2110681 (Migration) [2023] AATA 412 (13 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Juan Wang
[Applicant 2]
[Applicant 3]CASE NUMBER: 2110681
HOME AFFAIRS REFERENCE(S): BCC2018/2762346
MEMBERS:Deputy President J.L Redfern PSM (Presiding)
Senior Member Michael IsonDATE:13 February 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.
Statement made on 13 February 2023 at 6:09pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – whether relationship was genuine and continuing – adverse information – allegation of contrived relationship – Department investigation and confidential allegation about contrived relationship – Chinese nationals linked to brothel – allegations of contrived relationship syndicate – alleged migration agents and other persons facilitating contrived relationships for the purposes of a migration outcome – no significant joint assets or liabilities – gaps about financial information to support pooling of financial assets – limited social activities together – credibility of claims that could not be tested at hearing – decision under review affirmedPROCEDURAL – Invitation to hearing – failing to respond – whether inferences could be drawn – declined to appear before Tribunal
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359A, 359(2), 360, 376
Migration Regulations 1994 (Cth), rr 1.15A, Schedule 2 – cls 820.211(1), 820.211(2), 820.211(2)(d), 820.221(1)CASES
He v Minister for Immigration and Border Protection [2017] FCAFC 206
Jones v Dunkel (1959) 101 CLR 298
Re Rodgers and Secretary, Department of Social Security (1991) 24 ALD 720
SZKUI v MIAC [2007] FMCA 1387Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 July 2021 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant, Ms Juan Wang, applied for the visa on 24 July 2018 on the basis of her relationship with her sponsor, Mr Trent Anthony Rocca. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need to satisfy only the secondary criteria. The second and third named applicants are Ms Wang’s children from a previous relationship and are members of her family unit.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) because the delegate found Ms Wang was not in a genuine and ongoing relationship with her sponsor, Mr Rocca.
Ms Wang declined to appear before the Tribunal to give evidence and present arguments. The second and third named applicants are minors and did not actively participate in the review. The applicants were represented in relation to the review by a registered migration agent, Ms Jie Zhan (also known as ‘Cathleen’ Zhan as notified in emails) until 5 December 2022, at which time Ms Zhan’s instructions were withdrawn.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
LEGISLATIVE FRAMEWORK
Section 29 of the Act provides that the Minister may grant a non-citizen permission, known as a visa, to travel to and enter Australia, or remain in Australia, or both. Section 31(1) of the Act provides that there are to be prescribed classes of visas and subs (3) provides that the Regulations may prescribe the criteria for visas of a specified class. The prescribed classes of visas are set out in Schedule 1 to the Regulations and include a temporary and residence partner visa, the latter being a permanent visa. Schedule 2 to the Regulations sets out the prescribed criteria relating to the relevant class of visa, including the primary criteria and any secondary criteria. If the Minister is satisfied that the criteria prescribed by the Act or the Regulations have been satisfied, s 65 of the Act provides that the Minister is to grant the visa, or, if not so satisfied, to refuse to grant the visa.
There is a two-stage process before a permanent partner visa is granted, with the applicant applying for the provisional or temporary visa and permanent visa at the same time. If the criteria for the temporary visa are met, the visa is granted to allow the applicant to remain in Australia until a decision on the permanent visa is made, which in general will not be considered until after two years.
Part 820 of Schedule 2 to the Regulations prescribes the criteria for a temporary partner visa that is applied for from within Australia. Clause 820.21 sets out the primary criteria that must be satisfied at the time of the application and cl 820.22 sets out the criteria that must be satisfied at the time of decision.
Relevant to the facts in this case, subclause 820.211(2) provides that an applicant will meet the requirements for the subclause if the applicant is the spouse or de facto partner of the sponsoring partner, who is an Australian citizen, has turned 18 years of age, is not prohibited from being a sponsoring partner and if the applicant holds a substantive visa at the time of the application.[1] Subclause 820.221(1) provides that an applicant must continue to meet the criteria in subclause 820.211(2) at the time of the decision.
[1] Refer subclause 820.211(2)(a), (c) and (d).
As observed by the Full Court in He v MIBP, the ‘central criterion’ for a partner visa where the parties are lawfully married is that the visa applicant must be the spouse of the sponsor.[2]
[2] [2017] FCAFC 206 at [28].
Section 5F of the Act defines the word ‘spouse’ as follows:
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Relevantly, reg 1.15A of the Regulations provides:
1.15A Spouse
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in sub regulation (3).
(3)The matters for sub regulation (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.
