【Classic Cases】09XXX18 [2011] MRTA 6XX

DECISION RECORD

REVIEW APPLICANT: Mr KX JiXX ZhXXX

VISA APPLICANTS: Ms JXX QiXX ShXX

Mr QiXX ZXX

MRT CASE NUMBER: 09XXX18

DIAC REFERENCE(S): OSF2009/02XX95

TRIBUNAL MEMBER: Paul Millar

DATE: 31 March 2011

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

The visa applicants applied to the Department of Immigration and Citizenship for Partner (Provisional) (Class UF) visas on 14 January 2009. The delegate decided to refuse to grant the visas on 8 June 2009 and notified the visa applicants of the decision and their review rights by letter dated 8 June 2009.

The delegate refused the visa applications on the basis that the first named visa applicant did not satisfy cl.309.211 and cl.309.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was found not to be the spouse of the review applicant within the meaning of the Regulations.

The review applicant applied to the Tribunal on 2 July 2009 for review of the delegate’s decisions.

The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(5) of the Act and that the review applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

Partner visas involve a two stage process. The visa applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables the visa applicant to travel to and remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered, and generally depends on whether the relationship has continued for a period of at least 2 years.

The Partner (Provisional) (Class UF) visa contains the Subclass 309 (Spouse (Provisional)) visa and the Subclass 310 (Interdependency (Provisional)) visa: Item 1220A(4) of Schedule 1 to the Regulations. The visa applicant has made claims only for the Subclass 309 visa and does not claim to be in an interdependent relationship (defined in r.1.09A) as required by Subclass 310. Accordingly, the claims will only be assessed against the criteria for a Subclass 309 visa.

The criteria for a Subclass 309 visa are set out in Part 309 of Schedule 2 to the Regulations. One of the criteria to be satisfied at time of application is that the visa applicant is the spouse of, or intends to marry, an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and any such intended marriage will be a valid marriage under the Act: cl.309.211. At the time of decision, the visa applicant must continue to be the spouse, and in the case of a visa applicant who at time of application had intended to marry, the marriage has taken place and the applicant continues to be the spouse, at the time of decision: cl.309.221 and cl.309.224.

Regulation 1.15A of the Regulations defines the term ‘spouse’ It specifies that a person is the spouse of another person if the two persons are either in a married or de facto relationship: r.1.15A(1). Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act: r.1.15A(1A)(a). Section 12 of the Act provides that, for the purpose of deciding whether a marriage is to be recognised as valid for the purposes of the Act, Part VA of the Marriage Act 1961 (the Marriage Act) applies as if s.88E of that Act were omitted. Subject to certain exceptions, foreign marriages recognised as valid under the local law in the country where they are solemnized are recognised in Australia as valid under Part VA of the Marriage Act. (The exceptions relate to whether either party was already married, whether the parties were of marriageable age at the time of the marriage, whether the parties are within a prohibited relationship, whether the consent of each party was real consent, whether the marriage is voidable under the local law, and whether the marriage is a same sex union.) Persons in a de facto relationship must be of opposite sexes, not married to each other under a marriage recognised as valid for the purposes of the Act, and not within a prohibited relationship for the purposes of s.23B(2) of the Marriage Act: r.1.15A(2)(a). In addition, both parties must be of full age, that is, 18 or over if either party is domiciled in Australia or 16 or over if neither party is domiciled in Australia: r.1.15A(2)(b).

In the case of both married and de facto relationships, the Tribunal must be satisfied that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the parties live together, or do not live separately and apart on a permanent basis: r.1.15A(1A)(b) and 1.15A(2)(c). Additionally, the Tribunal must be satisfied that for de facto relationships, the parties satisfy these requirements for the 12 months preceding the date of the application unless the visa applicant is applying as a spouse or member of a family unit of a person who is, or was, the holder of a permanent humanitarian visa and meets certain requirements or can establish compelling and compassionate circumstances for the grant of the visa: r.1.15A(2)(d) and r.1.15A(2A).

