ZHAO (Migration)

[2018] AATA 2137

ZHAO (Migration) [2018] AATA 2137 (23 March 2018)

DECISION RECORD

DIVISION:Migration and Refugee Division

APPLICANT:  Miss Xiaoruo ZHAO

CASE NUMBER:  1609624

DIBP REFERENCE(S):  BCC2015/1225403

MEMBER:Helen Kroger

DATE:23^rd March 2018

PLACE OF DECISION:  Melbourne

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

· cl.820.211(2) of Schedule 2 to the Regulations; and

· cl.820.221 of Schedule 2 to the Regulations.

Statement made on 23 March 2018 at 2:13pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether a genuine spousal relationship exists – Joint finances – Joint household responsibilities – Relationship represented to others – Significant evidence of long term commitment – Where applicant and sponsor have a young child – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 338(2), 347
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.15A(3), Schedule 2, cls 820.211(2), 820.221

VISA APPLICATION REVIEW – SUB CLASS 820

1. The visa applicant applied to the Department for the visa on 27^th April 2015.

2. The delegate refused to grant the visa on 13^th June 2016 on the basis that the visa applicant did not satisfy cl.820.211(2) of Schedule 2 to the Migration Regulations 1994 (Regulations). The criteria for the grant of the visa are set out in Part 820 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one applicant.

3. On 28^th June 2016 the visa applicant made a valid application (under s.347 of the Act) for review of the delegate’s decision (reviewable under s.338(2) of the Act).

4. The applicant appeared before the Tribunal on 14^th March 2018 to give evidence and present arguments. Further documentary evidence was provided to the Tribunal at the same time as the hearing. The applicant’s sponsor (and husband) Mr Hoong Yeuan Chai (Frank) gave oral evidence at the hearing. A close friend of both parties provided oral evidence. The applicant’s representative, Mr John Kotsifas was also in attendance.

BACKGROUND

1. Based on all the documentary and oral evidence before the Tribunal, it is satisfied the facts of this case are as follows: The Review Applicant first arrived in Australia in 2005 on a student visa and studied “foundation” studies as a prerequisite to undertaking an Accounting degree at RMIT.  She graduated in 2009 and moved to a Skilled (VC-485) Graduate visa on 22 September 2009.  The sponsor is an Australian citizen who moved back to Melbourne to commence Year 11 studies at Trinity College.  His parents migrated to Australia when he was 1-2 years of age, but later returned to Malaysia to run family businesses.

2. The parties first met in 2010 in Melbourne, introduced by a “common” friend, went out together on numerous dates and later broke up in the same year.  The Review Applicant returned to China in 2011 where she assumed employment, later as a Private Jet Operator.  Around the same time, her sponsor left Australia to work in Shanghai.  Both parties provided evidence that they stayed in touch during this time as friends, having coffee and dinner, and started to date again.

3. The sponsor moved to Malaysia in 2013 for professional reasons and the parties continued to stay in touch, visiting each other, communicating via telephone and other platforms via the internet.  The relationship continued during this time, not withstanding their different residential locations.  In October 2013, the sponsor proposed and a Chinese fortune teller was consulted to determine the wedding reception date.  The parties returned to Melbourne to be married on 29^th March 2014 and held a traditional, cultural wedding reception in December 2014 in Kuala Lumpur, Malaysia with an extensive gathering of family and friends.  The parties set this date on the basis of the advice provided by the Chinese fortune teller.

4. The parties moved back to Melbourne in January 2015, living in a rental property in LaTrobe Street Melbourne.  They purchased an apartment in Malvern as an investment asset, with the property development  being completed in 2017 for final settlement.  The title for this property stands in the sponsor’s name and evidence was provided that the review applicant’s parents provided the deposit and settlement expenses.  The review applicant’s parents assist with the acquisition of bigger purchases that, in effect, supplements the parties’ household budget.

5. The parties had a son born on 3^rd November 2016.  The parties have provided results of an independent  parentage  test conducted by DNA Solutions Pty Ltd, that indicates that the sponsor is the biological father of their son. The sponsor’s mother visited for one month after the birth to assist the parties during this time.  The parties moved to a rental property in Doncaster that they believed was more suitable for raising their son and was closer to friends who also had children.

6. The parties have been married for four years and have lived continuously together since moving back to Australia in January 2015.  Oral evidence was provided at the hearing that they lived together before returning to Australia after their marriage, with the parties rotating their time together in China and Kuala Lumpur, Malaysia to accommodate their individual work commitments.

ISSUE

1. The issue is whether the applicant is the spouse or de facto partner of her sponsor.

Whether the parties are in a spouse or de facto relationship

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

Are the parties validly married?

1. ‘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).

2. The Tribunal has had regard to a certified copy of the parties’ Certificate of Marriage, which according to the document, took place on 29^th March 2014 at the Melbourne Registry, Old Treasury Building, Spring Street, Melbourne (Reg. No. 43260/2014). The Tribunal accepts the document as genuine. On the evidence, the Tribunal is satisfied 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).

Are the other requirements for a spousal relationship met?

1. Regulation 1.09A(3) and 1.15A(3) provide relevant factors for determining whether a defacto or spouse relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other. As the factors in r.1.1.09A(3) and r.1.15A(3) are essentially the same, they will be discussed together in this decision.