According to the Full Court in He v MIBP, reg 1.15A is prescriptive which means the Tribunal must give ‘proper, genuine and realistic consideration’ to each of the prescribed matters, which comprise of four principal matters and, thereafter, a series of specific matters relevant to the principal matters. The Full Court found that the Tribunal is required to make findings on each of the prescribed matters, even if the Tribunal’s answer may be that there is no material, or insufficient material, to form a conclusion on a prescribed matter. This not only includes the specific matters numbered with Roman numerals but requires findings in respect of the principal matters under the broad headings.[3] This is the approach we have taken to the consideration of the relevant criteria for the visa.
BACKGROUND
[3] He v Minister for Immigration and Border Protection at [73] to [77].
Outline of evidence provided to the Department
Ms Wang lodged her application for a partner visa on 24 July 2018. She was born in China in 1990. Her children, born in 2009 and 2013 in Australia, were included in the application as members of her family unit. Her sponsor was identified as Mr Rocca, who is an Australian citizen. He was born in 1995. Ms Wang and Mr Rocca are said to have been married on 5 June 2018, having first met on 12 August 2017. Their marriage celebrant was Ms Lifang Huang. The application was lodged by a registered migration agent, Ms Della Lee from Australia Visa Link.
In the application for the partner visa, Ms Wang addressed certain aspects of her relationship with Mr Rocca as follows:
·In relation to the financial aspects of the relationship, Ms Wang stated that she had worked as a full-time cook until March 2018, after which time she was unemployed. Mr Rocca worked as a tiler for his parents and then started working at Bunnings around March 2018. He had stable income and Ms Wang had savings from her previous employment. They opened a joint bank account to share their finances together and Ms Wang would transfer her salary from her personal bank account to the joint account while Mr Rocca would deposit cash into the joint account. According to the application, Ms Wang and Mr Rocca paid for their rent, household bills and living costs from this joint account.
·In relation to the nature of the household, Ms Wang stated that she and Mr Rocca, together with her daughters, had been living together in Reservoir, Victoria, since
3 March 2018. The house was rented from one of her relatives. She was responsible for most of the household work and Mr Rocca would help her on the weekend with cleaning and grocery shopping. When Mr Rocca had to work in the mornings, they would send the children to school together and pick them up after classes. During the holidays and weekends, they would take the children to Melbourne Zoo or the Melbourne Aquarium. Ms Wang also stated that she wanted to start her own fish and chip shop business and that Mr Rocca would assist her to manage the business. Ms Wang further stated their plan was that after saving enough money they would invest in property and then consider having a baby together.·On the social aspects of their relationship, Ms Wang stated that Mr Rocca took her daughters out for fun, he introduced her to his family and friends and on 12 July 2018 they celebrated Mr Rocca’s birthday with his family. She introduced Mr Rocca to her relatives and her family who lived in Australia, and they spent time together, including at the Dragon Boat and Easter festivals. According to the application, Mr Rocca loves China and they were planning their first trip to China in early 2019 where Ms Wang would take Mr Rocca to her hometown to meet her parents.
·Ms Wang stated that she and Mr Rocca loved and supported each other from the beginning when they fell in love. Ms Wang further stated that they have a good understanding of each other’s personal characteristics, Mr Rocca and his family did not mind about her past de facto relationship and they loved her children. She stated that their love was ‘unconditional and steadfast’ and she believed Mr Rocca was the right person for her and she wanted to spend the rest of her life with him.
·When asked to give details about the development of the relationship, Ms Wang stated that she first met Mr Rocca at a party held by her friend on 12 August 2017. Ms Wang was impressed by his handsome appearance and bright smile, that he loved Asian culture and they hit it off from the beginning. After the party they exchanged telephone numbers and kept in touch for the next few months. Ms Wang stated that they were attracted to each other and on 18 November 2017 they confirmed their relationship as boyfriend and girlfriend. Ms Wang invited Mr Rocca to celebrate her older daughter’s birthday and after knowing Mr Rocca for six months she felt he was an ambitious and responsible young man and she wanted to spend her life with him. Ms Wang stated they then started planning a joint future and on 14 February 2018 Mr Rocca proposed to Ms Wang. She said yes without hesitation. They started sharing a house that they rented from one of her relatives from 3 March 2018 and started to share their expenses from this date. They officially registered their marriage in Australia on 5 June 2018.
Accompanying the application were statutory declarations provided by Mr Aldo Rocca, the father of Trent, and Mr Ke Wang Chen, a relative of Ms Wang.