In forming an opinion whether two persons are in a married or de facto relationship, in relation to an application for a Partner (Provisional) (Class UF) visa, the Tribunal must have regard to all the circumstances of the relationship, including in particular the considerations set out in r.1.15A(3). Those considerations relate to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

The fact that two persons have lived together for a period of 6 months or more is to be taken as strong evidence of a genuine and continuing relationship, but a relationship of a shorter duration cannot be taken not to be genuine and continuing only for that reason: r.1.15A(5).

CLAIMS AND EVIDENCE

The Tribunal has before it the Department’s and the Tribunal’s file relating to the visa applicants.

Department File OSF 2009/02XX95

For ease of reference, the first named visa applicant will be referred to in this decision as “the visa applicant”.

The visa applicant was born on 12 September 1961 in Shanghai, China. She is a 49 year old woman and a national of China (see copies of pages from the Chinese passport at folio 61).

The review applicant was born on 14 June 1960 in China and is a 50-year-old male. He is an Australian citizen (see his Certificate of Citizenship at folio 14 and pages from his Australian passport at folio 7).

The couple married in Shanghai on 12 September 2008 (see their marriage certificate at folio 72).

In their application and sponsorship forms the visa and review applicant put forward the following information about their backgrounds. The visa applicant was previously married from 1985 until 2003 when the marriage was dissolved. She has one child from the marriage a son aged 25 who is included in the application as a secondary applicant. The review applicant was previously married from 1987 until 2002 when that marriage was dissolved. He has 2 children from that marriage a son aged 20 and a daughter aged 14.

On the Department file are statements from the visa and review applicants (folios 110 and 113) in which they gave the background to their relationship. In this respect, they said that they first met over the telephone in December 2007 through the introduction of a mutual friend. In March 2008 the review applicant travelled to China and they met in person. In June 2008 the review applicant proposed to the visa applicant. In September 2008 the review applicant again travelled to China and the couple married there that month. The review applicant returned to Australia on 20 September 2009.

On the Department file are various documents lodged in support of this application. They comprise the following:

Documents relating to the review applicant's first marriage (divorce certificate and a statement from him as to why it failed).

Documents regarding the identity of the secondary applicant (his passport, birth certificate and document regarding his university studies).

Documents regarding the visa applicant and her former marriage (her birth certificate, divorce certificate and a letter from her as to why the marriage failed).

Statements from friends and family of the couple including the person who introduced them to each other.

Photographs of the couple together at different locations and at their wedding.

In April and May 2009 an officer of the Department interviewed the visa and review applicants. On the Department file are handwritten notes made by the officer who conducted those interviews.

In a decision made on 8 June 2009 the delegate refused the application on the grounds that the couple provided inconsistent evidence about their relationship, had spent little time together, supporting evidence from friends and family lacked detail and there was an absence of evidence as to how the couple remained in contact while in separate countries.

Tribunal File 09XXX18

In his review application form, the applicant appointed Daniel Sheen of Austin Haworth and Lexon Legal (Sydney) to act as his registered migration agent, authorised representative and recipient. No further evidence or submissions were lodged with the review application.

After the review application was made, the representative requested that the application be given priority consideration but this request was declined by the Tribunal.

Movement checks made available to the Tribunal indicate that the review applicant was absent from Australia between 21 and 31 March 2008; 10 and 21 September 2008; 4 and 20 September 2009 and 1 and 18 April 2010.

By letter dated 2 December 2010 the Tribunal advised the applicant that he was invited to appear before the Tribunal to give evidence and arguments about his case on 13 January 2011. At the representative's request, this hearing date was postponed to 19 January 2011, the Tribunal advising the applicant of that by letter dated 6 December 2010.

On 14 January 2011 the Tribunal received a letter from the representative dated "30 October 2010" advising that the applicant would appear at the hearing by himself. The representative also advised that the visa applicant and the person who introduced them to each other would also be giving evidence.

