Zhou (Migration)

[2019] AATA 1971

Zhou (Migration) [2019] AATA 1971 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jie Zhou

VISA APPLICANT:  Ms Jufang Cai

CASE NUMBER:  1713783

DIBP REFERENCE:  2015/026334

MEMBER:Rosa Gagliardi

DATE:24 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Contributory Parent (Migrant) (Class CA) Subclass 143.

Statement made on 24 May 2019 at 3:21pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – health requirement – free from certain disease or condition – member of family unit – “one fails, all fail” – timing of divorce – reasons for marriage breakdown not convincing – contrived to circumvent health requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2; cl 143.230; Schedule 4, PIC 4005

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 on 12 June 2017 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 June 2015. The delegate refused to grant the visa on the basis he/she considered that the divorce entered into by the applicant and her claimed former husband was a false one and that they only divorced to enable the applicant to migrate to Australia to be with her daughter.

3. The sponsor, Ms Zhou Jie, appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant.  Ms Aifang Xiang also gave evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Ms Jufang Cai (the applicant) lodged an application for a Contributory Parent (Class CA) (Subclass 143) visa on 10 June 2015.

7. The regulations require that each member of the family unit of the applicant for a Subclass 143 (Contributory Parent) visa must satisfy the relevant public interest criteria.  In the case of the applicant the relevant criteria to be satisfied by her is Public Interest Criteria (PIC) 4005 which requires, among other things, that the applicant is free from a disease or condition to which a person who has it, would be likely to require health care or community services or meet the medical criteria for the provision of a community service and the provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care.

8. On 7 July 2015 the applicant and Mr Jinlin Hu, who was her spouse, at the time, were invited to undergo health assessments in relation to the application with a reasonable period (28 days).

9. Form 884 dated 21 September 2015 was provided to the Department and confirmed that

   
   

   Mr Jianlin Hu did not meet the health requirement.  The health of family unit members (including non-migrating dependants) under Schedule 2 requires that all members of the family unit of the applicant seeking to satisfy the primary criteria, meet the health requirements.  For the Contributory Parent visa the health requirement is a “one fails, all fail” criterion.  That is, if any member of the applicant’s family unit fails to meet the health requirement and no health waiver is available, no family member (including the applicant seeking to satisfy the primary criteria) can be granted a visa.

10. A natural justice letter was sent to the applicant on 5 October 2015 inviting her to comment giving a due date of 3 November 2015, prior to the Department making a final decision on the application.

11. On 12 October 2015 the Department received an email from the sponsor, Zhou Jie requesting the application be postponed for 1 to 2 years until the applicant Jinlin Hu passed away or the marriage circumstances changed.  The case officer at the time responded that the Department was not in a position to accede to this request to, in essence, enable the applicant by default, to meet the criteria.  Zhou Jie was given the opportunity to withdraw the application. 

12. On 16 October 2015 an email was sent to the Department requesting an extension of time as the applicant was arranging specialist appointments. 

13. On 16 December 2015 the Department received a completed Form 1022 advising of the divorce between the applicant and Mr Jinlin Hu which occurred on 19 October 2015. 

14. On 19 April 2017 arrangements were made by the Department to conduct telephone interviews with both applicants on separate occasions.  When asked why the relationship broke down, the applicant claimed that the reason was because Mr Jinlin Hu changed his will after he was diagnosed with advanced lung cancer.  The applicant claimed that Jinlin Hu gave his property to his son and not her.  However, when asked further about this matter, the applicant stated that Jinlin Hu had never written a will.

15. At the time the Department conducted its interview, Mr Jinlin Hu was unable to explain why the relationship broke down and according to the Department his answer was evasive and confusing. 

16. The Departmental decision provided to the Tribunal for the purposes of the review reads as follows:

    CAI, Jufang (the applicant) declared that the relationship broke down in the second half of 2015 and moved to her brother’s home in Shanghai.  Departmental records show that during that time, the applicant CAI, Jufang only (sic) been offshore for a couple of days. Furthermore, both applicants have travelled together on several occasions from 19 May 2015 to 5 May 2016.

    Further assessments were carried out and upon our evaluation, it is determined that the applicant CAI, Jufang and Mr HU Jinlin had provided inconsistent information in relation to when and why their relationship broke down, when they started the separation, social recognition of the divorce and whether the communication was maintained after divorce

    In accordance with the information provided above it’s determined that the divorce is contrived to circumvent the “one fails all fail” requirement for migration purposes.