According to a statutory declaration declared by Mr Aldo Rocca on 22 July 2018, he had known Ms Wang for 12 months through his son. He stated that Mr Rocca lives at home and met Ms Wang about 12 months ago and had come to their house on a few occasions, usually for family get-togethers. He stated that the relationship between Ms Wang and his son seems to be very strong and genuine. According to Mr Aldo Rocca, Ms Wang and his son share a passion for cooking and playing board games. He stated that they are always together and go out to attractions such as the Melbourne Zoo or Melbourne Aquarium and dining out or going for drives. He stated that they appear to be very happy together and that Ms Wang was a beautiful and respectful young lady and he could see their future together as being full of happiness and adventure.
In Mr Chen’s statutory declaration declared on 22 July 2018, he stated that he had known Ms Wang for 27 years and that her parents are his wife’s relatives. He stated he had known Mr Rocca for eight months. According to Mr Chen, he first met Ms Wang’s husband at her oldest daughter’s birthday dinner in November 2017. He stated that Ms Wang and Mr Rocca spent traditional Chinese festivals such as the Dragon Boat Festival and Easter Festival, with him and his family. He believed the relationship was genuine and continuing and that Mr Rocca was very nice and considerate. Mr Chen further stated that even though Mr Rocca was several years younger than Ms Wang, he was caring and takes care of her and her children. According to Mr Chen, Ms Wang and Mr Rocca confirmed their relationship at the 2017 birthday dinner of Ms Wang’s oldest daughter. He stated that she returned to China to tell her parents and they were happy for her. Mr Rocca and Ms Wang officially registered their marriage on 5 June 2018 and they told him that they would consider starting their own business in the near future. Ms Wang also submitted a letter from Mr Chen dated 17 July 2018, stating that Ms Wang and Mr Rocca had been living together in his property in Reservoir since March 2018 to the date of his letter.
Ms Wang provided a ‘Relationship Statement’ dated 18 July 2018 which was in identical terms to the information provided in the application. She also provided a ‘Separation Statement’ dated 20 July 2018 to the effect that before her current relationship she had one failed de facto relationship several years ago. She stated that at the beginning of her previous relationship their life was ‘sweet and harmonic’ but after the birth of their first child in 2009 things changed. They had conflicts and quarrels and his parents did not accept her daughter. They had a big quarrel on 12 May 2012 and after that the relationship ended. She found she was pregnant with a second baby and hoped they could reconcile and that his parents would approve. She was told that if she gave birth to a boy, they would tell their son to accept her and the older child. When the ultrasound showed that the baby was more likely to be a daughter, he and his parents refused to have contact with her and asked her to end the relationship and the pregnancy. Ms Wang also stated that her parents were disappointed in her, asked her not to have the baby and attempted to arrange a marriage for her in China without her consent. Ms Wang stated that her parents broke off relations with her when she did not agree to their wishes. Ms Wang said that after this relationship she understood that Mr Rocca was the right person for her and her relationship with her parents had improved.
Mr Rocca provided a document, known as a form 40SP dated 19 July 2018, which is a document that a sponsor completes to confirm they are sponsoring someone for a partner visa. Mr Rocca stated that he and Ms Wang first met on 12 August 2017, that they committed to share their life together to the exclusion of all others on 14 February 2018 and that they married on 5 June 2018. Mr Rocca noted that Ms Wang had a previous partner, being Mr Xin Jie Yan, and that she was in a relationship with him from August 2008 to May 2012. It was further noted that Ms Wang had two children from this relationship. Mr Rocca stated that he lived in Wheelers Hill (which is where his father is recorded as living) from April 2008 to March 2018 and in Reservoir from March 2018 to the date of the application. The Reservoir address is the same address recorded in the visa application for Ms Wang. He stated that he had received assistance in completing the application from Ms Della Lee.
Mr Rocca provided a Relationship Statement, dated 20 July 2018, in the following terms:
My name is Trent Anthony ROCCA, and I am an Australia Citizen. I would like to sponsor my wife, Juan WANG for Partner Visa Subclass 820/810, and I am writing this statement to describe our relationship development.
Juan was introduced to me through a friend’s party on 12th August 2017. When I first saw this elegant young lady, I could not help myself looking away from her. With a strong interest in Asian culture, I came right to Juan and started talking with her. During the talk, I felt that she was so charming. I was strongly attracted to her not only by her appearance, but also by her nice personality. After the party, we exchanged our phone numbers and kept contacting with each other for the next few months. As I would like to learn more about Chinese characters and tradition, I usually asked Juan to be my Chinese teacher and she was so patient to answer my questions.
