Zheng (Migration)

[2019] AATA 4700

Zheng (Migration) [2019] AATA 4700 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Liyong Zheng

VISA APPLICANT:  Mrs Siu Wa Yuen

CASE NUMBER:  1710529

DIBP REFERENCE(S):  BCC2015/3232419

MEMBER:Helena Claringbold

DATE:22 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 22 January 2019 at 2:03pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 – genuine partner relationship – parties’ multiple visas and marriages – valid marriage – financial, household and social aspects of relationship – nature of commitment – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), r 15A(3), Schedule 2, cls 309.211(2), 309.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 4 November 2015, Mrs Siu Wa Yuen, also known as Xiaohua Ruan and Helen Yuen, the visa applicant applied for a Partner (Provisional) (Class UF) visa.  The application was based on her spousal relationship with Mr Liyong Zheng, the sponsor.

2. On 24 March 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant and the sponsor (the parties) were validly married and not satisfied that the parties were in a genuine and continuing partner relationship. As a result the visa applicant did not meet cl.309.211(2) and cl.309.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). This is a review of the delegate’s decision record.

3. On 13 November 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from the visa applicant and a witness. The sponsor was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Departmental of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence provided at the Tribunal hearing.

   ISSUE

6. The issue before the Tribunal is whether the visa applicant is the spouse or de facto partner of the sponsor as defined in s.5F of the Act or s.5CB of the Act.

   BACKGROUND ON THE EVIDENCE

7. In 1963 the visa applicant was born in Shanghai, China.  Her parents are deceased.  She has three siblings living in China. On 26 April 1982, the visa applicant married Mr Yunhua Li.  On 24 October 1992, the marriage between Mr Li and the visa applicant ceased. There is one child from this relationship. On 10 February 1993, the visa applicant married Mr Keung Kwok.  On 5 May 2008 the marriage between Mr Kwok and the visa applicant ceased.  There are two children from this relationship.

8. On 30 April 2007, the visa applicant entered Australia as the holder of a tourist visa valid for one month. On 8 November 2008, the visa applicant married Mr Jason Lee Mansfield. On 3 December 2008, the visa applicant lodged a partner visa application sponsored by Mr Mansfield. On 31 March 2011, the partner visa application sponsored by Mr Mansfield was refused.  On 21 June 2011, the sponsor claimed to have moved from his accommodation into live with the visa applicant in her accommodation. On 29 July 2012, the marriage between Mr Mansfield and the visa applicant ceased.  On 23 September 2012, visa applicant and the sponsor married. On 13 March 2013, the Tribunal affirmed the partner visa refusal sponsored by Mr Mansfield. On 22 March 2013, the visa applicant lodged an invalid partner visa application sponsored by Mr Zheng. On 14 October 2015, the visa applicant departed Australia. On 4 November 2015, the visa applicant lodged the current partner visa which is under review.

9. The sponsor was born in 1958 in China.  On 28 January 2000, the sponsor married Ms Lihua Fei.  On 5 April 2003, the marriage between Ms Fei and the sponsor ceased. On 26 November 2005, the sponsor married Ms Aiqin Liu.  He sponsored Ms Liu for a partner visa which was granted on 9 December 2010. On 1 July 2012, the marriage between Ms Liu and the sponsor ceased.

10. In October 2007, the parties met. On 23 September 2012, the parties married. On 14 October 2015, the visa applicant departed Australia.  On 4 November 2015, the partner visa was lodged.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Are the parties validly married?

11. The Marriage Act 1961 (the Marriage Act) requires that marriages are void if either of the parties, at the time of the marriage, are lawfully married to some other person and the marriage was valid in the country in which it was solemnised; and neither party to the marriage, for the purposes of the Marriage Act, was domiciled in Australia at the time of the marriage.

12. As detailed at paragraph 9 the sponsor declared two previous marriages.  The first marriage was to Ms Fei, whom according to the divorce certificate he divorced on 5 April 2003. His second marriage was to Ms Liu whom according to the divorce certificate he divorced on 1 July 2012.  However other information provided as part of the visa application demonstrates that the sponsor had another marriage prior to him entering Australia in 1989. The sponsor did not disclose this marriage as part of the visa application.

13. A psychologist report for the sponsor dated October 2014, recorded the following information that the sponsor informed the psychologist of the following, that prior to migration to Australia he had been married. This marriage ended in divorce because of cultural difference.  The psychologist stated that the sponsor was unable to provide the approximate years of marriage or his ex-wife’s full name. He stated that the sponsor told him for the previous two years he had problems with his memory and when he attempts to remember he gets headaches.

