Zhang (Migration)

[2019] AATA 5653

Zhang (Migration) [2019] AATA 5653 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuxiang Zhang

CASE NUMBER:  1731232

HOME AFFAIRS REFERENCE(S):          BCC2017/417966

MEMBER:Christine Kannis

DATE:19 December 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.221(3) of Schedule 2 to the Regulations

Statement made on 19 December 2019 at 8:45am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – spousal relationship – valid marriage – financial, household and social aspects of relationship –nature of parties’ commitment – relationship ceased – family violence – evidence tested before a court – sponsor’s term of imprisonment and lifetime violence restraining order – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), rr 1.15A(3), 1.21, 1.23, Schedule 2, cl 820.221(3)(a), (b),(i)

CASE

Guven v MIMIA [2006] FMCA 311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 52 year old national of China. She first arrived in Australia in March 2016 on a Visitor (Subclass 600) visa. The sponsor was born in Australia in 1951. The applicant declared one previous marriage, from which she has an adult son who lives in China. The sponsor declared one previous marriage and two adult children.

3. The applicant applied for the visa on 30 January 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter the primary criteria include cl.820.211 and 820.221 which require that at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(a) (that the applicant is the spouse or de factor partner of the sponsor as defined in the Act) and therefore did not meet cl.820.221. The delegate did not consider the applicant’s family violence claim.

5. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

6. The applicant appeared before the Tribunal on 16 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant claims the relationship with the sponsor ceased on 4 April 2017 and that she has been the victim of family violence. The issue is whether she meets cl.820.221(3)(a) and (3)(b)(i) of Schedule 2 to the Regulations.

9. Relevantly cl.820.221(3)(a) and (3)(b)(i) say:

   An applicant meets the requirements of this subclause if:

   (a)the applicant would meet the requirements of subclause  820.211(2) (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

   (b)        either or both of the following circumstances applies:

   (i) either or both of the following:

   (A)   the applicant;

   (B)   a dependent child of the sponsoring partner or of the applicant or of both of them;

   has suffered family violence committed by the sponsoring partner;

10. The provisions of cl.820.221 indicate that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met the criteria in subclauses 820.211(2) (5) or (6).  This means that, while the claims of family violence do not have to cause the cessation of the relationship, the relationship which has ceased must have been one which would otherwise have met the requirements of the relevant legislation.

11. This approach was approved in the case of Guven v MIMIA [2006] FMCA 311 at [22]-[26] where Hartnett FM found that when considering the grant of a Subclass 100 Spouse (Residence) visa it was open to the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations and only where it found that such a spousal relationship existed, was it required to make a further finding in relation to claims of domestic violence (as it was then referred to).

12. Therefore before assessing whether the applicant has suffered relevant family violence, the Tribunal must assess whether at any point of time the applicant and the sponsoring partner were in a spousal relationship within the meaning of the Regulations.

13. 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 husband and wife 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 as to 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.

14. A  Marriage Certificate issued by the Registrar of Births, Deaths and Marriages (WA) showing the parties were married on 20 January 2017 was provided. On this basis the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F(2)(a).

15. The Tribunal considered the r.1.15A(3) factors.

    Financial aspects of the relationship

16. The applicant told the Tribunal that during the period she resided with the sponsor she worked in a massage shop on a casual basis. She worked five hours per day but she did not work every day. She was paid in cash. The sponsor was in receipt of a Centrelink payment and had no other source of income.

17. The applicant told the Tribunal that she brought AUD$12,000-$13,000 with her from China. She did not disclose this money to the sponsor because she had not known him for very long when they married. She was conservative because of the short period they had known each other. The applicant said she had intended using some of the money to pay for her and the sponsor to travel to China later in the year. In a statutory declaration dated 14 August 2017 she said she used some of the money she brought from China to pay for her visa application and the sponsor said he would repay her some of the money when he could.

18. Westpac statements for a joint account for the period 22 December 2016 to 24 April 2017 were provided. The statements showed seven credit transactions including an initial deposit of $400 when the account was opened. The applicant told the Tribunal that she deposited the cash from her casual employment into the joint account. She said the account was used to pay for living expenses such as groceries. The debit transactions included payments made at Coles, Farmer Jack’s, Aldi and Caltex.

19. The applicant told the Tribunal that the sponsor paid the rent and paid for utilities. She sometimes contributed towards the utilities expenses. The sponsor did not contribute to the joint account.

20. In a statutory declaration dated 14 August 2017 the applicant said she and the sponsor agreed that he would pay the rent and she would pay for the groceries from the joint account.  

21. The applicant told the Tribunal that when she and the sponsor commenced residing together they purchased second had furniture including a bed, a sofa, a washing machine and a television. She paid for all of the items.

22. The Tribunal accepts that the applicant decided not to disclose her financial resources to the sponsor when they married because she had only known him for a short period of time. The Tribunal accepts that couples in a genuine and continuing relationship often elect to maintain separate finances. In the present case the applicant did not disclose the money she brought from China however she deposited her income from her casual employment into a joint account  and paid for groceries and contributed towards utilities expenses. The Tribunal finds the parties shared living expenses consistent with what would be expected in a genuine spousal relationship.