During the time when we spent together, we could not help ourselves attracting to each other. The seed of love was planted in the depths of our hearts. Both of us agreed that we had fallen in love with each other, and we decided to embrace this fact. Therefore, we officially became in a relationship on 18th November 2017 which was also Juan’s older daughter [Applicant 2’s] birthday. I was invited to celebrate the birthday for [Applicant 2], and I also brought special gifts for her lovely and smart daughter. We spent a fantastic night together, and I made a promise to take good care of them for the rest of my life.
I am so appreciated that Juan and her daughters have existed in my life, which always brought me joy. I cannot even imagine each second without them. As long as I had time, I would take them out for fun. We have spent a great time in the zoo and the Melbourne Aquarium, etc. During the time when we were together, Juan has become more cheerful always with a big smile on her face. I knew Juan previously had a failed relationship with her ex-partner, which made her depressed and lonely. I could also feel that she is an independent and tough woman who has experienced hardship to bring up her daughters. I would not like to see her alone any more, and I want to give her and kids a warm family. Then, on the Valentine’s Day of 2018, I proposed to Juan and promised her a harmonious family which is full of happiness. Juan was moved and said she was so lucky to have me throughout the rest of her life. The girls were also excited about their mother’s happiness.
Then on 3rd March 2018, I moved in Juan’s house which was rented by one of her relatives. The most happiness moment for me is to see Juan sleeping soundly by my side every morning. The kids’ bright smile and sweet laughter made me feel relaxed after a busy working day. Although we might have different views, we always use a mature attitude to communicate with each other, rather than escape from those contradictions. There is no doubt we share similar opinions and perspectives on life. After several months’ living together, we got married on 5th June 2018.
Our marriage life has been harmonic. Juan is undoubtedly an incredible woman and definitely the person I love throughout my whole life. Marrying her is the best decision that I have ever made in my life. Her daughters, [Applicant 2] and [Applicant 3] are also sensible kids with good manners. I have developed a very good relationship with them from the time we spend. Juan and I have already planned our first long journey to China where we will meet her parents and friends early next year. In the near future, Juan would like to start her Fish and Chips business. I fully support her decision, and I will help her manage the business. I will also keep working hard, hoping to save some money. Then we will buy our own property which can provide the kids and our future baby with a better living condition.
Thanks for your time reviewing my statement. I hope it would be helpful to understand our relationship.
Ms Wang provided bank statements from the Commonwealth Bank in her name and in the name of Mr Rocca, for the period 9 June 2018 to December 2020. The statements record that the account was opened on 5 June 2018.
The first statement was for the period 9 June to July 2018. The statement records regular withdrawals from the account, some apparently relating to groceries because they refer to Coles, Woolworths and other supermarkets, with some payments to retail stores such as Pandora and Zara and Wilson Parking. There are three cash deposits to the account totalling $5,950 made from different locations. The second statement is missing. In the statement for the period 31 December 2018 to 30 June 2019, there are cash deposits totalling $24,550 in different amounts between $1,000 and $4,000 deposited from different locations but mostly from an automatic teller machine in Box Hill. There are also direct credit transfers from Ms Wang’s account totalling $17,500. These transfers are regular and are made every two to three weeks at the beginning and, from April 2019, once per month. The payments from the account include payments to Woolworths, Coles, Big W, chemists, Wilson Parking, occasional large disbursements for RACV insurance, motor vehicle registration and regular payments of rental in the sum of $2,607 per month.
In the period July to 30 December 2019, there is a similar pattern of disbursements with rental paid for July but not for any other period, although there is a large payment of $5,415.96 described as rent and building insurance in September 2019. There are 12 cash deposits totalling $16,400 and four credits into the account from Ms Wang’s account totalling $4,000. In the period December 2019 to 30 June 2020, there are four cash payments totalling $4,000 and five credits for Ms Wang’s account totalling $7,000. There were no disbursements recorded for rental. In the period July to 30 December 2020, there were four cash payments totalling $7,000 and 12 transfers into the account from Ms Wang’s account totalling $13,000. There were no payments for rental and there were direct debits for Vodafone and Telstra.
Ms Wang also provided details of her mobile telephone accounts showing calls made to Mr Rocca’s mobile telephone number over a six-week period in June and July 2018. Ms Wang’s telephone records with Vodafone show numerous calls to Mr Rocca’s number from 6 June to 16 June 2018 and less frequent but regular calls from 17 June to 16 July 2018. No further telephone accounts for Ms Wang were provided and no telephone accounts were provided for Mr Rocca. She provided copies of utility bills (electricity, water and gas) in the joint names of Ms Wang and Mr Rocca for the Box Hill and Prahran properties, Telstra bills in their joint names, individual tax returns (not assessments) recording Mr Rocca as her spouse, health insurance details with Medibank dated 5 February 2021, noting Ms Wang as the insured and her children and Mr Rocca as beneficiaries under the policy which has been in place since August 2018. She provided a copy of an RACV car insurance policy for her motor vehicle nominating Mr Rocca as a driver and details from Mr Rocca providing updates in relation to his myGov account details with Centrelink and Medicare and an updated notation on his licence recording his address as Prahran rather than Wheelers Hill.