    First hearing

17. The Tribunal discussed with Ms Zhou Jie, the sponsor, why she had asked the Department to delay the application for her step-father (the secondary applicant) to die.

18. The sponsor advised that after her step-father was diagnosed it was a tough time for the family, especially for her mother and step-father and they focussed on his health to concentrate on getting treatment for him.  That was the reason she asked for the application to be held over.  They were stressed.  Because of the disease her step-father and mother decided to change their plans for the future.  He wanted to live with his son for the rest of his life that is why he withdrew his part of the application. 

19. The Tribunal argued that it seemed odd that at the moment her step-father began to have serious difficulty with his health, her mother was no longer prepared to support him.  It did not seem plausible that she would have abandoned her husband when he was most in need because they were stressed.  The sponsor stated that there was another issue in that they had discussed that if he died he wanted to give all his assets and property to his child, his son, but not to her mother and that led to their marriage breaking down.

20. The Tribunal noted that the sponsor had not answered the Tribunal’s question regarding why when the sponsor’s step-father became ill, instead of the family coming together to support him, her mother’s focus was on coming to Australia instead.  She stated they did focus on him due to the disease but the parties each wanted to live with their own children.  The sponsor stated that when she grew up she lived with her biological father and now she wanted to be with her mother.  Her mother had assisted her greatly when she moved to Australia with financial support.  She had set up a business with her husband and it had been a tough time and now she wanted to be with her mother.  The Tribunal again stated that it did not seem realistic that her mother would abandon her step-father at the time she did, to pursue her application. 

21. The sponsor stated that it was not the plan previously to divorce but because of his disease he was thinking of himself and not thinking of her mother, the applicant.  The Tribunal stated that perhaps her step-father was thinking of her mother in that while he remained married to her, she would not be able to obtain a visa to Australia because he did not meet the health requirements.  The sponsor stated that they did separate and had no relationship between them, even though the Tribunal observed that the sponsor had stated that they still assisted her step-father - occasionally her mother and former step-father talked and they helped him get medical assistance, but then her step-father changed because of the illness. 

22. The Tribunal asked the sponsor to explain consequentially what happened between her mother and her step-father since her mother had applied for a Contributory Parent visa on 10 June 2015, when they were still in a spousal relationship.  The sponsor stated that they got notification to do health checks and they got the result that her step-father did not meet the health requirements.  This meant that he could not come to Australia so he thought about changing his plan not to move to Australia because of the disease.  Asked where the evidence was that her step-father had a will, which he then amended, and that it was the source of the conflict between the applicant and her then husband, the sponsor responded that her step-father told her mother that he would not give anything to the applicant and wanted to give all of his property and assets to his son.

23. The Tribunal queried when the applicant married the sponsor’s step-father.  She replied that it was in 1997.  The Tribunal queried whether it was the case that up until the time of his illness, the applicant and her husband had not discussed who the step-father would leave his assets to.  She stated that after the disease he changed his plans.  The Tribunal noted that if he changed his will there would be documentary evidence to demonstrate this.  The sponsor stated that he only told the applicant about this.  She stated that it was in the Divorce Certificate.  The Tribunal noted that the Certificate did not demonstrate how the division of property had occurred and shed no light on the sponsor’s step-father’s arrangements for his son to be the sole beneficiary of his will.

24. The sponsor stated that in China the male got everything in the event of a divorce.  The Tribunal asked whether, therefore, her step-father, had taken all her mother’s property as well.  She stated that in China when they married the property was under her former step-father’s name.  The Tribunal asked the sponsor to provide evidence that all her mother’s assets went to her former step-father on divorce.  The sponsor then revised her account and stated that her mother had no property in China.

25. The Tribunal undertook research during the hearing about Divorce Law in China and noted that there was a legal framework for the division of assets.  The sponsor stated that when she, the sponsor, returned to China she lived with her mother and younger brother.  During her period in Australia she lived with the sponsor.  The Tribunal advised the sponsor that her vague responses may lead the Tribunal to have concerns about her credibility in terms of the reasons for her mother’s divorce, particularly as she kept changing her account.

26. The Tribunal highlighted that the sponsor and the applicant had to demonstrate that her mother and her former step-father were genuinely divorced.  The Tribunal had limited convincing evidence before it. 

27. Asked about the inconsistent responses provided to the Department by her mother and her former step-father, the applicant stated that the interview was conducted in 2017, which was quite a while after the relationship broke down but their answers were still roughly the same. She stated that probably they could not remember the exact time.  After they divorced from the end of 2015 to this day, they have not live together and do not have mutual friends.  They did not support each other financially.  The Tribunal asked the sponsor to point to the evidence that this was the case.  She replied that she had submitted proof of their addresses in China and Australia.  The Tribunal noted that her mother living separately and apart, but not on a permanent basis, from her former step-father may be a contrived arrangement for the purpose of her mother getting the visa. 