    Nature of the household

23. A Residential Tenancy Agreement for a tenancy commencing on 22 December 2016 and ending on 21 June 2017 showed the applicant and the sponsor were listed as tenants of the property at Somers Street, Belmont WA (Somers Street). The applicant confirmed at hearing that she and the sponsor resided together at Somers Street. They did not reside together at any other address at any time. An Alinta account dated 24 May 2017 addressed to the applicant and the sponsor at Somers Street was provided. 

24. The applicant told the Tribunal that she did the laundry, cleaning and cooking and the sponsor mowed the lawn and looked after the outside area. The applicant said in her culture a woman takes care of her husband. They did the shopping separately or together. She said they ate their meals together.

25. The Tribunal finds that the applicant lived from 22 December 2016 until the relationship ended in the Somers Street property she shared with the sponsor. The Tribunal accepts that the applicant resided with the sponsor with the intention of living there as his wife, and gives this some weight.

26. The Tribunal finds that the evidence in relation to the nature of the household was an indicator of a genuine and continuing spousal relationship.

    Social aspects of the relationship

27. A statutory declaration dated 5 January 2017 made by the sponsor’s son, Mr Kevin MacNamara was provided.  At the time of making the declaration Mr MacNamara had known the applicant for one month. His reasons for his belief that the parties’ relationship was genuine and continuing were that he had witnessed them living together in a caring relationship. At hearing the applicant said she had met the sponsor’s son only once. Given the brief time Mr MacNamara had known the applicant, the general nature of his reasons for his belief that the parties’ relationship was genuine and continuing and the fact that he met the applicant only once, the Tribunal gave this evidence minimal weight.

28. A statutory declaration dated 4 January 2017 made by Mr Richard Bowman was provided. Mr Bowman is the partner of the applicant’s friend.  At the time of making the declaration Mr Bowman had known the applicant for 18 months and had known the sponsor for one month. Mr Bowman’s reasons for his belief that the parties’ relationship was genuine and continuing were that he had had lunch with them and they seemed to be a happy well suited couple. Given the minimal time Mr Bowman had spent with the parties as a couple at that time and the general nature of his reasons for his belief that their relationship was genuine and continuing, the Tribunal gave this evidence minimal weight.

29. After the relationship ceased Mr Bowman provided a written statement date 26 May 2017 in which he stated that the applicant and the sponsor had been living together in a meaningful relationship at Connell Avenue which he considered to be loving and caring. He said he had dined with them regularly and they had looked after his house and his pets earlier in the year when he visited China. In response to being asked about how often she and the sponsor socialised with Mr Bowman and his partner the applicant told the Tribunal “not very often”. She said they did housesitting for them when they went to China. The Tribunal noted that Mr Bowman referred to the parties living together at Connell Avenue, which was not an address they resided at together. When this was put to the applicant she said Mr Bowman and his partner did not visit them at their home. She said she and the sponsor went to their house.  Mr Bowman did not provide reasons for his belief that the parties’ relationship was a meaningful relationship and Tribunal places no weight on this evidence.

30. The applicant told the Tribunal that the sponsor’s daughter attended the wedding but his son was unable to attend due to work commitments.  She said they spent time with the sponsor’s daughter once or twice month including having lunch with her on the day the parties’ relationship ended. She said she met the sponsor’s brother once. The applicant said the sponsor did not have any friends, not even one.

31. The applicant told the Tribunal that her adult son and her siblings in China knew about the marriage. She introduced her son to the sponsor by WeChat however he does not speak English and so communication was limited. In a statutory declaration dated 14 August 2017 the applicant said the sponsor had not met her family because they are in China and do not speak English.

32. In response to the Tribunal asking about how she and the sponsor spent their leisure time the applicant said they had meals with her friends or the sponsor’s daughter and went to the park and the beach. They went to King’s Park with the sponsor’s daughter on Australia Day in 2017. Photos of the parties together with other people sharing a meal at a restaurant and in a home were provided. The applicant identified the other people as her friends and acquaintances and said one of the occasions was a Chinese New Year celebration.   

33. The evidence before the Tribunal included the sponsor’s Centrelink Income Statement dated 15 February 2017. The Statement showed his relationship status was single. Recipients of income support payments are required to notify Centrelink within 14 days of changes in their circumstances including if they become partnered. The applicant told the Tribunal that the sponsor had not discussed his Centrelink relationship status with her. The Tribunal did not have the opportunity to ask the sponsor about his relationship status for Centrelink purposes and accordingly makes no adverse finding with respect to this matter.

34. There was minimal evidence of social recognition of the relationship. The reasons for this include that the applicant did not know many people when she came to Australia and the sponsor had no friends. The applicant had no family in Australia and the sponsor’s brother lived away from Perth and his son worked away sometimes.  For the reasons stated the Tribunal places minimal weight on the statutory declarations. Against this however the Tribunal accepts the clear and forthright oral evidence given by the applicant at hearing with respect to the parties’ joint social activities. The Tribunal accepts that the parties planned and undertook joint social activities together as a couple during the brief period they lived together. The Tribunal gives some weight to this consideration.

