the hearing. The Tribunal did not perceive there to be any difficulties arising out of the use of MS Teams for the hearing.
On 25 June 2020, in an 18 page submission, the migration agent made a recusal request, and complained of the gender of the member who constituted the Tribunal, and asserted that the hearing conducted via MS Teams was not done in accordance with s. 360 of the Act. In support of this request, the applicant filed a further statutory declaration of the review applicant dated 24 June 2020 (“the June declaration”) attaching:
a.Exhibit “SZ-1”: Copies of the review applicant’s Commonwealth Bank Account details, dated December 2016;
b.Exhibit “SZ-2”: Letter of Ms Alyssa. C of King of Hong Kong Dim Sims;
c.Exhibit “SZ-3”: Statutory Declaration of Lu Chen of INAKAYA, dated 22 June 2020;
d.Exhibit “SZ-4”: Letter of Ms Liya, Manager at King of Simmer Huang;
e.Exhibit “SZ-5”: Copies of a trace by ANZ, a screenshot of ANZ’s bank fees and a tax invoice of Education Queensland International; and
f.Exhibit “SZ-6”: Copy of emails regarding a refund of the homestay fees of the review applicant’s son.
Psychologist Report of Mr Colin Kong, dated 16 June 2020; and
Transcript of AAT Hearing prepared by RAILS volunteer.
The Tribunal has reviewed this material, together with the transcript of the hearing and considered the recusal request.
In summary the points made by the migration agent were:
(a)    The Tribunal should restrict itself to the findings in the decision under review in accordance with the President’s direction, i.e. the finding that there was no spousal relationship. The Tribunal accepts this submission.
(b)    In the light of the letter of 17 June 2020 and the manner in which the Tribunal conducted the hearing “a fair minded lay observer might reasonably apprehend that the [Tribunal] might not bring an open mind to the resolution of the question the Tribunal is required to decide.” In consequence, it was submitted:
a.that the Tribunal Member should recuse himself from this review and the Tribunal should be reconstituted to a female member in view of the sexual violence and the physical violence to which the applicant had been subjected;
b.alternatively, the Tribunal the Tribunal should find in favour of the applicant; and
c.if the Tribunal was unable to find in favour of the applicant, a further in person hearing must be held.
(c)     The submission continued, that in view of the sexual and physical violence to which the applicant had been subjected a female member would be more appropriate to deal with her claims. It was said that this approach was in line with the Tribunal’s Guidelines on Gender.
(d)    The submission further continued that if the Tribunal Member decided not to recuse himself, the Tribunal should find in favour of the applicant. If contrary to the submissions, if the Tribunal could not find in favour of the applicant, a further in person hearing should be held to allow the applicant to present “ all her evidence with regard to this review application.” (The Further hearing submission)
(e)    The hearing using Microsoft Teams was not conducted in a manner consistent with s. 360 of the Act, as the applicant was not provided with a “reasonable opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
(f)   The Tribunal has had regard for the report of Mr Kong dated 16 June 2020 (the second Kong report). This report disclosed that the applicant had 39 sessions with Mr Kong since August 2017, and was in fact still receiving counselling at and after the date of hearing. These were matters not placed before the Tribunal at the initial hearing, nor were they the subject of particular emphasis in the written submissions filed on behalf of the applicants. The Tribunal accepted that having regard to this evidence it was desirable that a face to face hearing be convened at the earliest opportunity which was 20 November 2020.
(g)    It was submitted that the Tribunal fell into jurisdictional error when it asked the applicant when she first sought legal advice regarding her visa. This question did not go to the substance of the advice, and went only to date. This is not a proper subject for a claim of privilege, and discloses no jurisdictional error, as it can hardly be regarded as material to the ultimate outcome. Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (15 August 2018) Shrestha v Minister for Immigration and Border Protection; Ghimire v Minister for Immigration and Border Protection; Acharya v Minister for Immigration and Border Protection [2018] HCA 35 (15 August 2018)
The Tribunal notes that at paragraph 4 of the June declaration the applicant said:
“4. The Member would say things like ‘answer in yes or no’. I felt like I couldn’t explain further even though I wanted to. I felt like the Member didn’t believe what I was saying at the hearing. His attitude was harsh to me. He would say things like ‘you don’t have to explain.’”
The Tribunal has reviewed the transcript of the hearing. The Tribunal notes that during introductory remarks, the Tribunal stated:
I expect direct answers to direct questions. If a question admits of a yes or no answer, say “yes” or “no”. By all means elaborate after the initial response, as I do want to hear what you have to say.
Later, during the hearing, the following exchange occurred
MEMBER: It was only for about three months that you worked with him, is that right?
INTERPRETER: Yes.
MEMBER: Then, you stopped in February? The answer is yes or no. You stopped in February, is that right?
INTERPRETER: Yes.
There were no other episodes when the Tribunal uttered the phrase “yes or no”, and so much is clear not only from the official Tribunal transcript, but also from the transcript submitted on behalf of the applicants. The same transcripts also show that at no time during the hearing did the Tribunal utter the words: ‘you don’t have to explain.’ The declared assertion to the contrary is untrue. This adds to the Tribunal’s concerns as to the applicant’s credibility.
Recusal
A request for recusal[1] warrants close and careful consideration and warrants proceeding “with great care and circumspection”: per Fennelly J in Kenny v Trinity College [2008] 2 I.R. 102 at 102. In instances where a Tribunal does not meet the bias test, to proceed to a determination is jurisdictional error. Likewise, where no bias exists, an inappropriate recusal amounts to a refusal or failure to act in breach of the oath or affirmation taken on appointment. Unwarranted failure to exercise jurisdiction is also jurisdictional error[2]. It is just as wrong to yield to a tenuous or frivolous objection, as it is to ignore an objection of substance[3]. As has been noted by Sir Stephen Sedley[4], recusal law provides “a field of opportunity for manipulation.” Inappropriate recusals may encourage “fishing expeditions” that harass judges to the detriment of judicial independence and the administration of justice.[5] Forum shopping should never be encouraged.
[1] In considering this review, the Tribunal has drawn from the article “Inappropriate recusals” by Abimbola Olowfoyeku published in Law Quarterly Review, 2016. (Olowfoyeku)
[2] Craig v South Australia (1995) 184 CLR 163 at [11].
[3] Locabail (UK) Ltd v Bayfield Properties Ltd [2000] Q.B. 451 at [25]
[4] S. Sedley, Foreword to G. Hammond (ed.), Judicial Recusals: Principles, Process and Problems (Oxford: Hart Publishing, 2009), at p.ix
[5] Olowfoyeku at page 3.
The mere fact that decisionmakers are the subject of criticism by a party does not compel the decisionmaker to recuse themselves for bias. In Triodos Bank NV v Dobbs, [2005 ] EWCA Civ 468; [2006] C.P. Rep.1 at [8] Chadwick L.J. said[6]:
[6] Triodos Bank NV v Dobbs [2005] EWCA Civ 468; [2006] C.P. Rep.1 at [8]
The reason is this. If judges were to recuse themselves whenever a litigant… criticised them… We would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that the they did not want to hear their cases.
Mason J (as his honour then was) captured the issues and tensions of a recusal application when he said in Re JRL; Ex p. CJL (1986) 161 CLR 342 [352][7]
[7]Re JRL; Ex p. CJL (1986) 161 CLR 342 [352]
"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