28. The sponsor stated that her mother spent most of her time in Australia.  The Tribunal remarked that it was possible for two people to live apart and in different countries and to continue to have a genuine and continuing spousal relationship.  The sponsor stated that she thought that the fact they did not live together, did not share their finances, and did not have children together, is enough to prove they are no longer together.  The Tribunal expressed doubt given the timing of the divorce after the diagnosis of her former step-father’s illness which prevented her mother from meeting the PIC 4005 health criteria.  The Tribunal noted that the Department had made an adverse decision almost a year previously on 12 June 2017, and yet the sponsor was still putting forward vague answers which did not appear to be supported by probative evidence.

29. It was noted that Mr Jinlin Hu at one point had been in Australia getting medical treatment and the Tribunal queried why he could not get such treatment in China.  The sponsor stated that at that time they compared the treatments between China and Australia and it was considered that Australia provided the best treatment.  The Tribunal noted that while her mother had been upset with her former step-father due to his estate arrangements, it appeared that her mother had been prepared to support her former step-father to find the best treatment.  The sponsor responded, that actually the help was coming from her and he would be her friend in the future and she needed to help him.

30. The sponsor stated that her step-father used to promise that her mother would get part of the property but then he changed his intention.  When asked to provide the relevant wills, in particular the one that had been amended, the sponsor responded that there was never was a will.  It was an oral promise to give property to his mother.  He changed his intention orally.  The Tribunal noted that that was not what the applicant had stated at the time of application.  He had stated that he had changed his will.

31. The sponsor stated that perhaps there was confusion caused by the interpreter because the interview had been conducted by telephone and the interpreter might have misunderstood the meaning of “will”.  The Tribunal noted that it was difficult to now make an assessment that in April 2017 there had been a misunderstanding and that perhaps the sponsor was attempting to explain away the inconsistencies.

32. The sponsor stated that the will was an oral promise – it was not written down.  If he did not have a will according to Chinese law everything would go to his son, unless he wanted to gift someone property and then he would need a will. 

33. The Tribunal asked whether her former step-father had not done anything about his property and arrangement of his affairs on learning of his illness.  She stated that her mother was very sad to learn that her husband would leave all his property to his son.  She thought there was no reason to keep going with the relationship.

34. The Tribunal referred to the quick country information check it undertook in the hearing and noted that it indicated that generally, all marital property is divided 50:50, except in rare cases.  The principle of Article 17 of the Marriage Law states that both husband and wife will have equal rights.  During the existence of a marriage relationship, if property belongs to both parties, they will have equal rights if they contributed to it.  Further, accordingly to Article 39 of the Marriage Law, at the time of divorce both husband and wife would agree on the disposal of the jointly owned property. Efforts were being made in the law to ensure that women were not treated unfairly in the event of divorce.[1]

    [1]

35. The Tribunal also put to the sponsor under s.359AA of the Act that in the interview with the Department in April 2017, the applicant had stated that the relationship broke down in the second half of 2015, whereas her former step-father stated that they did not separate until they were divorced in January 2016. Both claimed that family members from both sides were aware of the divorce. The applicant said friends did not know about the divorce but Mr Hu claimed that friends from both sides knew about it. They were asked whether they maintained communication after the divorce and her mother stated she contacted Mr Hu sometimes to check on his condition. Mr Hu however said they had almost no contact. This information was relevant to the review because they both gave inconsistent information in relation to the breakdown of the relationship, the social recognition of their divorce and whether the communication was maintained after divorce. If the Tribunal relied on this information it would find the divorce was not genuine and would find that the parties were not living separately and apart on a permanent basis.

    The sponsor stated that Mr Jinjin Hu got his diagnosis between July –August and he decided to live with his son in China; that is why he wanted to withdraw his application.  They concentrated on finding a treatment plan for him not thinking about the divorce.  In October 2015 they talked about the distribution of assets and that’s when the marriage broke down.  After the divorce they lived separately and there was no evidence they lived together. 