    The nature of the persons’ commitment to each other

35. When asked the reason she married the sponsor the applicant said neither she nor the sponsor were young and the sponsor was lonely. She had previously been married to an alcoholic and the sponsor did not drink much. She and the sponsor wanted to take care of each other as they grew older. She also liked Australia.

36. The applicant told the Tribunal that the relationship was very happy until the day it ceased due to family violence. The sponsor was very nice and he treated her well. She said the sponsor’s violence happened suddenly and she had no clue that he was capable of violent behaviour. If he had shown any prior tendency to be violent she would have been alerted to the possibility. On the day in question they had had lunch with the sponsor’s daughter and on the drive home the sponsor had suggested making love.

37. The applicant said she did not need any emotional support during the time she and the sponsor were living together because they were happy. The sponsor did not have a good relationship with his daughter and she encouraged him to spend more time with her and was supportive of improving the relationship. She suggested inviting the sponsor’s daughter to share a meal with them if she finished school early. The Tribunal accepts this evidence and finds the applicant provided the sponsor with emotional support in relation to his daughter.

38. The applicant said she and the sponsor had discussed traveling to China together later in 2017. She was going to sell her property in China and use the money as a deposit to buy a property in Perth. They had discussed meeting their living expenses, including mortgage repayments, from the sponsor’s Centrelink payment and her income from casual employment. She said the sponsor had started looking at properties and they had driven around and looked at properties together and collected brochures.

39. The Tribunal finds that the parties saw their relationship as long term and planned to buy and property and look after each other as they grew older.

    Conclusion

40. The Tribunal considered the length of time the parties were in a relationship. The parties met on 6 March 2016 and communicated until she left Australia at the end of May 2016. They had no contact until November 2016 and they committed to a shared life together on 20 December 2016 and were married on 20 January 2017. The parties’ relationship was less than four months duration.

41. The Tribunal accepts that whilst the relationship was short after they began living together various aspects of the parties’ actions demonstrated that there was a commitment to a long term relationship at least at some point during the relationship. The commitment to marriage, to prepare and apply and be jointly responsible for the visa application, to start sharing day to day expenses as a couple and to move in together and begin a sexual relationship indicates that at the time of the visa application the couple saw the relationship as a long term one. The couple had discussed plans to travel to China and to purchase a property in Australia. The applicant advised the Tribunal that she provided the sponsor with emotional support around his relationship with his daughter.

42. The Tribunal notes the short period of time the parties lived together and the lack of evidence of social recognition. However these considerations are outweighed by the Tribunal’s findings with respect to the nature of the parties’ household, the nature of their commitment and the sharing of living expenses.

43. The Tribunal has considered the oral and documentary evidence and based on that evidence finds that prior to cessation of their relationship the applicant and the sponsor were married to each other under a marriage; they were not living separately and apart on a permanent basis and they saw their future as a long term one; they had a mutual commitment to a shared life together to the exclusion of others; and the relationship was genuine and continuing. Therefore the Tribunal is satisfied that the requirements of s.5F(2) are met.

44. The Tribunal had regard to the applicant’s statement made on 4 August 2017 to police in relation to the violence committed by the sponsor on 4 April 2017.

1. The Tribunal is satisfied that the relationship has ceased and the issue is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations and therefore meets cl 820.221(3).

   Has a claim of family violence been made under the regulations?

2. Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).

3. In the present case, the applicant is seeking to establish family violence on the basis of evidence tested before a Court. Acceptable forms of court tested evidence as set out in r.1.23, are: a court injunction under the Family Law Act 1975; an Australian Court order for the protection of the alleged victim; or a conviction or finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim. Where such evidence is provided, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence: r.1.23(1).

4. On the applicant’s claims, the only relevant form of evidence is a Court order. The applicant presented a Violence Restraining Order made under the Restraining Orders Act 1997. The order identifies the applicant as the protected person and the sponsor as respondent. The duration of the order is specified as “Life” and the order specifies that the respondent was present in court when the order was made. The order does not bear the seal of the Court however correspondence from the office of the Director of Public Prosecutions confirms that the sponsor was sentenced to a term of imprisonment for the offence of grievous bodily harm and that a Lifetime Violence Restraining Order was imposed on him.

5. The correspondence from the Office of the Director of Public Prosecutions indicated that the sponsor was represented in the proceedings by Queen’s Counsel and accordingly the Tribunal is satisfied that the sponsor was given an opportunity to respond to the family violence allegations in Court.

6. The Tribunal is satisfied that a Court order was made against the sponsor for the protection of the applicant in relation to violence that occurred whilst the parties were in the relationship, after the sponsor had an opportunity to be heard or otherwise make submissions to the court. Therefore, family violence is taken to have occurred under r.1.23 of the Regulations.

7. As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.820.221(3).

8. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

9. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl.820.221(3) of Schedule 2 to the Regulations

   Christine Kannis
   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).