In Keating v Morris [2005] QSC 243, Moynihan J said at 47[8]:
[8] Keating v Morris[2005] QSC 243, Moynihan J [47]
Apprehended bias is a serious allegation to be made in respect of an enquirer and the considerations by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336[9] are relevant. The application of that principle means that the gravity of the issue necessarily is reflected in the weight of the proof required to establish the facts fanning the conclusion. See also R v Lusink; ex parte Shaw (1980) 32 ALR 47 at 50[10], where Gibbs CJ spoke of the need that apprehended bias be “firmly established” are: citing R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 – 554 quoted in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR at 262.
[9] Briginshaw v Briginshaw (1938) 60 CLR 336
[10] R v Lusink; ex parte Shaw (1980) 32 ALR 47 at 50
In AZAEY v MIBP [2015] FCAFC 193, the Full Federal Court (North, Besanko and Flick JJ) considered the manner in which a hearing had been conducted. Their honours said at [23][11]:
[11] AZAEY v MIBP [2015] FCAFC 193 [23]
Any assessment is necessarily confined to inferences that can be drawn from the transcript and the audio recording of the hearing. The onus, it is to be recalled, rested upon the Applicant to make out her claims to a reasonable apprehension of bias; VAAS v MIMI [2005] FCAFC 117 at [45][12].
[12] VAAS v MIMI [2005] FCAFC 117 at [45]
In Keating v Morris [2005] QSC 243, Moynihan J said at [35]-[37] in this context[13]:
[13] Keating v Morris [2005] QSC 243 at [35]- [37]
35.The court is concerned with the fairness of the treatment of the applicants: Re JRL Ex parte CJL (1986) 161 CLR 342 at 350. The governing consideration is that justice is, and is seen to be done with the decision maker reasonably open to persuasion: Carruthers v Connolly [1998] 1 Qd R 339 at 356.
36. It is of ‘fundamental importance that parties and the general public have full confidence in the fairness of decisions and the impartiality of decision makers to whom the rules of procedural fairness apply. Condemnation without a proper hearing or by an apparently biased tribunal is unacceptable: exoneration by such a tribunal may be worthless: Carruthers v Connolly [1998] 1 Qd R 339 at 371. See also Webb v The Queen (1993) 181 CLR 41 at 50-52, 58.
…
37. … The test is an objective one and has been variously expressed in the many cases which have canvassed its content and application to particular circumstances: The subjective apprehension by a party is irrelevant: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 350. Livesy v NSW Bar Association (1983) 151 CLR 288 at 293-4; Re JRL: Ex parte CJL (1986) 161 CLR at 342, 349, 351, 352, 355, 359, 368; Vakauta v Kelly (1989) 167 CLR 568; (1989) 167 CLR 568; Webb v The Queen (1993) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488 at 492-493; Re Colina & Anor; ex parte Torney (1999) 200 CLR 386 at 397; R v Masters (1992) 26 NSWLR 450 at 471; Glynn vi ICAC (1990) 20 ALD 214 at 219.
In Carruthers v Connolly, Thomas J observed with respect to the analogous role of a Commission of Inquiry[14],
[14] Carruthers v Connolly
It must be remembered that the cut and thrust of forensic work may produce tensions, and that denigratory comments to counsel, sarcasm, and hard words from time to time may not be amiss. It is also to be remembered that although there are trappings of court procedure, the investigation is essentially inquisitorial, and that the Commissioners are expected to play a far more active role in ascertaining the facts than occurs in a court. A wide range of expression and conduct must be permitted for a commissioner, and one should not interpret robust conduct as a badge of bias.
…
The commissioner has an inquisitorial function while the role of a judge is essentially to adjudge an adversarial contest. But the expectation that the person exercising the power will bring an impartial and unprejudiced mind to the resolution of the question is not to be diluted. Condemnation by a biased tribunal is an unacceptable abuse, just as exoneration by a biased tribunal may be considered worthless.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6][15], Gleeson CJ, McHugh, Gummow and Hayne JJ said:
[15] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]
… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
Nevertheless, decision makers are not required to approach their task with a blank mind, but they are required to approach it with one which is open to persuasion. So much is clear from the words of Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-2 [71]-[72][16]:
[16] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-2 [71]-[72]
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. … Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
The Tribunal has also considered Isbester v Knox City Council[17], Kiefel, Bell, Keane and Nettle JJ said:
[17] [2015) HCA 20; (2015) 89 ALJR 609 at 614 [22].
It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.
In addition, the Tribunal has had regard for the decision of the High Court of Australia in Re Refugee Review Tribunal ex parte H (2000) [2001] HCA 28 where the Court, constituted by Gleeson CJ, Gaudron and Gummow JJ delivered a joint judgment and said at 27-34[18]:
[18] Re Refugee Review Tribunal ex parte H (2000) [2001] HCA 28 at [27]-[34]
27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
28.Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
29.Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former, are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
30.Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
31.Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
32.In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.
33.Although, in our view, the prosecutors have made good their claim of apprehended bias, we would not grant relief under s 75(v) of the Constitution simply on that account. It is now established that, in the case of a breach of the rules of natural justice, relief under s 75(v) of the Constitution is discretionary[8]. Where, as here, there is a final determination by a superior court, that the decision in question was not affected by actual bias, discretionary considerations necessarily arise. However, in this case, we would grant relief as sought.
34.Where, as in the proceedings before the Tribunal, the central issue is credibility, the decision-maker's assessment will often depend upon the demeanour of the witnesses and the manner in which they give their evidence. It cannot be assumed that the prosecutors would have received an unfavourable assessment of their credibility if they had had the opportunity to present their claims without repeated interruptions from the Tribunal affirming its lack of belief in their claims. Nor can it be assumed that they could not have given further details of events which might have supported their applications. In particular, it should be noted that the male prosecutor was interrupted when he attempted to give an account of a stoning episode in which, presumably, his home was stoned. These considerations may not, of themselves, constitute a failure to provide the prosecutors with an opportunity to present their claims, but they constitute good reason why relief should not be refused on discretionary grounds.
The Tribunal has also considered the decision of the Full Court of the Supreme Court of Tasmania in R v Carter; Ex parte Gray[19], where Cox, Underwood and Slicer JJ, in a joint judgement observed at paragraph 24, that the standard of proof required to prove bias, whether actual or apprehended, is the civil standard as described by Dixon J ( as his honour then was in Briginshaw v Briginshaw[20], where his honour said “The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.”
[19] [1991] TASSC 97.
[20] [1938] HCA 34; (1938) 60 CLR 336 t 361-2.
The Tribunal has also considered the judgment of Gibbs ACJ (with whom Stephen, Murphy, and Wilson JJ agreed, in R v Lusink; Ex parte Shaw [21] when it considered the circumstances where a judge of the Family Court had declined to disqualify herself. In the course of his judgment, Gibbs ACJ said, in discussing Watson (supra)[22]:
[21] (1981) 55 ALJR 12.
[22] R v Lusink; Ex parte Shaw (1981) 55 ALJR 12 at [14]
“Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be 'firmly established' that such a suspicion may reasonably be engendered in the minds of the parties or the public..." (at p14).
The fair minded observer is informed on all matters that are relevant, and the observer’s approach must not be confused with that of a party[23]. In considering the concept of a fair-minded lay observer, knowledge of all the circumstances of the case must be attributed to that individual; Livesy v New South Wales Bar Association[24]. He or she is taken to be reasonable[25], does not make snap judgements[26], knows commonplace things, and is not a complacent nor unduly sensitive or suspicious[27]. Where the decision-making is a judicial officer the fair-minded observer will have regard to the fact that a judicial officers training, tradition and oath or affirmation equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial[28].
[23] Per Lord Hope of Craighead in Helow v Home Secretary [2008] 1 WLR 2416 at 2418 [2]-[3].
[24] (1983) 151 CLR 288 at 293 – 4.
[25] Johnson v Johnson (2000) CLR 488 at 494 [12].
[26] Ibid at 494 [14].
[27] Ibid at 509 [53].
[28] Ibid at 493 citing Vakauta v Kelly ((1988) 13 NSWLR 502 at 527, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584-5.
Members of this Tribunal, by reason of their statutory role have to, and are permitted to take a more interventionist role in the conduct of hearings[29].
[29] R v Carter; ex parte Gray (1991) 14 Tas R 247 (FC) at 260-263 [29]-34; Carruthers v Connolly [1998] 1 Qd R 339 at 358; Keating v Morris [2005] QSC 243 at [46].
In this Tribunal, once a case has been constituted to a member, it is that member’s statutory responsibility to carry out their oath or affirmation to “faithfully and impartially perform the duties of that office”[30].
[30] Oath or Affirmation of Office, Schedule 2, s. 10B Administrative Appeals Tribunal Act 1975. (The AAT Act).
If a member concludes, having considered the applicable test for recusal that he or she is unable to discharge the duty “impartially” it is their faithful duty to recuse themselves. In the absence of such a finding, it is the member’s statutory duty to discharge their function.
The authorities make plain that a request for recusal should never be framed as an alternative to a favourable finding. A favourable finding from a biased Tribunal is just as bad in law as an unfavourable finding. Couched as it was, the request was misconceived.
Where a member has been constituted to conduct a review, there is no statutory power in that member (unless the member holds the appropriate delegation, and this presiding member does not) to re-constitute it to another member. Re-constitution is dealt with in s. 19D of the AAT Act.
In case No. 1419015 decided on 29 January 2016 the Tribunal’s then President, Kerr J, dealt with, and rejected, an application for reconstitution of the Tribunal under s 19D(2)(a)(iii). That case concerned an applicant for a Partner visa where the applicant asserted that the relationship had broken down following domestic violence. The day after the hearing, the applicant attempted suicide and was hospitalised. The applicant asserted that the presiding Senior member was “unsympathetic” and lacked sensitivity during the hearing. The application was supported by a letter from a psychiatrist which the president did not doubt, and which asserted that the applicant’s
experience of the process being confrontational as well as the possibility she might be deported - could act as ongoing triggers for low mood and possible reactivation of suicidal ideation.