Ms Wang also provided two submissions of copies of colour photographs to the Department. None of the photographs are dated or annotated to indicate when or where they were taken or who is in each photo.
The first submission of photos was provided with the visa application in July 2018. There are 16 photos in this submission. Fourteen of the photographs show Ms Wang with Mr Rocca together on their own or with Ms Wang’s children or Mr Rocca with her children. This includes two photographs of them together when they were married, with one of those photos also including Ms Wang’s eldest daughter. There are three photographs of Ms Wang, Mr Rocca and Ms Wang’s children with unidentified third parties. One is of the three applicants with Mr Rocca and what appears to be, from photo identification provided with his statutory declaration, Mr Aldo Rocca at a restaurant. The other two are the three applicants and Mr Rocca at his 23rd birthday celebration with one photo including an unidentified older woman cutting the birthday cake while the three applicants and Mr Rocca are seated at the table and look on. The second of these photos is of the three applicants and Mr Rocca seated at the same table with the birthday cake in front of them and seven unidentified children standing behind them.
The second submission of photos was received by the Department on 2 March 2021 and contains 19 colour photographs. Three of those photographs depict the three applicants and Mr Rocca at a restaurant with three unidentified adults. There are three group photos at a playground with the three applicants and Mr Rocca with two additional unidentified children. There is one photo at the same playground that includes one of these additional children and an unidentified adult. The remaining photos are of Mr Rocca with one or more or all of the visa applicants. The photos at the playground appear to be a birthday celebration for Ms Wang’s youngest daughter.
Apart from one photo, that appears to include Mr Aldo Rocca and the photos of Mr Rocca’s 23rd birthday celebration, there are no photos of Ms Wang and Mr Rocca socialising with Mr Rocca’s family or friends or their own friends as a couple despite Mr Rocca telling the Department during his May 2021 interview that he, Ms Wang and her children ‘often go to my parents’ house to have family gatherings.’
Ms Wang provided a contract for the sale of a business known as Armadale Pizza Pasta Fish and Chips located in [address 3], Armadale which was purchased by Miss Me Dessert Pty Ltd, a company registered on 18 December 2018 of which Ms Wang is recorded in the register maintained by the Australian Securities and Investments Commission as the sole director and shareholder. The date of the contract was 20 December 2018. The purchase price for the business was $290,000 and the date for settlement was nominated as 8 February 2019. The lease was transferred to Ms Wang’s company and the rental was $59,868 plus GST per annum. Ms Wang provided the special purpose financial statements for Miss Me Dessert Pty Ltd for the financial year ended 30 June 2020. The statements were not signed by Ms Wang but show that the company had total income of over $260,000, other revenue of over $24,000 and expenses of approximately $153,000 with the biggest expenses being for cost of goods sold, rental, utilities and wages. The net earnings were $13,187.43. The statements record net earnings for the company for the preceding year (noting it was registered on 18 December 2019) as $87.99. The statements also record the business has its own bank account with a balance of $21,258.83 at 30 June 2020.
Ms Wang is recorded as stating in the telephone interview with the Department on 21 May 2021 that her auntie Ms Lin Ying is in charge of the business and they employed two–three Chinese staff. The company financial statements for 2019–2020 state only $22,702 was paid in wages. The statements also record there was no expenditure in the 2019–2020 year on wages, despite the transfer of lease stating it was effective from 19 February 2019, which is consistent with the rental adjustment allowed in the statement of settlement for the purchase of the business that Ms Wang provided to the Department.
Ms Wang provided updated information to the Department by letter dated 2 March 2021 about the financial position of her and Mr Rocca. She noted that they had moved from Box Hill to live in the residence behind the shop at Prahran which had two bedrooms, a shower and a powder room. She advised that they had decided to move into the residence at the back of the shop to save on rent. She also stated that she relied on Mr Rocca’s income and the income from her business investment in the fish and chip shop. She stated that she had provided joint bank statements and utility accounts for the Box Hill and Prahran properties, and she requested that the Department make a favourable decision.