    Hearing Two

36. The Tribunal put to the applicant under s.359AA of the Migration Act the following information:

    ·On 8 October 2015 the sponsor wrote to the Department in the following manner.  “The doctor oncologist step-father has 35% will be alive in five years.  Although we are not willing to accept the cruel reality my step-father may only have one to two years life.  We understand his health not suitable for immigrating.  I have also withdrawn his application.  We have paid 103 and 143 visa more than $6,000.  And also paid 10,000 bank guarantee for my mother.  My mother wants to migrate to Australia as I am the only child of my mother.  We would like to suspend the application until applicant’s marriage condition change.  For example, when he dies and my mother will be a widow.  Please advise if it is ok to suspend the application. 

37. The Tribunal stated that this information was relevant to the review because clearly on

    
    

    8 October 2015 the sponsor did not consider her mother and step-father to be divorcing.  It was her expectation that her step-father would die and then her mother would meet the criteria.  The Tribunal stated that if it relied on this information it would find that the divorce had been contrived and strategized for the purposes of the applicant to be able to meet the criteria.

38. The sponsor responded that it was her mother’s and her step-father’s decision to divorce. The Tribunal observed that had divorce been considered at that time when she wrote to the Department on 8 October 2015, she would have mentioned it.  The sponsor stated that back then her primary concern was his health and his family issues.  The visa was her second thought.  The Tribunal stated that it had concerns that in fact her mother’s visa to Australia was upper-mind as it appeared that she was looking to delay the application to meet the criteria by becoming a widow.  When it became evident that Mr Jinjin Ho was not going to die immediately, it appeared that her mother strategized another option which was to fabricate a divorce.

1. The applicant stated that it had been three years now since she had been living apart from her former husband – she had therefore been living separately and apart from him on a lengthy basis and the spousal relationship had ceased.  The Tribunal noted, however, that just one month prior to the claimed divorce the sponsor and applicant had written to the Department in the following manner, “I have submitted all requested documents I have also chased up the hospital reports for Mr Hu.  Please follow up for next stage”.  This information was relevant to the review because it would appear that just one month before the so-called divorce, the sponsor was still chasing up health reports for her now claimed former step-father.  If the Tribunal relied on this information it would find that one month out from the divorce she still considered Mr Hu as part of the family unit, and that he only became her “former step-father” when it became apparent that he did not pass the medical test and that therefore her mother’s application would fail. 

2. The sponsor stated that one month seems short but it was very long to them.  His diagnosis changed his idea and changed their life.  Mr Hu’s intention was to make different financial arrangements.  Her mother was concerned she might not have a place to live.  After Mr Hu was diagnosed he changed his ideas about his financial arrangements and he wanted to leave all his money to his son. 

3. The applicant stated that right after the diagnosis Mr Hu wanted to live with his son and wanted to leave all his money to his son.  She stated that the will was an oral one.  The Tribunal asked the applicant whether she was included in Mr Hu’s will when they married.  She responded, “No, but he mentioned that he would leave all his money to his son after the diagnosis”.  The Tribunal considered it implausible that she and her husband would not have discussed how they would divide their assets in the event either of them died.  She responded that she did not ask him.  They did not mention anything about assets.  The Tribunal noted that Mr Hu had one property, so what expectation did she have that she would get any assets. She responded that he has two properties. 

4. She stated he had two properties and transferred one to his son’s name.  Asked when he did that she stated that she did not know; he just did it. 

5. The Tribunal asked the applicant to set out how she and Mr Hu decided to divorce.  She stated that after the diagnosis he told her he would leave all his assets to his son, and after 20 years of marriage she thought she would have nothing.  She was upset that he did not put any weight on the marriage and consider it important.  She told him that when he went she would not have a place to live so when he asked for a divorce, she agreed.  Right after the diagnosis he wanted to live with his son.  That is when he asked for the divorce.  She stated that she told her daughter (the sponsor) right after he had told her – at the end of 2015.  The Tribunal noted that they divorced in October 2015. The applicant then revised her account and stated that she told her daughter after they were divorced.   When he mentioned the divorce she had a discussion with her daughter to suspend the application because Mr Hu might die and then he would not be a part of the application anymore.  The Tribunal noted that when her daughter had written to the Department to say that they wanted the Department to wait until Mr Hu died this was only 13 days before the so-called divorce.  There had been at that stage no indication of a divorce.

6. The Tribunal asked why her dying step-father would have turned around to be punitive towards the applicant like that.  The applicant repeated that he wanted to leave all his assets to son.  The assets were his before the marriage. 