100. The learned President said
It has not been suggested by Parish Patience that Senior Member Raif was told anything by Mr Jones about the Applicant’s fragile mental state. However, even had the Senior Member been so advised, it would have remained her duty, with sensitivity and respect for the Applicant’s dignity, to test, even robustly, the Applicant’s asserted reasons to be entitled to the visa she sought notwithstanding those reasons were linked to claims of domestic violence.
To the extent that I have been provided with Dr Bayes’ opinion as support for this application, the Applicant’s mental health and subsequent suicide attempt in those circumstances cannot be accepted as a lawful reason for the President to reconstitute the Tribunal.

101. In the course of his reasons, the President cautioned against taking a course which would result in member shopping, and that such cases were inherently stressful.
102. Moreover, in Snow and Secretary Department of Social Security [2020] AATA 417, Senior Member Dr Manetta said:
I note that the apparent bias test requires the Tribunal to evaluate carefully its own conduct. Where an objective observer would perceive that a Tribunal member has given the impression, however inadvertently, that he or she may not decide the matter fairly, the member may properly disqualify himself or herself and, in fact, ought to do so. However, it is also the case that unless a member is so satisfied, he or she should not disqualify himself or herself simply to appease a party, so to speak, or to take an easy course. That is also a disservice to the impartial administration of justice. There are cases where the matter is, so to speak, “line ball” and a member may act on those occasions out of an abundance of caution. But leaving those cases aside, a member must be honest and clear in his or her assessment of the objective circumstances. I do not see anything in my conduct of this matter that would suggest I should recuse myself for apparent bias. As I do not perceive a proper basis that I should recuse myself, I see no basis on which I should exercise the power that I may technically have as a delegate to reconstitute the Tribunal.

103. A number of the issues raised at and post hearing do not sit comfortably with the documents delivered to the Tribunal during the weeks prior to the hearing. Those documents consented to, and raised no concerns about the hearing proceeding via use of MS Teams. They raised no concerns, or request as to the gender of the Member constituted to determine the matter. Whilst the issue of vulnerability of the Applicant was raised orally at hearing by the agent, at that time, it was unsupported by any recent evidence. At no time prior to the hearing were concerns raised as to the vulnerability of either of the applicants. Had these issues been raised in a timely manner as was the responsibility of the migration agent, and the expectation of the Tribunal as provided in the various practice directions, no doubt any necessary steps would have been taken to accommodate any reasonable request.
104. At the conclusion of the hearing, the migration agent requested the opportunity of providing further submissions. The Tribunal agreed to this and allowed until 7 days after the hearing for this to happen, i.e. 18 June 2020. Immediately following the hearing, the applicants’ migration agent requested a copy of the Hearing audio records. When it emerged that there would be delays in the delivery of these records, the Tribunal acting of its own volition, enlarged the time for delivery of submissions until 25 June 2020.

105. Following the initial hearing the Tribunal had concerns that the primary applicant had stated in evidence before the Tribunal that she had worked for enterprises which she thought “might be illegal”. In consequence, the Tribunal wrote to the applicant on 17 June 2020 requesting further information in this regard. This letter is discussed further below.
106. The General Practice Direction relevantly states:
2.4 Section 2A of the AAT Act requires that, in carrying out our functions, we must pursue the objective of providing a mechanism of review that:
(a) is accessible;
(b) is fair, just, economical, informal and quick;
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the AAT.
2.5 You and the decision-maker must use your best endeavours to assist us to fulfil this objective. This is a legislative requirement in all Divisions other than the Migration and Refugee Division: subsection 33(1AB) of the AAT Act. It is our expectation of you in the Migration and Refugee Division.

107. The Practice Direction Constituting the Tribunal issued on 14 July 2015 with effect from 20 July 2015 relevantly states:
Specific matters relating to constituting the Tribunal in the Migration and Refugee Division
3.10 In a proceeding relating to a protection visa or that involves gender issues, the President or his or her delegate may take into account any recommendations or suggestions in relation to the gender of the member(s) who should constitute the Tribunal made by:
(a) an AAT member or staff member; or
(b) you.
3.11 You should inform us at the earliest opportunity of any factors relating to the proceeding that would make it appropriate that a member of a particular gender conduct the review. [Tribunal emphasis]

108. Relevant considerations in constituting the Tribunal include paragraph 4.1(i)
whether there are any factors in relation to the proceeding that would make it appropriate for a member of a particular gender to conduct the review;

109. This is reinforced in the Migration and Refugee Practice Direction issued by the President on 1 August 2018 with effect from 2 August 2018, Gender related issues are specifically mentioned at paragraph 2.3 which provides
Gender-related issues
2.3 You should inform us at the earliest opportunity of any factors relating to the application that would make it appropriate for a member of a particular gender to conduct the review.