In a Case Note dated 18 January 2011, a Tribunal officer recorded that the review applicant spoke to her on the telephone on that date and said that he would not attend the hearing to take place on 19 January. According to the Case Note, the applicant stated that he was aware of the consequences of not attending but he needed more time to find out whether his marriage was genuine because he had doubts about the intentions of the visa applicant. The review applicant was recorded as saying he did not intend to advise the Tribunal of this in writing. The Tribunal officer asked the review applicant if he was certain he would not attend the hearing and he responded that, for the reasons given, he would definitely not attend.

The review applicant did not attend the hearing scheduled for 19 January 2011. Neither he nor his representative have made any further contact with the Tribunal.

FINDINGS AND REASONS

For the reasons that follow, the Tribunal is not satisfied on the basis of the material before it that the visa applicant is or was at the time of application the spouse of the review applicant within the meaning of r.1.15A of the Regulations.

The Tribunal finds that the review applicant is an Australian citizen

The visa applicant and the review applicant were married on 12 September 2008 and registered their marriage in China. There is no evidence before the Tribunal to raise any issue as to the validity of the marriage for the purposes of the Marriage Act. The Tribunal finds that time of application and time of decision, the visa applicant and review applicant were and are married to each other under a marriage that is recognised as valid for the purposes of the Act. They therefore satisfy the requirements of r.1.15A(1A)(a) for a married relationship. As they are validly married, they cannot satisfy an essential requirement of a de facto relationship: r.1.15A(2)(a)(ii). Therefore, the Tribunal has considered whether they meet the ‘spouse’ definition under r.1.15A(1A).

In forming an opinion whether they are in a married relationship and in considering whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together or do not live separately and apart on a permanent basis as required by r.1.15A(1A)(b), the Tribunal has had regard 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 review applicant’s household and their commitment to each other as set out in r.1.15A(3).

The financial aspects of the relationship

The delegate records the review applicant sending $200 to the visa applicant as a Mother's Day gift in May 2008 but beyond this there is no documentary evidence before the Tribunal of any sharing of financial resources between the couple. The couple live in separate countries and so their ability to share financial resources or liabilities is restricted.

The nature of the household

There are references in the documents lodged in support of the application to the couple living together when the review applicant travelled to China in March 2008 and when he travelled there in September 2008. However, their ability to establish a household of any kind is restricted by the fact that they live in separate countries.

The social aspects of the relationship

On the Department file are photographs of the couple among friends and family and also declarations from friends and family attesting to the genuineness of the relationship. There is social recognition of the marriage to that extent.

The nature of the persons' commitment to each other

As stated above, the couple have spent a very brief period of time living together as such. The movement checks indicate that the review applicant was absent from Australia for between 2 to 3 weeks in April 2010 and possibly he went to China to visit the visa applicant although no evidence has been submitted to confirm that. While the couple maintain that they have remained in contact while in separate countries, they have not submitted evidence of this in the form of letters or other evidence of that nature.

In their statements lodged with the visa application and when interviewed by an officer of the department, the visa and review applicants have referred to the companionship, the emotional support they draw from each other and, at that time, their wish to be together.

Overall assessment

The Tribunal acknowledges that while a couple live in separate countries their ability to share financial resources or liabilities is restricted. To be certain that is the reason why there is no evidence that this couple have shared financial resources or liabilities, the Tribunal would have needed to question the review and visa applicants about this at a hearing. In terms of the nature of the household, and also in terms of their commitment to each other, the Tribunal would have needed to explore with the couple at a hearing the reasons why they have not spent more time together as well as the reasons for the review applicant's absence from Australia in April 2010. Confirmation that the couple remained in contact while in separate countries would have also been another subject to have been canvassed with them at a hearing.

The Tribunal acknowledges that at their interview with the delegate, the couple expressed their wish to be together and have produced evidence of social recognition of the marriage but the Tribunal needed to speak to the review applicant in person as well as question the visa applicant at a hearing to be certain that at the time of decision they still felt the same way about each other.