On 20 April 2021, the Department wrote to Ms Wang under s 57 of the Act, giving her the opportunity to comment on adverse information received. The adverse information was to the effect that Mr Rocca may be living at an address that is different to the address declared in the current application and different to Ms Wang’s residential address. It was noted that this raised concerns that the declared spousal relationship was not genuine. Mr Rocca provided a statutory declaration declared on 4 May 2021, in which his address was recorded as [address 2], Prahran although the statutory declaration was declared at Wheelers Hill. The statutory declaration was to the effect that he had started living with Ms Wang in Reservoir in March 2018, they moved to Box Hill together around August 2018 and in August 2019 they moved to their current address in Prahran. He noted that he updated his address in his myGov account (and provided copies of this) and thought that all other agencies linked to myGov would be automatically updated. He noted that information shown in other government agency records may refer to the Wheelers Hill address, which is his parents’ address, but this would be incorrect.
On 19 May 2021, the delegate advised that it was proposed to conduct telephone interviews with Ms Wang and Mr Rocca to confirm details of the relationship. The telephone interviews were conducted on 21 May 2021 and records of the interviews are contained in the Department file. Ms Wang was interviewed first, then Mr Rocca was interviewed. Ms Wang and Mr Rocca were asked a series of questions by the Department officer. Ms Wang’s interview is recorded in the Department’s record of the interview as being one hour in duration and Mr Rocca’s interview was 45 minutes. Many of the questions asked were identical. The following is a summary of the main issues discussed.
In her Departmental interview, Ms Wang said that she first met Mr Rocca at a party in 2017, they exchanged contacts, their connection became deeper over the next year and they married. They had been living together since March 2018 at different locations, moving from Reservoir, Box Hill North and then to Prahran. Ms Wang said in the interview she had originally lived in a house rented from her aunt and Mr Rocca lived with his parents until they moved in together in March 2018. Ms Wang noted that she had a previous de facto relationship with her ex-boyfriend which ended around 2012 or 2013. Her previous relationship was a traumatic experience. She met her previous partner in Australia and got pregnant before marriage. Her parents were very angry with her as this was shameful in their culture and her parents-in-law did not support her. Her ex-boyfriend was also not supportive, and she ended up consulting social workers and psychologists after becoming depressed. She had met her previous boyfriend in a restaurant in Australia. At the time of interview, she was not in contact with him as he and his family had abandoned his and Ms Wang’s two daughters. Ms Wang was asked about the fact that on the birth certificate for her second daughter, the addresses for her and her ex-boyfriend were the same. Ms Wang said that she included the same address for him because she did not realise that it mattered. She had originally hoped they could reunite but realised after she was six months pregnant that they could not. She did not know where he was at the time of the interview. He does not provide any support for his daughters. She had discussed this with Mr Rocca, but he did not know much about the details because he respected her privacy.
Ms Wang said Mr Rocca has not met her family. Her parents talked to him via online apps and video chats but not face-to-face. She had met Mr Rocca’s family stating that his mother was a housewife, his father ran the family business and Mr Rocca has two siblings. Mr Rocca’s parents’ house was about 25 to 40 minutes away from where they lived. She said that they had a simple marriage registration ceremony and that her aunt, Ms Selina Chen, her two friends Jade and Xiao Xiao and Mr Rocca’s uncle attended. They had the celebrations at Mr Rocca’s parents’ house. Mr Rocca proposed on Valentine’s Day with flowers and a ring outside a restaurant.
Ms Wang told the Department officer that she and Mr Rocca celebrated anniversaries and each other’s birthdays before COVID by going out to restaurants, but during COVID they celebrated at home. She gave Mr Rocca an Apple watch as a gift in 2019 for their anniversary and he bought a Louis Vuitton handbag for her birthday the previous year. They haven’t travelled internationally or domestically because of COVID. However, Mr Rocca did travel to Thailand to have his tattoo done after they married. His tattoo was on his full arm. She stated that she did not have a job and that Mr Rocca works as a tiler in the family’s business. She invested in a takeaway fish and chip shop in February 2019, and she receives income from this investment. Mr Rocca was not involved in this investment. The business did not go well because of COVID, and she only made a profit of about $10,000 in the previous year but received a government subsidy of $30,000. Ms Wang said that she paid for the business by cheque and paid $290,000 to purchase it from a Chinese couple. Her aunt is in charge of the business, and they employed two to three Chinese staff. Her aunt is the partner of Mr Chen. Ms Wang told the Department officer that her aunt is a relative from her mother’s side and when she and Mr Rocca first moved in together, they rented the house owned by her relatives before moving to Box Hill North. They do not own any property together and both owned cars before they met each other.