110. The requirement for the early information of the Tribunal is again reinforced in the Guidelines on Gender which state:
Constitution of the Tribunal
10. An applicant or an applicant’s representative should inform the tribunal at the earliest opportunity of any factors relating to the application that would make it appropriate that a Member of a particular gender conduct the review. The early identification of these issues will enable the tribunal to give consideration to them at the time the matter is allocated to a Member to conduct the review.
….
13. If a gender-related claim or a request for a Member of a particular gender is made subsequent to constitution, we will give consideration, where appropriate

111. In determining whether an applicant is a vulnerable person the central issue for consideration is whether a person’s capacity to participate in the review process is impaired or limited, taking into account the entirety of the person’s circumstances. The Tribunal does not consider that this was the case in this instance.
112. Had the issue been raised in a timely fashion no doubt it would have been given due consideration.
113. The Tribunal has reviewed the transcripts of both hearings. It is clear that there were some crossed wires at the initial hearing, which arose from mistranslation. Those issues were ventilated, clarified and corrected at the subsequent hearing.
114. The statutory declaration of the primary applicant complaining of the conduct of the initial hearing is not relevant to the legal test which turns on the apprehension of an impartial observer, and this description excludes parties and their representatives.
115. The Tribunal is not satisfied that proper grounds for a recusal request are made out, and the request is refused.
S. 376 Certificate
116. On 21 August 2020, the Department issued a Certificate under s. 376 of the Act in respect of certain material the disclosure of which might lead to the disclosure of a confidential source of information.
117. The Tribunal forwarded this certificate to the applicants and invited comment as to its validity, and a submission was received, asserting that the certificate was invalid, and requesting, among other things, better particulars of the information and the informant.
118. The Tribunal has considered the information to which the certificate pertains, as well as the response provided in regard to it, which the Tribunal generally accepts. The Tribunal notes that the information was provided anonymously, is not verified by oath or affirmation, and is not able to be tested or verified by the Tribunal or the applicants. There is always a possibility that the source of such information may be a maliciously motivated or deranged individual. Having regard to these factors, the Tribunal gives the material the subject of the certificate no weight.
119. The Tribunal now turns to a consideration of the substantive issues in this application for review.
Regulation 1.15A
120. Regulation 1.15A compels the Tribunal to consider all of the circumstances of the relationship, including the matters set out in sub regulation (3).
121. In the April declaration the Applicant declared that “My life in China was good. I lived an upper-middle class life. I had property there and before I retired I was a manager in charge of sales for a factory business.” This statement represented that she had been merely the manager (and thus implicitly an employee of a third party) of the business. At the initial hearing the applicant gave a different version of her status in relation to the factory when she told the Tribunal that she was the owner of the business and the premises from which it operated. The Applicant made no mention of a co-owner. At the resumed hearing, the Applicant gave a further different version of her status in relation to the factory when she said that she had owned it together with her former husband. It is of concern to the Tribunal that the Applicant has provided three different versions of her status in relation to the factory. Whilst the applicant’s statement in her statutory declaration contained an element of truth, it was presented in such a way as to not provide a true picture of circumstances. This is of concern to the Tribunal, as it raises a question as to the extent to which the rest of the applicant’s evidence is comprised of misleading partial truths.
122. Also in the April declaration at paragraph 43, the applicant declared that:
When my son came to Australia to study, I sold my property in China and the money went to my son’s bank account for him to use in Australia.

123. This statement suggests that the applicant sold her property in China at or about the time that her son came to study in Australia, that is 2015, and transferred all of the proceeds to her son’s account (by inference in Australia) for him to use in Australia. The applicant’s evidence before the Tribunal was not consistent with her statutory declaration. The applicant told the Tribunal that she sold her properties during her return trip to China in April 2017 (by which time her son had been in Australia for two years studying) and had invested the proceeds of the sales of her property in China in her son’s name in China. The Tribunal gives weight to this inconsistency.
124. Evidence given by the Applicant contradicted the assertion made in the first Peak letter where it was stated that the sponsor was “of independent financial means”. Not only did the applicant contradict this assertion, there was no evidence placed before the Tribunal which supported it. The assertion as to the sponsor’s financial circumstances does not appear to be an instance of mere imprecision or mild exaggeration. The Tribunal finds that the assertion as to the sponsor’s financial independence in the letter referred to was false. The Tribunal is concerned that the applicant’s very first communication with the Department regarding the present visa application was based in part on information which was false or misleading, and the Tribunal gives weight to this.
125. In the April declaration, the applicant declared at paragraph 9, “I started working a year after I arrived in Australia. I worked in a sushi shop.” This statutory declaration left the Tribunal with the impression that the applicant’s first and only work (disregarding the work she did for her sponsor) after coming to Australia was in a Sushi shop. The April declaration did not reveal the applicant’s employment over a near two year period in 5 Chinese restaurants making dumplings. The Tribunal considers this non-revelation to be significant and concerning.
126. In evidence at the initial hearing, the Applicant told the Tribunal that she had “heard” the Chinese restaurants were not licensed and, “we just went in the back door, but I realised it might not be legal so I stopped working there.” The Applicant was unable to answer when asked to provide details regarding these restaurants saying that the names did not readily translate into English. The Applicant said that she worked 8 or 9 hours per day for a 4 day week earning $12 per hour, and being paid in cash. In her statutory declaration of 24 June 2020, the applicant declared that this work had occurred over a period between 3 July 2017 and 19 May 2019, and that she did not receive any employment contracts, payslips or superannuation details for any of her jobs.
127. Given this particular Applicant’s apparent intelligence and commercial experience and awareness, the Tribunal considers it highly unlikely that she did not have a fair idea that those activities were unlawful, and this would explain her initial failure to disclose it. The Tribunal is concerned that the evidence shows that the Applicant worked unlawfully when she was not entitled to work, and that even she was entitled to work, she does not appear to have done so in lawful fashion. The Tribunal is therefore concerned that the Applicant has during her time in Australia, and since giving the undertaking to obey Australian law, participated in unlawful activity. Whilst the Tribunal can accept a degree of imprecision over time frames, the fact remains that when the applicant did commence work, it was not in “a Sushi place”. The applicant does not appear to have worked at “a Sushi place” until about eighteen months after her arrival in Australia. To the extent that the applicant told the truth regarding this issue in the April declaration, she told a partial truth which gave a very misleading picture of her work history. The Tribunal gives weight to this.
128. The Tribunal is also concerned that in her statutory declarations and evidence before the Tribunal, the applicant has departed from, or downplayed the statements which she made to the Social worker and Psychologist whom she consulted prior to seeking the Protection Order. In particular, she has sought to substantially confine the alleged egregious conduct by the Sponsor to the period after their marriage, (and therefore after the time of lodgement of the visa application) except for one incident in December 2016. The statements made to the Social worker and Psychologist do not appear to have been confined in this way, and are consistent in this regard. The Tribunal considers that these statements provide a better indication of where the truth lies rather than any statements produced in consultation with lawyers, which must be viewed with caution because the latter are likely to have been filtered with a view to a legal objective, even though there is no suggestion of dishonesty[31]. The Tribunal gives weight to the statements made to the Social worker and the Psychologist as to the duration of the egregious conduct. However, the Tribunal is also concerned that from the very first communication with the Department via the first Peak letter, the applicant’s statements appear to have varied depending upon her immediate audience and objective.
[31] “Weighing up Different Forms of Evidence – A View from the Court” Justice Mark Weinberg – Victorian Court of Appeal. Paper delivered at the Administrative Appeals Tribunal, 9 September 2020.
129. The Tribunal is unable to regard the Applicant as a credible witness, and gives little weight to her evidence for the reasons above and below.
Are other requirements for a spouse relationship met?
Regulation 1.15A(3)(a), (b), (c) and (d), and Any other circumstances of the relationship under r.1.15A(2),
Regulation 1.15A(3)(a)
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.
130. In his Form 40 SP the Sponsor, stated at item 10 that he and his partner began a relationship one month after they met. At item 11, he stated that they made the decision to marry on 25 October 2016. This was consistent with the applicant’s statement at item 58 in her application.
131. On 8 November 2016 the Applicant and Sponsor jointly entered a Tenancy agreement for residential premises in a Brisbane suburb.
132. On 9 November 2016 the Applicant and Sponsor opened a joint bank account with the ANZ bank and some household expenses were paid from this.
133. On 15 November 2016, the Sponsor filed an application for divorce.
134. On 12 December 2016 Peak Lawyers wrote to the Department via Registered Mail, under instructions from the Applicant and her Sponsor seeking an extension of the Applicant’s visitor visa for three months from 23 December 2016 to enable the Applicant and Sponsor to marry. A synopsis of the contents of that letter is as follows:
a.the Applicant was a business executive from China and owned “properties” in China;
b.the Sponsor was a licensed contractor of independent financial means;
c.The parties met on 28 September 2016 and were longing for married life again;
d.On 15 November 2016 the Sponsor had filed for divorce but in order absolute would not be issued by 23 December 2016, the expiry date of the Applicant’s visitor visa;
e.The parties had already given Notice of Intended Marriage;
f.the parties had already engaged Peak Lawyers to make preparation for an Application and Sponsorship for Partner Visas.