7. Ms Aifing Xiang also gave evidence and stated that she became aware of the divorce in 2015 – the end of 2015.  She noticed the applicant was low and upset and told her that her husband was diagnosed with cancer.  She was also upset about the arrangement after the diagnosis.  The Tribunal queried Ms Xiang as to whether she could recall the context in which the applicant told her about the divorce.  She stated that they were living in neighbouring villages and at the time and she was living with her parents back then.  They kind of grew up together and were co-workers.  They got together quite often so it was one of those times.  She stated it was years ago. They lived in a country village and we bumped into each other at a friend’s house - not exactly a friend - just someone they both knew.  The Tribunal asked whether the applicant had said anything about her visa and how the diagnosis would affect it.  Ms Xiang stated that she mentioned the diagnosis of her husband and he did not qualify for migration, and that is why she was low and she was also low about the diagnosis.  That’s all she knew.

8. After the hearings the Tribunal wrote to the applicant on 26 April 2019 pursuant to s.359A of the Migration Act as follows:

   I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Contributory Parent (Migrant) (Class CA) visa.

   The Tribunal is sending for your reference a copy of the s.375A Certificate located on the Departmental file.  This certificate instructs that certain folios on file ought not be released because they are internal working documents of the Department and relate to operational matters.  Some of the folios covered by the Certificate do refer to operational matters but there is also material which the Tribunal considers may inform the Tribunal’s decision as to whether Mr Hu is a member of the visa applicant’s family unit.  As such the Tribunal does not consider the Certificate valid as apart from strictly operational material which is of no consequence to the decision, the applicant should be provided with an opportunity to comment given the material may be adverse to the applicant for the purposes of the review.

   In the interests of transparency the Tribunal sets out the information:

   · Folios 315-316 relate to the Department having planned, but not proceeded with a site visit and interview with you and Mr Hu. The adverse material contained in these folios is set out below under Section 359A of the Migration Act.

   ·  Folio 319 relates to possible initiation of site visit.

   ·  Folios 342 – 344 Correspondence between Departmental officials concerning possible site visit.

   · Folios 354 – 367 Continued discussion about interview and possible site visit between Departmental officers. Other information consists of details put to the applicant at hearing pursuant to s.359AA of the Migration Act.

   In addition, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review (s.359A of the Migration Act).

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·  Your movement records show that along with those of Mr Hu, you had been travelling together and staying at the same address/es in Australia since May 2013.  In particular both your movement records show you entered Australia together on 19 October 2015.

   This information is relevant to the review because the Tribunal may find that just up until the divorce on 21 October 2015 you and Mr Hu were travelling together, indicating that you were still in a spousal relationship.

   If the Tribunal relies on this information in making its decision, it may find that the divorce was contrived for the sole purpose of you being able to achieve a migration outcome, even though you and Mr Hu are not living separately and apart on a permanent basis. As such, the Tribunal may find that you do not meet the requirements for the grant of the subclass 143 visa.

9. On 9 May 2019 the applicant responded as follows:

   Our claims
   
   

   A. Error in travel dates and destinations

   The Applicant and Mr HU departed Australia together on 19 October 2015.

   Subsequently, the Applicant and Mr HU got an official divorce, dated 21 October 2015. A Form 1022 advising of Change in Circumstances was provided to the Department to the effect that the parties were no longer in a spousal relationship, as effected by the Chinese government.

   Since departing Australia on 19 October 2015 and the subsequent divorce of 21 October 2015, the Applicant and Mr HU travelled together to Australia one last time on 27 October 2015, when Mr HU came to seek specialist medical treatment given his advanced and deteriorating health condition. They departed on 5 May 2016.

   We respectfully submit that the Tribunal and the Department have erred in their view of the Applicant’s international movement records, as the Applicant and Mr HU did not travel to Australia on the said date. In fact, they departed Australia together on 19 October 2015. The divorce took effect on 21 October 2015.

   We have further submitted the Applicant’s passport stamps, which clearly show that the Applicant and Mr HU departed Australia on 19 October 2015 as well as their movements from that date.

   We further note that in China, the process of obtaining a divorce is a much faster process compared to Australia. This allowed the Applicant and Mr HU to obtain the divorce as soon as they returned to China on 19 October 2015, which resulted in the divorce of 21 October 2015.
    

   Reasons for travel after the divorce

   Out of respect of their longstanding, yet ceased relationship, the Applicant assisted Mr HU to travel to Australia on 27 October 2015 and return to China on 5 May 2016. This was their last trip together from and to Australia.

   On 5 May 2016, the Applicant and Mr HU departed Australia together. Mr HU received high intensity treatment for his condition, which left him too weak to travel on his own. The Applicant assisted him for the return flight to China.