Ms Wang told the Department officer that she and Mr Rocca use their joint bank account for daily life expenses, including dining and grocery shopping, and Mr Rocca’s income was paid into his personal account. He gave her between $1,500 and $2,000 cash per month and sometimes she deposited this into the joint bank account, but she also has her own bank account. Since living at the back of the fish and chip shop, the rent is covered by the business, but other bills are separated into residential and business expenses. Mr Rocca and Ms Wang live with Ms Wang’s daughters. When they were living at Box Hill North, she and Mr Rocca shared a bedroom, the girls shared another bedroom, and the third bedroom was used as a study. In the current accommodation there are only two bedrooms. Mr Rocca and Ms Wang share one bedroom and the children share the other.
Ms Wang said that Mr Rocca works flexible hours, but normally from Monday to Friday with no overtime on the weekend. They usually have dinner together. Ms Wang does the cooking. She looks after the children more than Mr Rocca and she drives them to school. The children go to public schools and so there was no school tuition fees payable, and the daily expenses are paid from the joint bank account. Mr Rocca often purchased her daughters’ books.
Ms Wang said that she had previously applied for a protection visa which was refused. She noted that she previously had a student visa and said that she was holding a subclass 457 work visa that she voluntarily asked to be cancelled because she gave up her job when they planned to marry. Enquiries that we subsequently made of Department records confirmed those details.
The Department officer who interviewed Ms Wang told her that there was information held by the Department indicating that the relationship between Ms Wang and Mr Rocca was not genuine and might be contrived for visa purposes. It was also noted there was information received that indicates that Mr Rocca and Ms Wang were not living at the same address. No further particulars were provided about this.
Ms Wang is recorded as responding that they were living at the same address and sleeping in the same bed and that the relationship is genuine.
Mr Rocca was asked similar questions by the Department officer and his answers were similar and consistent with the answers given by Ms Wang. He said that his income varied and that he earned between $800 and $1000 per week. He also stated that they used the joint bank account for meals and groceries and that he contributed some money to the daily expenses by giving Ms Wang between $1,500 and $2,000 cash per month.
Mr Rocca was also advised that there was information held on the Department file indicating that the relationship between Mr Rocca and Ms Wang was not genuine and might be contrived. Mr Rocca responded that they have been living together in the same place and their relationship was genuine.
Additional information provided to the Department by Ms Wang included an English translation of a letter from Ms Wang’s father stating that Ms Wang and Mr Rocca were ‘husband and wife’ and that he had ‘witnessed their relationship from the beginning when they fell in love to now living in life with full of happiness’. Ms Wang also provided a form apparently signed by the father of her children, Mr Xin Jie Yan, dated 18 July 2018 consenting for each of the children to be granted an Australian visa. In addition, she provided the marriage certificate of the marriage between her and Mr Rocca, birth certificates for her children, copies of invoices from Box Hill North Primary School recorded as being paid from the joint bank account of Mr T Rocca and Ms Wang and a copy of her driver’s licence. She also provided updated details from time to time about her changes in address.
Decision under review
In the decision record dated 28 July 2021, the delegate recorded the documents provided by Ms Wang and proceeded to assess her application for the partner visa by reference to the format as set out in reg 1.15A to assess whether Mr Rocca and Ms Wang were in a married relationship. In relation to the financial aspects of the claimed married relationship, the delegate noted the documentation and information provided but also stated that there are a number of concerns and unexplained circumstances around their finances which raised concerns about whether their finances were shared. The delegate was concerned about how Ms Wang was able to purchase a business on her income, noted that the investment did not include Mr Rocca and stated that, based on the evidence provided and financial discrepancies in that evidence, it appeared that Ms Wang and Mr Rocca must have separate finances that they utilise solely for their own purposes that had been deliberately kept from the Department. On this aspect the delegate concluded:
You and your sponsor claim to have been in a committed relationship for a period of more than three years. The financial evidence provided raises concerns that you have not combined your financial affairs as claimed. I am not satisfied that you and your sponsor have joint ownership of assets and joint liabilities, that you pool financial resources, that you have legal obligations owed to each other, or that you share day-to-day household expenses.
On the nature of the household, the delegate accepted Mr Rocca’s explanation about the different addresses but noted that in the interview where the Department officer put to both Ms Wang and Mr Rocca that there was information indicating that their relationship may be contrived and was not genuine, they showed no further concern or surprise at the allegation and simply responded that the information was not true. Even though the delegate accepted that there was evidence of common addresses in certain documentation, the delegate was not satisfied that this provided sufficient evidence that Ms Wang and Mr Rocca actually ran a household together. The delegate concluded that she was not entirely satisfied that they were residing together.