135. The assertion in the above letter as to the Sponsor’s financial means was contradicted by the applicant in her evidence before the Tribunal. The Tribunal gives weight to this contradiction. This contradiction also raises a concern as to the truthfulness and accuracy of the instructions given by the applicant, not only at that time, but throughout the entire visa application and review process. This also contradicts the applicant’s assurance given to the Tribunal at the commencement of the hearing to the effect that everything communicated to the Australian Government and the Tribunal on her behalf was true and correct. The Tribunal gives weight to this contradiction.
136. On 12 December 2016, Peak Lawyers acting on behalf of the Applicant and her Sponsor wrote to the Department of immigration and Border Protection advising that the Applicant’s son’s school fees and homestay amounting to about $30,000 per year had been solely provided by the Applicant by remittance from China, and that her son intended to attend tertiary education in Queensland for International Commercial Relations.
137. At the time the Applicant met the Sponsor her son had $46,008.01 dollars in his account. All of the money came from the Applicant, as her son was a full time student. It was from this account that regular payments of $300 per week were paid into the joint account.
138. The Applicant said she had not transferred any money to her account from China. The money deposited into it was from her work making dumplings in five Chinese restaurants. She had “heard most recently” that they are not licenced and said, “we just went in the back door, but I realise it might not be legal so I stopped working there.” The applicant gave the name of one restaurant as being something similar to Hong Kong Dim Sung, but was unable to provide names of the other restaurants. The Applicant said that she was paid in cash. When asked how much she earned she said that she never really calculated but said that she earns $12 per hour for eight or nine hours per day and works four days per week.
139. The Applicant told the Tribunal that In China she owned and ran a factory pneumatic machines, air compressors, and sold it around May 2016. She had also owned an investment property and residence. She sold both of these in April 2017 for a total of 1.7 million Yuan and the residence Y 500,000, a total of around $400,000.
140. The applicant told the Tribunal that the majority of the proceeds of sale were put were put in a savings account under her son’s name in China. The Applicant gave vague evidence that there had been a fraud and she thought this had been in May 2018. The Applicant was not able to give the Tribunal information as to any specific figures save above, or the current balance of that account. The Tribunal finds that the applicant’s response on this issue to be vague and evasive.
141. The Applicant said that she commenced helping her husband in his work in November 2016. She was initially assisting him five days a week, starting about 5 am and finishing about 3 in the afternoon. The applicant described a range of tasks she performed included moving timber, painting, mopping and oiling floors, cleaning windows and dusting. She reduced to three days a week because of exhaustion and arthritis and stopped in February 2017. The sponsor later hired a trainee and paid him $35 per hour for doing the same work that the applicant had been doing. The applicant said that the sponsor had not been paying her, however in view of the many unsatisfactory aspects of the applicant’s evidence, the Tribunal gives little weight to this.
142. The Applicant told the Tribunal that she and her Sponsor had no jointly owned assets, and the Sponsor had no assets. The Tribunal accepts this evidence.
143. The applicant also told the Tribunal that the parties each had a separate bank account, as well as the joint account from which domestic bills were paid. Weekly deposits of $300 were made into the joint account for the Applicants from the Secondary Applicant’s account, and the Sponsor contributed $150. The Tribunal accepts that there has been some sharing of household expenses, but considers that these are not distinguishable from what one might expect to find in a house sharing arrangement.
144. There is no evidence before the Tribunal that beyond a share of household expenses, any part of the proceeds of the sale of the Applicant’s properties in China in April 2017 ever found its way into the joint account, and the Tribunal gives weight to this.
145. The Applicant agreed with a suggestion by the Tribunal, that it was not quite true that the Sponsor made her pay for everything, which is what she told Ms De Luca. This raises a concern as to the veracity of the Applicant’s statements to Ms De Luca. The Tribunal gives weight to the fact this.
146. The Applicant said that the Bank cheque for payment of the visa application fees was drawn from her son’s bank account, i.e., from funds which she had provided. The Sponsor did not contribute to it. It appears that the electricity bill for the premises was in the name of the Sponsor, and the respective telephone accounts were in individual names.