2. In assessing these issues, the Tribunal has had regard to all the documents and evidence provided to the Department and the Tribunal.  The Tribunal notes that much of the evidence provided was not available to the delegate when the application was first submitted to the delegate on 27^th April 2015.

The financial aspects of the relationship

1. The parties have provided the Tribunal with a significant amount of documentary evidence in support of their application (covering each aspect of the Tribunal’s consideration) and provided further evidence and documentation to the Tribunal and during the hearing on 14^th March, 2018.  The parties live in rental accommodation in Doncaster, have an investment property in Malvern and have applied for certification to become a registered childcare provider.  The sponsor is the sole income earner in the family, working at a retail business in Chadstone Shopping Centre and the evidence indicates that he is responsible for most of the household expenses.  The review applicant is a full time carer for their son and her parents in China supplement their household budget for “bigger” items as necessary.  The review applicant’s parents provided the deposit and settlement expenses for the purchase of the investment property, with the title standing in the name of the sponsor.  The parties indicated that the title was not held in joint names due to the Australian Government’s policy on foreign ownership.

2. The Tribunal has considered all the material provided, and in particular the shared responsibility for the household expenses and the investment property purchase and it is satisfied that the applicant and sponsor share all matters in relation to the financial aspects of their relationship.

   The nature of the household

3. In assessing the nature of the household, the Tribunal gives weight to evidence of joint responsibility or shared responsibility for housework and chores, the living arrangements of the persons and responsibility for family members. 

4. The parties have a son who was born on the 3^rd November 2016.  The review applicant stays at home to care for him in a fulltime capacity.  The review applicant shares the caring for the son when he is home, supporting, feeding and playing with him when he is not at work.  The sponsor’s mother visited Australia to care and support both the mother and baby for a month after his birth.   They share responsibility for the household work, including shopping, cooking and cleaning, whilst noting that the sponsor assists in a secondary capacity due to the hours he works outside the home.

5. The Tribunal is satisfied that the parties have established a shared basis to undertake all household responsibilities and for the care of their son

   The social aspects of the relationship

6. The parties were married in Melbourne and held a traditional wedding ceremony and reception in Kuala Lumpur in 2014 with over 100 of their respective families and friends.  The families of both parties support them as a couple, assisting them financially with “bigger” purchase and have visited Australia to assist them with the care of their son.  They have provided certified statements from friends attesting to their relationship and have provided expansive documentation of social events with family and friends.  They have moved to Doncaster to be closer to friends with children, who provide companionship and support to them as a couple and family.  The Tribunal has given regard to the recognition of their respective families and extensive friends, to their relationship.

   The nature of the person’s commitment to each other

7. The parties provided oral evidence about the nature and inception of their relationship.  The parties first met in 2010 at the Max Brenner Café at QV in the Melbourne CBD. Whilst they dated in Melbourne, they gave evidence about them breaking up, moving overseas separately, but staying in touch as friends.  Evidence was given that as the relationship developed again, forming a stronger bond in 2013, they committed to each other, deciding to get married, as they decided that not being together was emotionally “too hard”.  The parties chose to return to Australia to establish their life together as it provided the best opportunities for them together.  The sponsor supported a move to live in Doncaster so that the review applicant was closer to friends who have children and live in the area.  He indicated this would provide greater personal support and companionship for her whilst he was at work.  The parties have applied to become a registered childcare provider and are awaiting certification, with the intent to establish a childcare business together.  The purchase of an investment property together in 2015 and the rental derived from this investment is assisting them to establish themselves.

8. The Tribunal has taken note of the duration of the relationship, the extent to which the parties have maintained their relationship whilst living in different countries, the birth of their son in November 2016, the length of time during which the parties have lived together, the degree of companionship and emotional support that they provide each other, and the plans they are making for their future.   The Tribunal is satisfied that the parties provide significant ongoing emotional support and companionship to each other, share a strong commitment to their son and present as a couple focused on having a future together.

9. After having regard to the circumstances of the parties relationship, the Tribunal finds the parties demonstrate a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. 

FINDINGS

1. The Tribunal finds from all the evidence the parties are married to each other under a marriage which is valid for the purposes of the Act, and therefore at the time of application and time of decision the parties meet s.5F(2)(a).

2. The Tribunal is satisfied that at the time of application and the time of decision the applicant and the sponsoring partner have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

3. Additionally, the Tribunal is satisfied that at the time of application and time of decision the applicant and the sponsoring partner live together. Accordingly, they meet the requirements of s.5F(2)(d) for a married relationship.

4. For these reasons, the Tribunal finds that at the time of application and time of decision the applicant and the sponsoring partner are in a married relationship within the meaning of s.5F(2) and therefore satisfy the definition of ‘spouse’ contained in s.5f.

5. The Tribunal is satisfied that at the time of application, and time of decision, the applicant was the spouse of the person who is an Australian citizen, that the applicant was sponsored by that person. The Tribunal finds that there is no evidence before it which indicates that the sponsor was prohibited from being a sponsoring partner under cl.820.211(2B).

6. Accordingly the applicant meets the requirements of cl.820.211(2)(a) and (c).

7. Given these findings, the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. Therefore the applicant meets cl.820.211(2) and cl.820.221.

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

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

   ·cl.820.211(2) of Schedule 2 to the Regulations; and

   ·cl.820.221 of Schedule 2 to the Regulations.

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).