14. A consultant physician geriatrician in a report on 13 December 2014 stated that Re: Carer Visa Medical Application, Mr Li Yong Zheng.  It recorded that the sponsor had been married three times. The consultant also stated that the sponsor suffered from multiple and complex permanent and disabling cognitive and medical conditions including dementia, mixed type which was diagnosed in 2011. He was recorded as presenting with short term memory impairment and appeared to be mentally slow and required 24 hour care and attention at home.

15. At the Tribunal hearing the sponsor denied having been married prior to entering Australia. The visa applicant also gave evidence supporting that position.  The sponsor’s migration agent stated that the medical reports had been commissioned by the sponsor’s previous migration agent and he was unsure the medical reports could be relied upon.

16. The Tribunal accepts that the visa applicant and the sponsor married on 23 September 2012.  As the veracity of the information provided in the psychologist’s report has been challenged and there is no other evidence before the Tribunal that the sponsor was married before entering Australia, the Tribunal accepts that the parties’ marriage is valid. 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).

    Is the visa applicant the spouse of an eligible citizen?

17. The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of this decision, was an Australian citizen.

    Are the parties in a spousal relationship?

18. ‘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).

    CLAIMS AND FINDINGS

19. 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 visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision.

20. About the parties’ financial matters, the parties claim the following:  they began living together on 21 June 2011. On 22 June 2011, they opened a joint bank account. Their income is derived from the sponsor’s disability pension and the income from the massage parlour. The massage parlour and the parties’ residence were at the same address in High Street, Penrith. An ASIC document which expired in June 2015, records the parties as having 100 shares each in the massage business with a share total value of $200. A lease document dated January 2010 to January 2018 for the High Street premises is in the visa applicant’s name and another person’s name. The visa applicant told the Tribunal that the massage business was sold for $40,000 and this money was sent to Hong Kong. In a previous statement she stated the sale took place in June 2015. The visa applicant previously claimed that the sponsor deposited between $200 and $400 from his Centrelink payment, in to the parties’ joint bank account.  She stated that prior to June 2015 she contributed 70 per cent to the parties’ living expenses. Bank statements record unidentified cash deposits, automated teller machine (ATM) deposits and debits.

21. Joint bank statements and various utility accounts between 2011 and 2014 are addressed either to the parties, the massage business, or the sponsor at the High Street Penrith address. Other joint bank statements between September 2013 and June 2015 are addressed to the parties at a Fourth Avenue, Campsie address and from January to June 2015 are addressed to the parties at a Harrow Road, Auburn address.  Another account addressed to the massage business is dated 2015.  Completed tax forms for the sponsor are provided which list the visa applicant as his spouse. However the forms do not contain any information to show that they have been submitted to the ATO. The visa applicant’s current migration agent in November 2018 stated that the visa applicant is living in a property she owns in Shenzhen and has no other property or rental income.

22. In another document dated 2013 the visa applicant is nominated as the beneficiary for the sponsor’s superannuation fund.  The nomination expired in November 2016. However bank records show that the sponsor’s superannuation payout of more than $34,000 was initially deposited in to the parties’ joint bank account, then withdrawn and then deposited in to the visa applicant’s bank account.  The sponsor told the Tribunal that the transfer of this money was because he lost things and the visa applicant was not at ease with him keeping things and she would pay the expenses.

23. The applicant’s migration agent stated that the visa applicant has been unable to find work.  She has been living off the money from the sale of the massage business and the superannuation funds provided to her by the sponsor and collectively these funds are almost depleted. However joint bank statements record that since the visa applicant departed Australia she has made various deposits into the parties’ joint bank account.  The deposits were made between December 2015 and January 2018 totalling approximately $33,940. The sponsor told the Tribunal that this money was to assist his living costs and medical expenses.  The Tribunal accepts that the parties have a joint bank account and had shares in the massage business and had various accounts issued to them. It accepts that various deposits have been made into the joint bank account.  However in many instances the cash deposits are without identification of the person making the deposits and provide no information about what the money was used for. The Tribunal is of the view that the deposits made by the visa applicant into the parties’ joint bank account, after she departed Australia, are in fact, the visa applicant refunding the sponsor’s superannuation payment of more than $34,000, which he transferred to the visa applicant’s bank account before she departed Australia. It is of the view that the sponsor’s superannuation funds being deposited into the visa applicant’s bank account, took place to establish evidence of the parties sharing financial matters and that this occurred for visa purposes. There is no independent information before the Tribunal about any medical expenses the sponsor may have or had. On the evidence the Tribunal does not accept that the parties have any joint assets or joint liabilities or legal financial obligations with regard to the other party.  The Tribunal does not accept that the parties share day-to-day household expenses.