   The purpose of Mr HU’s trip to Australia on 27 October 2015 was to receive intense medical treatment from specialist medical professionals in Melbourne. The Applicant, out of respect for
   Mr HU and their previous relationship, agreed to assist Mr HU to travel during these dates.
   
   

   Living separately in Australia

   Despite this travel, independently verified evidence has been submitted to the Tribunal, which clearly establishes that the Applicant and Mr HU did not live together in Australia from 27 October 2015 to 5 May 2016 and while Mr HU was undergoing treatment.

   In particular, medical certificates, invoices from treating doctors and insurance companies as well as the statutory declaration of Mr HU’s friend Wei Lei Chen – all included in Exhibits E to S are all conclusive that the Applicant and Mr HU lived separately and apart on a permanent basis while they were both in Australia from 27 October 2015 to 5 May 2016.

   Since then, they have not travelled together from and to Australia or any other country, nor have they lived together.

   There is compelling evidence and submissions that have been made by the Applicant and the witnesses in their statutory declarations as well as during the hearing, which clearly establish that the Applicant and Mr HU’s spousal relationship ended by effect of the divorce of 21 October 2015.

   A single trip to and from Australia following the divorce of 21 October 02015 cannot be seen as indicative of a spousal relationship, given there is no other evidence to suggest that the Applicant and Mr HU have had any kind of relationship that would satisfy the definition of a spousal relationship for the last 4 years.

   As such, we submit that Mr HU is not and was not a member of the Visa Applicant’s family unit at the time of decision of the application.

   The Visa Applicant should be granted the Parent (Contributory) visa (subclass 143 – Migrant) as she satisfied the requirements under PIC 4005.

   The requirements under clauses 143.230 and 143.324 do not apply.
   
   

   Evidence in Support

   21. Please refer to the following additional material, which has previously submitted to the
             Tribunal: i. Exhibit E – Mail to Jufang CAI – Australia – 2015 and 2016

   ii. Exhibit F – Mail in Australia - Jinlin HU - February and April 2016

   iii. Exhibit G - Statutory Declaration - Wei Lei Chen

   iv. Exhibit O - Passport Stamps - Ms Jufang CAI

   v. Exhibit P - Commonwealth Bank Account Confirmation - Jufang CAI - October 2018

   vi. Exhibit R - Bank Term Deposit from China – Jufang CAI – June 2018

   vii. Exhibit S - Mail to Jufang CAI - China - August 2018

   viii. MRTA Case 1317310 - November 2014

   Conclusion

   The validity and effect of this Divorce Decree should not be questioned;

   On balance, we respectfully submit that the requirements as set out in ss 5F and 5CB(2) of the Act cannot be met to establish that the Visa Applicant was or is in a spousal or de facto relationship with Mr HU at time of decision.

   Therefore, the Visa Applicant and Mr HU are not members of the same family unit.

FINDINGS AND REASONS

1. The applicant is arguing that since the divorce, the parties have no longer been living together (household registrations and other documents to support this contention have been sighted by the Tribunal).  It is also argued that the Tribunal should accept that the marriage was genuinely dissolved because the divorce certificate states so.  In addition, the applicant contends that and because of the effluxion of time, the period they have spent apart has increased, and that this in itself should demonstrate to the Tribunal that the parties’ divorce was a genuine one and that it was not contrived to circumvent the “one fails all fail” requirement for migration purposes.

2. The Tribunal accepts that an official divorce has occurred between the applicant and Mr Hu, however, this does not mean that the Tribunal cannot go behind the divorce and the claimed separation of households to assess whether it was only entered into to enable the applicant to meet the visa requirements. 

3. Further, the Tribunal is not convinced that simply because of the increasing time that has elapsed since the parties were divorced and are no longer living together, that the Tribunal should rely on these arrangements as being genuine and not for the sole purpose of assisting the applicant achieve a migration outcome.  It could be argued that the continuing separate living arrangements have simply been in place because of the length of time the application and review process have taken.  The Tribunal has reservations, therefore, that the parties have contrived to live apart only for the purposes of the applicant being able to gain a positive migration outcome to Australia and that they would continue to do so until the applicant gained a migration outcome.  The Tribunal is not persuaded, therefore, that the applicant and her claimed former husband have not been living separately and apart for the sole purpose of the applicant being able to meet the criteria for a Contributory Parent visa.