147. The Tribunal is not satisfied that the applicant has given the Tribunal a candid account of her financial circumstances. The Tribunal finds that at the time of application the applicant and sponsor had no jointly owned assets, and little by way of shared financial and legal obligations. There was no significant pooling of financial resources beyond the sharing of household expenses.
148. The Tribunal finds that an overall consideration of Regulation 1.15A(3)(a) as at the date of the visa application weighs against this application for review.
Regulation 1.15A(3)(b)
Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
149. The Tribunal accepts that the parties constituted a household for a period of some ten months, and that during this time there was to some degree mutual care and support offered to the Secondary Applicant by the Sponsor, and sharing of housework. However, in the light of the overall evidence in this review, the Tribunal gives the consideration of Regulation 1.15A(3)(b) little weight in favour of the application.
Regulation 1.15A(3)(c)
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.
150. On 5 December 2016, Catherine Breese made a written statement which she repeated more or less word for word in a statutory declaration dated 9 March 2017. The declarant stated that she had met the Applicant on 13 November 2016 at a farewell dinner which appears to have been at her home. The declarant stated that the Applicant had since visited her a couple of times with the sponsor, and seemed to be really enjoying her time in Australia and practising her English. There is no evidence of any social contact between Ms Breese and the parties subsequent to 5 December 2016 other than possibly for the purpose of execution of the statutory declaration. Ms Breese made no assertion that the applicant and sponsor had represented themselves as being married to each other. In any event, the statutory declaration is of little assistance in addressing the statutory criteria which the Tribunal is obliged to consider, and the Tribunal therefore gives it little weight.
151. Also on 5 December 2016, Mr Paul Arthur Cook provided a statement in which he said that he had known the Sponsor for a number of years, and met the Applicant at Kedron where she was helping the Sponsor on a job, and had subsequently met them many times for coffee at his place. Mr Cook could go no further than to say, “they appear to be in a close relationship”. Once again the Tribunal has no specific evidence of any social contact between Mr Cook and the parties subsequent to 5 December 2016, other than possibly for the purpose of execution of a statutory declaration which he made on 12 March 2017 which essentially said the same things as he had said on 5 December 2016. Mr Cook made no assertion that the applicant and sponsor had represented themselves as being married to each other. Once again, the statement in statutory declaration by Mr Cook are of little assistance in addressing the statutory criteria which the Tribunal is obliged to consider, and the Tribunal therefore gives them little weight.
152. The clergyman Mr G. E. Mulcahy provided a signed statement dated 7 March 2017 in which he stated amongst other things, that the sponsor had been elected so serve on the Property Committee as well as the Church Council, which was a mark of the “genuine good regard and respect held for [the sponsor] within the congregation. He described the parties as “developing a close friendship and genuine caring relationship.” He said that they clearly enjoyed each other’s company, and that he was happy when he learned of their intention to marry. Mr Mulcahy officiated at the wedding of the parties. He also stated that “approximately at the middle of last year [the Sponsor] began to be accompanied to worship each week by [the Applicants]. This statement cannot possibly be true as the Applicant only entered Australia on 24 September 2016. The statement gave no specific details of the author’s other interaction with the parties, particularly post wedding. The Tribunal gives it some weight.
153. The declarant Xi Lin stated that she had known the Applicant and Sponsor for 3 ½ years, and for a short period of time had been roommates with the Applicant, and had got to know the Sponsor when he visited her at their rental property, and when the declarant visited the parties at their home. The declarant stated she was convinced she had witnessed genuine romantic development of their relationship, that the Sponsor was both caring and fond of the Applicant and gave examples of how they supported each other, “for instance I have seen how [the Sponsor] and taught [the Applicant] English by pointing at objects. I have also seen how [the parties] did a great deal of laundry together when I visited them. Hence I believe the relationship between [the parties] is genuine and continuing.” The declarant further stated that the Applicant “was heartbroken badly as a result of the domestic violence. She told me how critically she was hurt both physically and mentally. I sympathise with her situation and I indeed feel sorry for what [the Applicant experienced].
154. The declarant did not state how many times she had visited the parties at their home and whether or not she had attended at the residence prior to or after the date of the present visa application namely 16 March 2017. The declarant made no assertion that the applicant and sponsor had represented themselves as being married to each other. This declaration is of limited assistance, and the Tribunal therefore gives it little weight.
155. The Tribunal also has before it the statutory declaration of Mr Jin Wang, who observed the parties when they were customers at his fish and chip shop at which time the parties communicated by mobile phone. The declarant did not state how many times this occurred. It is unclear whether these episodes occurred before or after the parties were married, or both before and after. The declarant did not describe any interaction outside his fish and chip shop. The Declarant stated that he rarely talked to the Sponsor. He stated that he saw the couple communicating via mobile phone, and they were “immensely engaged”, and “truly passionate and intense” and that he saw the Sponsor teaching the Applicant how to use a salt and pepper shaker. It was on this basis that the declarant stated that he believed the relationship was genuine and continuing. The declarant made no assertion that the applicant and sponsor had represented themselves as being married to each other.
156. The declarant does not appear to have had any engagement with the parties outside his fish and chips shop. The Tribunal gives little weight to this statutory declaration, as it does not consider observations made, however honestly, in the course of a transaction or series of transactions for the sale of fish and chips as a sufficient evidentiary basis to be of assistance to this Tribunal.
157. The Tribunal also has before it a statutory declaration dated 12 April 2018 by Carolyn Scully. The declarant stated, “I am the neibourgh (sic) of [the parties].” At the time of this declaration, this statement cannot have been true, as on the Applicant’s evidence by theis time the parties had lived separately and apart for over 8 months. The declarant stated that the parties lived together for about one year, and that she used to see them at home together usually. She said that she saw the applicant do housework and dry the clothes outside to contribute to her family. The declarant stated that the parties used to relax on their balcony together frequently, and from what she observed, they had a strong physical and emotional dependency with each other. The declarant stated that “They spend their social life together and they were also so sweat (sic) to each other, I genuinely thought that their relationship is genuine and continuing one. One paragraph of the declaration appeared as follows:
I am aware that [the Sponsor] was ~~potentially alcoholic as he~~ spent a lot of time drinking on the balcony and he is bad tempered.
I am aware of the domestic violence incidence happened to the couple and I fell truly sorry for [the applicant] for her broken relationship with [the sponsor].