As stated above, the review applicant did not attend the Tribunal hearing and so the Tribunal was not given the opportunity to clarify these various matters with him.

Further, the most recent evidence before the Tribunal about the couple's commitment to each other consists of the statements the review applicant was recorded as making to the Tribunal officer over the telephone on 18 January 2011. Those statements were that he would not attend the Tribunal hearing scheduled for 19 January because he needed more time to find out whether or not his marriage was genuine. That was because he had doubts about the visa applicant’s intentions. As noted above, there was no appearance by the review applicant or his representative at the Tribunal hearing and no further evidence in support of the application has been submitted.

The review applicant's own evidence as recorded by the Tribunal officer is to the effect that that he is uncertain himself that there is a mutual commitment to a shared life between the couple and that he is uncertain as to whether the relationship is genuine and continuing given his doubts about the visa applicant's intentions. Consistently with the statements he is recorded as making to the Tribunal officer, the review applicant did not attend the Tribunal hearing to present evidence and arguments to satisfy the Tribunal that his marriage meets the requirements of the Regulations. The review applicant has not made further contract with the Tribunal nor has his representative.

In the light of the review applicant’s statements made to the Tribunal officer and his election not to attend the Tribunal hearing, and therefore not avail himself of the opportunity to put forward evidence demonstrating his marriage meets the Regulations, the Tribunal is not satisfied that there is indeed a mutual commitment between this couple to a shared life and that their relationship is genuine and continuing.

In reaching that finding, the Tribunal does not have regard to the reasons of the delegate for refusing the Visa application. Those reasons are mostly based on evidence the couple gave when interviewed by an officer of the Department and there is no verbatim record of those interviews. The Tribunal does not attribute weight to the delegate's concerns in the absence of the opportunity to explore them with the review applicant.

Rather, in the light of the statements made by the review applicant to the Tribunal officer, that he would not attend the Tribunal hearing because of his doubts about the visa applicant's intentions, statements confirmed by the fact that he did not attend, the Tribunal is not satisfied that the couple are in a relationship that meets the requirements of the Regulations. The Tribunal makes that finding although it acknowledges the evidence put forward in support of the application in the form of statements from friends and family, photographs and the other documents mentioned above. All of that evidence precedes the review applicant’s statements to the Tribunal on 18 January in which he expressed doubts about the marriage, doubts that caused him to refrain from attending the Tribunal hearing and pursuing his application.

For these reasons, the Tribunal is not satisfied that at the time of application and time of decision the visa applicant and review applicant had 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. They therefore do not meet the requirements of r1.15A(1A)(b)(i) and r.1.15A(1A)(b)(ii) for a married relationship.

For these reasons, the Tribunal is not satisfied that at the time of application and time of decision the visa applicant and the review applicant lived together or did not live separately and apart on a permanent basis. Accordingly, they do not meet the requirements of r.1.15A(1A)(b)(iii) for a married relationship

For these reasons, the Tribunal finds that at the time of application the visa applicant and review applicant were not in a married relationship within the meaning of r.1.15A(1). The Tribunal further finds that at the time of decision, they are not in a married relationship.

The Tribunal therefore finds that at the time of the visa application the visa applicant was not the spouse, within the meaning of r.1.15A, of the review applicant, who is an Australian citizen, and does not meet the requirements of cl.309.211(2) of Schedule 2 to the Regulations. Further, the Tribunal finds that at the time of the Tribunal’s decision the applicant is not the review applicant’s spouse, and does not satisfy cl.309.221 of Schedule 2.

Because the Tribunal finds that the visa applicant does not meet the requirements of cl.309.211 and cl.309.221, the Tribunal finds that the secondary applicant does not meet the requirements of cl.309.311 and cl.309.321.

CONCLUSIONS

For these reasons the Tribunal finds the visa applicant does not meet the requirements of cl.309.211 and cl.309.221 of the Regulations and the secondary applicant does not meet the requirements of cl.309.311 and cl.309.321.

DECISION

The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas

Paul Millar

Member