4. The timing of the divorce is of concern.  The Tribunal does not rule out that, of itself, this might not be fatal to the application.  Nonetheless, the applicant is basing her claims that her marriage fell apart after Mr Hu’s diagnosis, on the argument that Mr Hu had decided to leave all his property to his son and wanted to go and live with him.  But the evidence to support that this is the case is minimal and at hearing the applicant and sponsor continued to give vague responses to the lead up to the divorce.

5. In addition, the Tribunal has reservations about the reasons for the marriage breakdown.  The sponsor on 8 October 2015 wrote to the Department to advise that they wanted the application to be suspended so that her mother would become a widow and she could meet the requirements of the visa class, thereby asking the Department to manipulate the processing of the application for the applicant to achieve an end.  When Mr Hu did not die, the Tribunal queries whether the applicant considered that the only way she could meet the criteria was to divorce the sponsor.

6. It was argued by the applicant that they only had an oral agreement about management of Mr Hu’s estate prior to the diagnosis, even though at hearing she stated that they had not discussed on marriage how they would arrange their affairs in the event one of the parties died.  It is difficult for the Tribunal to see, therefore, how the applicant could argue that she was disappointed due to the non-fulfilment by Mr Hu of an expectation that they had not previously settled on, even though it appears that the applicant considered she should have had one of his properties after 20 years of marriage.

7. The Tribunal does not accept that on marriage the applicant and Mr Hu did not have discussions about how they would divide their property in the event of death of one of the parties given that both had children from previous relationships.  The Tribunal conducted a quick search at the hearing which indicated that marriage law is proscribed and that assets accrued by the husband and wife during the period in which they are under contract of marriage shall be jointly possessed.  Article 17 states that property acquired during the marriage includes:

   ·     Pay and bonus;

   ·     Earnings from production and operation;

   ·     Earnings from intellectual property rights;

   ·     Property obtained from inheritance of gift except as provided for in Article 18(3) of this Law; and

   ·     Any other items of property which shall be in his or her separate possession.[2]

   [2] Ibid.

8. The applicant has argued that Mr Hu had purchased his property prior to marrying his mother, yet there is limited evidence to support this claim.  While the Tribunal accepts that Mr Hu is seriously unwell, he would, given his diagnosis, have before him all the documents relating to his ownership of property and how he would divide this on his death.  The Tribunal would have expected, for example, that the applicant would be able to provide evidence of Mr Hu having transferred property into his son’s name – this is a matter that needs to be done via documentation and not orally.  The Tribunal also finds it difficult to accept that in 20 years of marriage the parties had no combined assets, no matter how minor these might have been.

9. The Tribunal has had regard to the letter submitted by solicitors in China dated 11 December 2018 referring to, among other things, the fact the parties were divorced, and rights and obligations to raise and educate children, as well as reasons for not being able to grant a divorce.  The Tribunal places limited weight on this document, however, as it does not refer to division of property and what parties can expect in terms of divorce.  Nor does it discuss how inheritance and gifts are managed in the event of death.

10. In the face of limited evidence that Mr Hu had given an undertaking to the applicant that she would benefit with the provision of property to her on his death, but then changed his mind, the Tribunal finds it difficult to accept that this was the reason for the applicant and Mr Hu to end the marriage.  The weaknesses in the argument and the limited evidence submitted lead the Tribunal to question whether the divorce was indeed a genuine breakdown in spousal relations. 

11. The Tribunal accepts that the parties’ financial arrangements are now separated and have been so since the divorce but the Tribunal is not satisfied that the separate financial and living arrangements have not been entered into as a contrivance to enable the applicant to meet the criteria for a Contributory Parent visa. 

12. The Tribunal also accepts that there is some, albeit limited, recognition of the parties being divorced, (apart from the sponsor and the applicant) namely Ms Xiang and Ms Wei Lei Chen.  The Tribunal places some weight on Ms Xiang’s evidence but notes that it was somewhat vague and she appeared to be relying on what the applicant and sponsor had told her.  In addition, Ms Xiang submitted a statutory declaration dated 17 October 2018, declaring among other things, “Ms CAI was devastated about the news and the thought of losing her husband and what that would mean for her as a person.  Towards the end of 2015, I know that the relationship between Ms CAI and Mr Hu changed”. Ms Xiang wrote that the applicant helped Mr Hu get treatment in Australia but they divorced from October 2015 “because of problems with agreements on property and their plans to come to Australia”.  The Tribunal places some weight on this statement but again it is unclear to the Tribunal the extent to which the applicant is relying on the self-serving information provided to her by the applicant.

