Zheng (Migration)

[2019] AATA 2258

Zheng (Migration) [2019] AATA 2258 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zhaohui Zheng
Mr Jia Ren Lee

CASE NUMBER:  1719246

HOME AFFAIRS REFERENCE(S):           BCC2016/3478003

MEMBER:Ann Duffield

DATE:25 February 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the applicants meet the following criteria for Subclass 820 (Partner) visas:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 25 February 2019 at 1:14pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – maintain two residences – travel between Singapore and Brisbane – relationship with applicant’s son from previous marriage – significant amount of common interests – established a high risk business together – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The first named applicant (the applicant) applied for the visa on 19 October 2016 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 secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The applicants appeared before the Tribunal via video conference from the Adelaide Registry of the Tribunal on 22 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor who attended the Brisbane Registry. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   BACKGROUND

7. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

8. The primary visa applicant (the applicant) is a citizen of Singapore born on 21 March 1970. Her son is the secondary visa applicant, also a citizen of Singapore, born on 16 February 1999. She has declared a previous marriage from 1995 until 2008.

9. The secondary applicant applied for a student visa which was refused in 2016.

10. The sponsor is a citizen of Australia born on 10 December 1959. He was previously married in 1981 but that marriage ended in divorce in 2008.

11. The applicant first arrived in Australia on 3 October 2016 on a tourist visa. She lodged a partner visa application on 19 October 2016. She is currently the holder of a tourist visa.

12. The parties met in Adelaide in February 2015 and were married in Singapore on 28 August 2017.

13. The parties maintain two residences; one in Singapore and one in Brisbane.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

    Whether the parties are in a spouse or de facto relationship

15. Clauses 820.211 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.

16. ‘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?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

18. The parties’ evidence at the Tribunal hearing was consistent, plausible and entirely compelling. The Tribunal is satisfied that the parties have a mutual commitment to a shared life together to the exclusion of all others for the following reasons.

19. The Tribunal has considered the 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.

20. The parties’ evidence in relation to the organisation of their finances, including income and outgoings was consistent. The applicant is the primary bread winner whilst the sponsor establishes himself in a new career as a glass artist. They currently share a joint account whereby most of their expenses are transacted. The sponsor and applicant also have a business account.

21. Both parties gave consistent evidence about their glass blowing endeavour including evidence about its function in Jahor Bahru, in Malaysia, and the reasons they established it there and their hopes for its future. The sponsor was also aware of the arrangements surrounding the sponsor’s rental of her own apartment to fund their current larger apartment.

22. The Tribunal is satisfied that the financial aspects of the parties’ relationship support a finding that they have a mutual commitment to a shared life together to the exclusion of all others.

23. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

24. The parties’ maintain two households: one in Singapore and one in Brisbane. The Brisbane houses is on land shared with the sponsor’s parents. The travel arrangements and movement records of both parties are consistent with shared travel between these two households. The applicant’s son is currently doing his second year of Singapore’s compulsory national service so they are spending the majority of their time in Singapore and coming back to Brisbane every few months. Their long term plan is to continue travelling between the two countries as their factory is in Malaysia and contracts for their work are international.

25. The applicant’s son is entirely dependent upon his mother. He entered national service  directly out of school and has not worked, either part time or full time at any time.

26. The Tribunal is satisfied that the nature of the parties’ household supports a finding that they live together and have a mutual commitment to a shared life together.

27. The Tribunal has considered the 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.

28. The parties have met and spent extended periods of time with each other’s family both in Brisbane and in Singapore. The evidence to the Tribunal is that they all get along well and the applicant’s parents have spent time living with the sponsor’s parents whilst they were in Australia on holiday. The applicant’s son and the sponsor appear to get along very well and the applicant’s son referred to the sponsor quite spontaneously during the hearing.

29. The Tribunal is satisfied that the social aspects of the parties relationship supports a finding that they consider their relationship to be long term.

30. The Tribunal has considered the 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.

31. The Tribunal accepts the parties’ account of how they met at an Art Glass conference in Adelaide. Their evidence in this regard was plausible and compelling. They share a love of the medium and have a significant amount of common interests. They have established a high risk business together and appear committed to its success. Equally, the Tribunal was satisfied that their commitment to each other and a future together in Singapore and Australia is a genuine one.

32. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

33. Therefore the applicant meets cl.820.211 and cl.820.221. As the Tribunal has found that the secondary applicant is dependent upon his mother within the meaning of the Migration Act, the secondary applicant also meets the criteria for the grant of a visa.

    CONCLUSION

34. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for Subclass 820 visas.

    DECISION

35. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that applicants meet the following criteria for Subclass 820 (Partner) visas:

    ·cl.820.211 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    Ann Duffield
    Senior 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).