158. The Applicant provided no clear evidence of interaction with Ms Scully. It is not clear whether Ms Scully ever set foot inside the parties’ house, or vice versa. Ms Scully did not detail any close interaction or conversation she had with the parties. Neither did she assert that the parties ever represented themselves to her as being a married couple. The declaration presents conclusions which appear to be based upon very generic fleeting observations. The declarant has not satisfactorily explained her reasons for concluding “I genuinely thought that their relationship is genuine and continuing one”, and the Tribunal therefore gives this statutory declaration little weight.
159. There is very limited independent evidence of the basis on which the parties planned and undertook joint social activities.
160. The Tribunal finds that an overall consideration of Regulation 1.15A(3)(c) weighs against this application.
Regulation 1.15A(3)(d)
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.
161. The nascent circumstances of the relationship are inherently improbable and implausible, and lacked credibility, and warranted careful scrutiny.
162. These circumstances did not grow in credibility in consequence of the First Peak letter, which contained a false and misleading statement as to the financial circumstances of the sponsor, which was material to the consideration of the application. It also contained an assertion that the parties were “longing for married life again”, a proposition which is not easy to accept having regard to the applicant’s circumstances. The Tribunal considers that a genuine applicant would not have considered it necessary to falsify the sponsor’s financial circumstances or to romanticize the relationship with such language, particularly having regard to her very recent marital history.
163. In item 61 of her visa application, the applicant declared that she had entered into a prior marriage on 24 November 2015, and that this marriage had ended a little over six months later in divorce on 3 June 2016. In item 58 of her visa application, the applicant declared that she had committed to a shared life together with the sponsor to the exclusion of all others on 25 October 2016. This was one month after meeting the Sponsor, and was less than twelve months after her prior marriage, and less than five months after her divorce.
164. Within two months of the commencement of cohabitation, the applicant was packing to leave, but stayed at the behest of her son. The Tribunal nevertheless accepts that the parties lived together for a period of about nine months.
165. In the April declaration, the applicant’s description of her sponsor might well have been of Dr Jekyll. The person the applicant described in vivid detail in the De Luca declaration and Mr Kong was more like Mr Hyde. On the one hand, the applicant described an at times happy relationship. She said that sometimes she would sleep on a separate bed, because the Sponsor’s bed was “quite small for two people to sleep comfortably.” The applicant described the sharing of a social life and shopping and household chores. The applicant declared that the sponsor “treated my son really well. He treated him like his own son….I was also moved by [the sponsor] caring for my son.” On the other hand, the applicant also described a bad tempered foul mouthed individual prone to physical, sexual verbal and emotional abuse, which culminated in an incident on 31 July 2017 which led to her hospitalisation.
166. At paragraph 6 of the De Luca declaration, Ms De Luca stated that the Applicant initially started to notice problems in the relationship when she began going alone with the Sponsor to pubs around December 2016. When the Sponsor got drunk he would swear at her and call her numerous obscene names and criticise her cooking, swearing at her, and using aggressive body language. The declarant said that when these behaviours occurred, the Applicant would tell the Sponsor that she wanted to leave, and would sometimes start packing her bags following which he would be remorseful and begged her to stay. Tellingly, the declarant said, “He would then treat her well for a little while, but it would never last more than a couple of weeks, then the drinking and swearing at her would start again.” [Tribunal emphasis] The Tribunal considers that the statement to Ms de Luca clearly refers to numerous occasions commencing around December 2016, well before the visa application date, and makes no attempt at in any way confining such episodes to after that date.
167. The Applicant told Ms de Luca that the first time she wanted to leave was in December when the sponsor was drunk, and she started packing her bags at that time. The Applicant told the Tribunal that there were numerous similar episodes. The Applicant said that it was only after April or May it became quite frequent. The Applicant told the Tribunal that between December and April there was only the one episode in December, and after that it became a regular occurrence. However, this evidence appears to be at odds with the Applicant’s prior statements to Ms De Luca and Mr Kong. The Applicant’s evidence was that the Sponsor’s behaviour changed suddenly and markedly after they were married. Although this assertion is reflected in the application for the Protection Order, it is not reflected in the statutory declarations which formed part of the basis for it.
168. At paragraph 7 of the De Luca declaration, the Applicant recounted how the Sponsor or expected “total obedience” from her, and would soil his underwear and expect her to clean it. When the Applicant stopped washing it for him, he became very angry, pointing at the laundry and swearing.
169. At paragraph 8 of the De Luca declaration, the Applicant recounted how the Sponsor would be very refined in public but acted very differently at home. This leads the Tribunal to find that the various persons who have made statements in support of the genuineness of the relationship between the Applicant and Sponsor did not have a true insight into the nature of the relationship, and accordingly the Tribunal gives those statements and statutory declarations little weight.
170. At paragraph 9 of the De Luca declaration, the Applicant described financial abuse by the Sponsor. “She said she was made to pay for everything – the rent, all the expenses; and she was also doing all the housework. On top of this, she said the Sponsor asked her to go to work with him, so she would have to get up at 5 AM and go to his work and then come home to do “all the work there too.” This is at odds with paragraph 15 and 35 of the April declaration, and the Tribunal gives weight to this inconsistency.
171. At paragraph 10 of the De Luca declaration, the Applicant described deliberate and painful acts of physical sexual abuse. She also reported that the Sponsor quote “would deliberately fart on her, sometimes up to 10 times at night. She said they started staying in separate beds and she was seriously considering leaving [the Sponsor] but her son really wanted them to stay together, and [the Sponsor] would beg her to stay. This statement leaves the Tribunal with the impression that the applicant remained with the sponsor more out of commitment to her son than her commitment to the sponsor, and that had it not been for the son’s intervention, the Applicant probably would have left the Sponsor on one or more occasions well before she ultimately did.
172. Whilst in the De Luca declaration, the move to separate beds was painted as being in consequence of abuse, at paragraph 33 of the April declaration, the Applicant explained this as “Sometimes I would sleep on a separate bed but still in the same bedroom … because [the Sponsor’s] original bed was quite small for two people to sleep comfortably.” This appears to be a further example of the Applicant tailoring her statements to her immediate objective. The Tribunal gives weight to this inconsistency.
173. At paragraph 13 of the De Luca declaration, the Applicant is recorded as having described incidents of verbal, emotional, sexual, financial, and physical abuse as well as intimidation and controlling behaviour.
174. The Tribunal considers that the De Luca declaration most likely offers the applicant’s candid recollection of her abusive treatment by the sponsor. At no point in the De Luca declaration is that treatment confined to the period after the marriage and visa application. The Tribunal accepts this evidence and finds that the applicant was threatening to leave the sponsor as early as in or around December 2016, and remained with him at the behest of her son.
175. In the first Kong report, Psychologist Colin Kong reported that the applicant met the sponsor “After a month whilst Mrs Zhang was visiting her son in Australia, she met [the sponsor]”. The applicant met her sponsor within four days of her arrival in Australia, and this raises a serious concern about the reliability of what the applicant told Mr Kong. Mr Kong also reported that the Applicant had “managed a factory business in China more than 10 years, and during this time she acquired a substantial financial position.” Mr Kong also stated that the Applicant’s belief in her relationship with the Sponsor “caused Ms Zhang to transfer all her assets in China to Australia.” This statement of transfer of assets to Australia was not true, and was contradicted by the Applicant when she testified that the proceeds of the sale of her factory in China had remained in China and been invested in her son’s name. This raises doubts about the truthfulness of what Mr Kong was told by the applicant. The Tribunal notes with concern that this testimony came from the witness after she had told the Tribunal that everything she had told both Ms De Luca and Mr Kong was true.
176. The first Kong report also stated that the Sponsor “was always a ‘heavy drinker’ and he was “always verbally emotionally and psychologically abusive such as yelling, screaming, slamming doors and generally presenting himself very aggressively.” The Tribunal notes the repeated use of the word “always” in this report. The Tribunal relies on this evidence to find that the incidents of domestic violence towards the applicant were not confined to the period post marriage and post visa application, and rejects the applicant’s evidence to the contrary.
177. On 18 October 2017 the Applicant applied for a Domestic Violence Order which was made on 2 November 2017. In ground 6 of the application for a Protection Order it was asserted that “After the Aggrieved married the Respondent, she found out that the respondent had the tendency to abuse and perform acts of domestic violence.” The statutory declarations in support of the application contained no evidence to support the assertion that the egregious conduct attributed to the sponsor was in any way confined to the period after they were married. Importantly, paragraphs 65-73 of the April declaration do not confine the period of alleged domestic violence in this way either. Neither did the letter from Fenson & Co Lawyers (the Fenson letter) dated 19 October 2017. In respect of this point, the Tribunal gives weight to the three statutory declarations and the Fenson letter which do not confine the egregious conduct attributed to the sponsor to the period after the parties were married. The Tribunal is concerned that the terms of the application for the Protection Order misrepresented the evidence, and the Tribunal gives weight to this.

178. In her evidence before the Tribunal, the applicant was inconsistent with what is recorded in with her own statutory declaration, as well as the De Luca declaration and the first Kong report, and the Fenson letter, and asserted that the egregious behaviour only became more regular as in April or May 2017. The weight of evidence is against this assertion, and the Tribunal rejects it. The Tribunal considers that neither Ms de Luca, nor Mr Kong, had any reasons to report anything other than what they were told, and the Fenson letter supports their version of events.
179. The Applicant’s evidence was that at times when she was considering leaving the Sponsor, she remained with him, because her son wanted her to. This raises a question as to whether the Applicant’s true commitment was to her son, rather than her relationship with her Sponsor.
180. The Tribunal considers it likely that there were episodes which led the applicant to start packing her bags and threatening to leave the sponsor beginning from as early as December 2016. The Tribunal considers it likely that the gaps between such episodes were, as recorded above, never “more than a couple of weeks”. The Tribunal accepts that the Applicant was badly mistreated by the Sponsor, and this raises a concern as to the Sponsor’s commitment to the relationship. The Tribunal accepts that the Applicant remained with the sponsor at the behest of her son, the secondary applicant. The Tribunal considers that had it not been for the intervention of the secondary applicant, the applicant may well have left the sponsor as early as December 2016. This casts doubt on the Applicant’s commitment to a long term relationship at the time of the visa application. The Tribunal is also unable to characterise the sponsor’s conduct towards the applicant as demonstrating commitment to a long term relationship as at the date of the visa application.
181. The evidence before the Tribunal is not sufficient to satisfy it that the parties had the requisite commitment to each other so as contemplated by Regulation 1.15A(3)(d).
182. An overall consideration of this criterion in the light of the totality of the evidence weighs against the application.
Any other circumstances of the relationship under r.1.15A(2).
Domestic violence
183. The Applicant gave evidence that the last time she saw the Respondent was the day after the alleged domestic violence incident, at which time she returned to the home to collect her belongings under police protection. The Applicant had no conversation with him on that day and has had no subsequent contact with the Respondent. There is no evidence of any attempt by the Respondent to contact the Applicant subsequent to 1 August apart from a couple of text messages sent to the Secondary Applicant, which were not responded to, and two phone calls, which the Applicant told the Secondary Applicant not to answer. The Sponsor had no knowledge as to the Applicant’s whereabouts as and from 1 August 2017.
184. It appears that the Applicant lived safely at an address or addresses unknown to the Sponsor as and from 1 August 2017 to the present date.
185. The Tribunal considers it likely that the possibility of obtaining a Protection Order would have been discussed with the police who escorted her to collect her belongings. The Tribunal notes that there does not appear to have been what might be termed any clear and present danger to the Applicants, and that no steps appear to have been taken to prepare evidence to support an application for a Protection Order until after the Applicant had received the Natural Justice letter concerning the end of the relationship, and no doubt taken legal advice in respect of it.
186. This Applicant strikes the Tribunal as being an intelligent and commercially sophisticated individual. She has shown a capacity to quickly identify and act upon circumstances in which she might benefit from legal advice. Indeed, no later than early December 2016 she and the Sponsor engaged a firm of Solicitors and Migration Agents to seek an extension of her visitor visa so as to enable her to remain in Australia to marry the Sponsor. It appears that from that day forward, the Applicant acted closely on legal advice to achieve her objective, with the result that a substantial number of documents were able to be lodged with the Department in support of her Partner visa application less than 7 days after her actual marriage.
187. Following the hearing, on 17 June 2020, the Tribunal wrote to the applicant seeking information as follows:
You are requested to provide the following information:
 The Presiding Member requests the names and addresses of the five Chinese restaurants where Ms Shuqing Zhang stated she worked making dumplings.
o Also requested is the names of the proprietors or persons who engaged her for work at each restaurant, and the dates you commenced and concluded employment at each restaurant, and any available copies of employment contracts.
o Pay statements provided to her, together with statements of superannuation contributions, and a current statement of her superannuation entitlements.
o The Member considers this relevant to assist the Tribunal with your undertaking to comply with Australian law.
 The bank records provided to the Tribunal of Mr Zheng Yao, show, that on 25 October 2016, $14,352 was transferred from the bank account. The Presiding Member requests to where this was transferred and the reason, with available supporting documentation.