1. Ms Chen’s brief statutory declaration dated 23 October 2018, states that he/she is a friend of Mr Jinlin Hu and that Mr Hu informed him in 2015 that as part of the visa application he was diagnosed with terminal lung cancer and that the applicant helped Mr Hu to get treatment in Australia from October 2015, “but they got a divorce towards the end of 2015 because of problems in their relationship” and that during his stay in Australia between October 2015 and May 2016 Mr Hu resided at his property.  The Tribunal places some weight on this statement but notes that it does little to explain why the relationship broke down and in terms of Mr Hu residing at his place, the Tribunal, accepting that this was the case, is not satisfied that these arrangements were not entered into for the sole purpose of the applicant being able to meet the visa requirements.

2. The Tribunal has also had regard to whether the parties continued to have a mutual commitment to one another to the exclusion of others and it would appear that for some of the time after the divorce the applicant and her daughter continued to provide some support to Mr Hu by assisting to find him treatment in Australia.  This appears to be at odds with the applicant’s claims that she was so upset about Mr Hu’s conduct in deciding to leave his property to his son.  Instead it would appear that the applicant was continuing to provide

   
   

   Mr Hu with the kind of support and commitment consistent with spouses.  Any cessation of the assistance provided after the Department made its decision to refuse the visa is called into question in terms of whether the parties were attempting to make it appear that they were not providing one another with support and companionship.

3. Under Regulation 1.15A the Tribunal in assessing whether two persons are in a genuine and continuing spousal relationship is required to have regard to, but not exclusively: whether the parties share their financial resources; the nature of their household; whether the parties are recognised as being in a genuine and continuing spousal relationship; whether the parties have a mutual commitment to one another to a shared life together to the exclusion of others; whether the relationship is genuine and continuing; and whether the parties see their relationship as long-term and whether they are living separately and apart on a permanent basis. 

4. The parties have submitted some evidence to indicate that the parties are not living together and do not share finances and have told Ms Xiang and Ms Chen about the demise of their marriage.  Yet in this instance, given the limited probative evidence submitted that would indicate that the divorce was not entered into for the sole purpose of the applicant achieving a migration outcome, the Tribunal has serious concerns that the evidence was produced to make it appear that the parties no longer had anything to do within one another to enable the applicant to migrate to Australia.

5. The Tribunal has concerns that Mr Hu on learning that he was dying was prepared to enter into the fiction that they were divorced and separated to ensure that the applicant could continue to migrate to Australia, even if it meant he would live with his son in China because he was prevented from following her due to the “one fails, all fails” rule. 

6. In terms of the applicant’s response via her migration agent to the Tribunal’s s.359A letter, the Tribunal notes that the Tribunal erred in its letter as:

   ·The applicant and Mr Hu departed Australia together on 19 October 2015. 

   ·They divorced on 21 October 2015.

   ·They travelled together one last time on 27 October 2015 when Mr Hu came to seek specialist medical treatment given his advanced and deteriorating health condition.

7. On the basis of the evidence submitted the Tribunal accepts that the travel dates referred to by the Tribunal in its s.359A letter were incorrect and that the above as set out by the migration agent is factually correct. The correct version of events do little, however, to detract from the fact that the applicant continued to provide support to Mr Hu after the claimed divorce which is consistent with two persons in a genuine and continuing spousal relationship. This is particularly so in light of the problems highlighted by the Tribunal in this decision.

8. The Tribunal has had regard to the submissions by the migration agent and the arguments that Mr Hu is no longer a member of the family unit.  But given that little probative evidence has been submitted to demonstrate that this is the case in terms of how Mr Hu has finally arranged his financial affairs, the Tribunal places limited weight on the arguments made and the evidence submitted that the parties are no longer in a genuine and continuing spousal relationship.

9. The Tribunal has had regard to the Migration Review Tribunal decision submitted by the migration agent, and dated 14 November 2014, regarding a Skilled (Residence)(Class VB) visa referring to the adoption  of a child.  The Tribunal is not convinced, however, that the facts of the case are similar to  the case being reviewed by the Tribunal and is not persuaded that this decision has any precedential value in terms of the Tribunal’s inquiry.

10. The Tribunal finds that at the time of application and the time of decision, Mr Jinlin Hu continues to be a member of the family unit of Ms Cai because it is not satisfied that the applicant’s divorce from him is genuine.  As a non-migrating applicant Mr Hu, therefore, does not meet the mandatory health requirements, namely PIC 4005 and the applicant, Ms Cai also cannot satisfy the requirements of subclause 143.230 as “one fails, all fail”. 

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Contributory Parent (Migrant) (Class CA) Subclass 143.

    Rosa Gagliardi
    Member