24. In the parties’ household, the delegate recorded in the decision record that in May 2011 and July 2012 the visa applicant was located working in the sex industry. The delegate stated that prior to departing Australia the visa applicant’s address was a brothel.  However the visa applicant claimed that she did not work as a sex worker but only did massage. As the visa applicant had been located by compliance officers undertaking sex work the visa applicant’s statement was challenged.  The visa applicant then stated that she had undertaken sex work for a short time. Information provided by the parties is that they lived together at two addresses.  One address being at the same premises as the massage business at the High Street address and the other address at Harrow Road, Auburn. A lease document recorded the visa applicant and another person as the lessees for the High Street address. While a written statement is provided and the author claimed that the parties rented a room in Harrow Road, Auburn from 14 June 2015 and paid $200 fortnightly, the statement is provided without any identification of the author. The Tribunal discussed with the sponsor various bank statements addressed to the parties at the Fourth Ave, Campsie address.  The sponsor told the Tribunal that the parties had never lived at this address.  He said this is the address where he lived with his ex-wife and the parties had difficulties changing the address on their joint bank account. Since October 2015 the visa applicant has lived in China and Hong Kong and the sponsor lived in Australia. 

25. At the Tribunal hearing the sponsor, when describing the High Street premises, provided numerous and different versions of the premises where he claimed to live with the visa applicant.  He stated that because of his back condition, the visa applicant did most of the household duties and he sometimes helped with cooking.

26. The Tribunal put information to the sponsor under the relevant provision.  The sponsor requested and was granted additional time to respond. The information is as follows:  The visa applicant provided evidence of her role in the massage business.  She stated that she sometimes answered the telephone but didn’t provide any massage services.  This evidence was put to the sponsor as it was inconsistent with his evidence that sometimes the visa applicant provided massage services and if a masseuse didn’t report for work the visa applicant provided the services.

27. The sponsor’s migration agent responded and stated that as a result of the nature of the business the sponsor rarely left the parties’ room during business hours.  The sponsor assumed that his wife occasionally performed massage work but he was not certain. The migration agent stated that the sponsor’s answer was, that the visa applicant usually answered the phone and he saw that as her primary function in the workplace.

28. Even if the Tribunal accepted that the sponsor spent most of his time in the parties’ room, the parties claim to have lived together as partners at the High Street address, which is also the business premises, for approximately four years and claim to have been partners for that time.  In these circumstances the Tribunal would expect that they be able to provide consistent evidence about their household, including about their roles in their business. The inconsistent information about the visa applicant’s role in the business and the sponsor’s inability to provide consistent details when describing the parties’ residence led the Tribunal to doubt that the parties had lived together at the premises or that they shared housework.

29. The sponsor told the Tribunal that the parties have never lived at the Fourth Ave, Campsie address and that this is where he lived with his previous spouse. The Tribunal is therefore puzzled why bank statements are addressed to the parties at the Fourth Ave address. The sponsor’s migration agent stated that when the parties opened the account the sponsor provided his driver’s licence which recorded the Campsie address and additionally he had a personal account with the bank with the Campsie address recorded on it. It is claimed that because of this and the lack of the parties’ English skills, the address on the account was recorded as the Campsie address. The Tribunal does not accept this explanation.  The bank statements provided to the Tribunal show that during the same time the parties had a joint bank account in their names at the Campsie address they also had joint bank accounts at the High Street and Harrow Road addresses. It does not accept the reasons given for the parties’ joint bank account at the Campsie address as plausible because they had established this account from at least September 2013, which is approximately 21 months prior to them moving to the Harrow Road address. Collectively this evidence has led the Tribunal to be concerned about the parties’ credibility. Even after considering the sponsor’s statement that the visa applicant did most of the household duties and he sometimes helped with cooking and while the Tribunal may accept that the parties lived at the same address, it does not accept that the parties shared a household as partners or shared the responsibility for housework. The sponsor told the Tribunal that the visa applicant is supported by her adult children therefore the Tribunal does not accept that the parties have any joint responsibility for the care and support of children.

30. Regarding the social aspect of the parties’ relationship, the parties told the Tribunal that their activities are limited. They stated that they went for a walk or friends would visit them. Third party statements attest to the genuine nature of the parties’ marriage. One author stated in 2015, he attended the parties wedding and picked the parties up from the airport several times and dines out with them.  Another author stated that the applicant’s and sponsor’s families meet for games, meals and leisure. In another statement the author also believes the parties’ relationship to be genuine. A witness at the Tribunal hearing told of knowing the sponsor for many years and of being in contact with the parties. Photographic evidence depicts the parties together and with others at different locations. Other information provided relates to online chat records between the parties and their family members. The Tribunal accepts that the parties communicate with each other and that they represent and are recognised as being in a partner relationship and that they undertake social activities together in Australia and China. It also accepts that the sponsor has travelled to China and has visited the visa applicant on various occasions.