188. Prior to the initial hearing, the applicant’s only disclosure of paid employment was contained in paragraph 9 of her statutory declaration of 8 April 2020 wherein she declared:
I started working a year after I arrived in Australia. I worked in a Sushi shop.

189. At the initial hearing, the Applicant gave evidence inconsistent with this, stating that she had worked at five Chinese restaurants. This added to concerns about the Applicant’s earlier misleading evidence. It was necessary for the Tribunal to evaluate the worth of the applicant’s evidence that she merely “thought” the restaurants “might be illegal”.
190. In her statutory declaration dated 24 June 2020, the applicant declared that she “did not receive any employment contracts payslips or superannuation details for any of [her] jobs” which covered the period from 3 July 2017 to 19 May 2019. It also emerged that the applicant worked at Narati Noodle and Grill for the periods 3 July 2017 to 31 July 2017, and again from 14 August 2017 to 29 November 2017. The applicant said in her declaration that the place was closed and she was unable to get any letters about her employment there.
191. The applicant also declared that she had worked at King of Hong Kong Dim Sims from 2 January 2018 to 29 March 2018, and at a Sushi place called INAYAKA from 10 April 2018 to 29 September 2018.
192. The applicant also declared that she worked at Simmer Huang from 24 December 2018 to 19 May 2019.
193. The Tribunal has a number of concerns in relation to the applicant’s oral evidence and statutory declaration of 24 June 2020. Firstly, it was only under close questioning from the Tribunal that the applicant disclosed a number of jobs which were not mentioned in her the April declaration, or any other material she had placed before the Tribunal.
194. Secondly, in the April declaration, the applicant declared “I started working a year after I arrived in Australia. I worked in a Sushi shop.” This statement was not accurate. The applicant commenced paid work a little over nine months after her arrival in Australia, not a year after. When the applicant did commence work, it was not in “a Sushi place”. The applicant does not appear to have worked at “a Sushi place” until about eighteen months after her arrival in Australia. To the extent that the applicant told the truth regarding this issue in the April declaration, she did so in a fashion which did not give a true picture of her work history. This raises a concern as why she would not make a full and frank disclosure of her work history if she had nothing to hide. In her evidence, the applicant told the Tribunal that she suspected her employers might be operating illegally, and that is why she ceased her employment.
195. This applicant came to Australia with many years of commercial experience, and this is to some degree reflected in her prompt engagement of professional advice when she felt it would assist her. The complete lack of any statutorily required contemporaneous documentation and financial records in relation to one job might be accepted as a reflecting a less than diligent employer. However when that lack extends to four separate jobs over a period of nearly two years, the Tribunal is concerned that the applicant has engaged in a pattern of conduct which renders her contention that she only suspected her employers were operating illegally highly implausible, and the Tribunal finds that the applicant’s evidence generally, as well as her undertaking to comply with Australian law lacks credibility, and the Tribunal therefore gives little weight to her evidence.
196. The reason for the payment request was that the date of the payment coincided with the date nominated by the applicant in item 58 of her visa application as being the date she and the sponsor committed to a shared life together to the exclusion of all others, and also the date given by the sponsor at item 10 in his Form 40SP as being the date of decision that the parties both intended to marry each other. Having regard to the fact that the decisions were made one month after the parties had met, and the false assertion in the first Peak letter as to the sponsor’s financial circumstances, the Tribunal considered that it was relevant to exclude the possibility that the payment of $14,352 had been transferred to the sponsor as an inducement to enter the relationship. The Tribunal has considered the applicant’s response, and finds that this was not the case.
197. Having regard to all of the foregoing, the Tribunal generally rejects the evidence of the applicant as lacking credibility and unreliable.
198. The Tribunal is therefore not satisfied for the purposes of s. 5F(2)(b) of the Act that at the time of the visa application the parties had a mutual commitment to a shared life together as husband and wife to the exclusion of all others.
199. Further the Tribunal is not satisfied for the purposes of s. 5F(2)(c) of the Act that as at the date of the visa application the relationship between the parties was genuine and continuing.
200. Further, the Tribunal is not satisfied that as at the date of the visa application the parties were living together on a permanent basis, and that the applicant would have left the sponsor as early as December 2016 had it not been for the intervention of her son.
201. On the basis of the above, the Tribunal is not satisfied that the requirements of s. 5F(2) were met at the date of the visa application.
202. The Tribunal is therefore not satisfied that the parties were in a married relationship as at the date of the visa application for the purposes of s. 5F(1) of the Act.
203. Having regard to these findings, there is no need to proceed to consider clause 820.221 (3) of Schedule 2.
204. Therefore the Applicant does not meet cl.820.211 as at the date of the visa application. There is therefore no need to consider the application of cl.820.221 .
205. For the reasons above, the Applicant does not satisfy the criteria for the grant of the visa.
Secondary Applicant Zheng Yao
206. Having found that the primary applicant does not meet the primary criteria for the grant of a Partner (Temporary) (Class UK) (Subclass 820) visa, the Tribunal has also assessed the secondary applicant against the primary criteria for the grant of a Partner (Temporary) (Class UK) (Subclass 820) visa, and finds that the secondary applicant does not satisfy this criterion.
207. As the secondary applicant does not meet the definition of spouse or de facto partner under section 5F or 5CB of the Act, the Tribunal is therefore not satisfied that he meets subclause 820.211 (2)(a) of the Regulations. Consequently the secondary applicant does not meet clause 820.211 which is a criterion that must be satisfied by him at the time of application.
208. It follows therefore that none of the applicants is able to meet the secondary criterion of clause 820.321 by virtue of being a dependent or a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Partner (Temporary) (Class UK) (Subclass 820) visa.
209. Having regard to these findings, the appropriate course is to affirm the decisions under review.
DECISION
210. The Tribunal affirms the decisions not to grant the Applicants Partner (Temporary) (Class UK) visas.
Roger Maguire
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).