31. Concerning the parties’ commitment, the parties gave evidence to the Tribunal that they lived together since 2011 and married in 2012.  They stated that the visa applicant supported the sponsor and the parties wanted to live together and support each other.  However, the parties provided information about their financial matters which led the Tribunal to find it was fabricated for visa purposes. The sponsor was unable to provide consistent information about the premises where he claimed to live with the visa applicant for approximately four years and the parties provided inconsistent information about the visa applicant’s role in the massage business. In addition, the sponsor’s migration agent provided the Tribunal with a copy of a Centrelink customer record dated 15 November 2018.  This records the visa applicant as the sponsor’s partner.  However, it does not provide any information about when the sponsor notified Centrelink.  The sponsor’s migration agent stated that Centrelink were unable to provide written confirmation about the date of notification. The Tribunal accepts that the sponsor recorded his relationship with Centrelink two days after the Tribunal hearing.  Although the parties have been married since 2012, there is no evidence before the Tribunal that the sponsor registered his relationship with the visa applicant prior to this date.  Collectively, the inconsistent information provided by the parties and the apparent lack of disclosure by the sponsor about his relationship with the visa applicant to Centrelink, led the Tribunal not to accept that the parties, as partners, provide emotional support and companionship to each other or that they see their relationship as long term.

    Other considerations

1. As discussed earlier in this decision record as part of the visa application, a report was provided from a psychologist.  The report detailed that the sponsor had been married prior to him entering Australia.  This information was challenged by the sponsor who denied having been married prior to entering Australia. The psychologist commented on the sponsor’s health conditions including him having early onset dementia and suffering memory problems. The Tribunal asked the sponsor whether he had been diagnosed with having dementia.  He stated that he had not undertaken an MRI to determine his condition or made an appointment to have an MRI. The sponsor’s migration agent stated that the psychologist and medical reports were commissioned by the sponsor’s previous migration agent and he didn’t know whether the reports could be relied upon. In a post hearing statement the sponsor’s migration agent claimed that the psychologist’s practice had ceased and his continued practice was conditional.  In view of this information and comment about the reliability of the psychologist’s report, the Tribunal places no weight on the information contained in the psychologist’s report.

2. In December 2014, a consultant physician and geriatrician reported that the sponsor suffered from multiple and complex permanent and disabling cognitive and medical conditions.  In a post hearing statement, the sponsor’s migration agent claimed that the physician was unwilling to provide a further statement about the sponsor’s health however the physician indicated that he was not in the practice of writing false statements. While this may be the case, there is no evidence before the Tribunal to suggest that the sponsor was not of sane mind or was incapable of providing the Tribunal with his evidence.  At the Tribunal hearing, the sponsor understood and responded coherently to questions put to him.  He understood questions put to the visa applicant, because at times, during the visa applicant giving her evidence, he interrupted her and tried to correct information she was providing to the Tribunal and at other times clarified information for the Tribunal. The Tribunal is satisfied that the sponsor was alert and competent to provide evidence during the Tribunal hearing and that he has been provided ample opportunity to do so.

3. Other medical information relates to 2012 and the sponsor being placed on an elective surgery list and of him being unable to attend TAFE and being unfit for work. Additional information dated 2014 related to the sponsor attending a pre-assessment appointment and of him suffering from Myopia and of having had a haemorrhoidectomy.  A letter of 2015 also stated that the sponsor suffered from Myopia and of having had a haemorrhoidectomy. The medical information before the Tribunal does not give any insight into the sponsor’s health, at the time of the Tribunal hearing. Neither does it allay the Tribunal’s concerns about the credibility of the parties or give cause for the inconsistent information provided by the parties.

4. The Tribunal also provided the sponsor with additional time to submit information and evidence with regard to the review.  The sponsor’s migration agent provided information to the Tribunal post hearing and this has been considered.

5. This decision record is a synopsis of the evidence before the Tribunal. Overall and after considering the evidence individually and as a whole, the Tribunal given the inconsistent evidence and its credibility concerns about the parties is not prepared to accept their evidence about their commitment to the relationship.  The parties have not satisfied the Tribunal that at the time of application and this decision the parties had or have a mutual commitment to a shared life to the exclusion of all others, that they have a genuine and continuing relationship, or that they live together and not separately and apart on a permanent basis.

6. There is no evidence that the visa applicant satisfies any of the alternate criteria for the grant of the visa.

7. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F are met at the time the visa application was made or at the time of this decision.

8. Therefore, the visa applicant does not meet cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

9. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

   DECISION

10. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Helena Claringbold
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).