In relation to the social aspects of the relationship, the delegate noted that there were only four guests in attendance at the wedding, there was little evidence about Mr Rocca and Ms Wang interacting with the broader community or travelling together as a married couple. The delegate also found there was no evidence detailing how Mr Rocca was involved in the daily activities of Ms Wang’s two children and as such there was very little evidence that after three years of marriage, they had developed social connections and involvement with each other’s respective families.
On the nature of their commitment to each other, the delegate noted that Ms Wang had provided limited detail about how the relationship had developed from their first meeting to when they became engaged in February 2018. At interview, the delegate noted that Mr Rocca also provided only basic information about how the relationship had developed and limited detail about the aspects of Ms Wang’s personal circumstances. During the interview, and in her application, Ms Wang had asserted that the father of her children, Mr Yan, had abandoned her, yet Mr Yan had provided signed consents which were lodged with the Department and there was no explanation as to how Ms Wang was able to track him down to complete these documents. It was also noted that Mr Yan’s driver’s licence (which had been provided with the consent forms) states he was residing at the same Reservoir address, where Ms Wang had been living. The delegate was concerned that Ms Wang had not been entirely truthful in regard to her ongoing contact with Mr Yan as the father of her children. The delegate concluded:
Overall, I contend that this application has been carefully crafted to give the appearance that you and your sponsor are in a genuine and ongoing relationship. However, I am not satisfied that the evidence demonstrates that you are in a genuine and ongoing spousal relationship and assert that you have both contrived a relationship for the purposes of this migration application and securing a permanent visa.
In summary, the delegate concluded that there was not sufficient information to demonstrate that Ms Wang was the spouse or de facto partner of Mr Rocca. Because Ms Wang, being the primary applicant, did not satisfy the criteria for a partner visa in cl 820.211, her children, who are secondary applicants, could not meet the secondary criterion. The applications for the visas under Subclass 820 were therefore refused. Furthermore, the delegate found that the applicants did not meet the requirements of Subclass 801. These applications were also refused.
Ms Wang lodged a review with this Tribunal on 17 August 2021. The application for review was lodged by migration agent, Ms Jie Zhan, also from Australia Visa Link Pty Limited.
PROCEDURAL ISSUES
Other than the application for review and identity documentation, there were no other documents lodged in support of the application at the time the application for review was lodged.
On 4 November 2022 the Department provided to the Tribunal documents said to be relevant to the review. The documents included a report dated 22 August 2019 from another file, being an Alert Advice about a ‘Contrived relationship syndicate: Chinese nationals linked to Regarding House brothel and associates’. According to the report, the partner fraud and risk management team had identified 35 applications with links to the Regarding House brothel and its associates and that the applicants were predominantly Chinese nationals. Some applications had been finalised and others were unfinalised at the time of the report. Several alleged professional facilitators were identified, which included Melbourne-based registered migration agents, Ms Jie Zhan and Ms Della Lee, both employed by Australia Visa Link, also known as Oz Visa Link. Other alleged possible facilitators relevantly included registered migration celebrant Ms Li Huang and members of the Rocca family, including Mr Aldo Rocca and the sponsor in this review, his son Trent. In summary, the report identified similarities between these various applications which suggested that the applications may be the subject of contrived relationships for the purposes of a migration outcome. The application made by Ms Wang was identified as such an application because Mr Aldo Rocca had provided a statutory declaration in support of the application and his son was identified as a sponsor.
In addition to this, the Department provided a file note, which can be colloquially described as a confidential ‘dob-in’, recording details of information provided by a person who wanted to remain anonymous in which it was alleged that Mr Trent Rocca said he and his father are paid for their involvement in these visa applications.
Both documents from this file were the subject of a non-disclosure certificate under s 376 of the Act.
Section 376 of the Act provides that the Minister or their delegate has the power to issue a certificate where there is information in documents on the Department file certifying that it would be contrary to the public interest, for reasons that must be stated in the certificate, for the information to be disclosed. The Tribunal then has a discretion, taking into account the reasons for the certificate and any advice provided by the Department about the certificate, whether to disclose the information in the documents the certificate applies to, to the applicant.
We formed the view that the certificate was validly issued and decided not to release a copy of the Alert Advice or the dob-in for the public interest reasons described in the certificate. The Alert Advice included confidential details about a number of different parties who were not the subject of or relevant to this review. Because those details were integral to the Alert Advice, we formed the view that it would be extremely difficult to provide a redacted copy of the document. The allegations contained in the Alert Advice were relevant to the review and we provided the material particulars of this adverse information to the applicants in correspondence. We decided not to release the file note relating to the ‘dob-in’ because to do so would disclose the identity of the person who made the allegation, and it was clear the information was provided to the Department on the condition of confidentiality, which was not unreasonable in the circumstances of the case. We formed the view that this allegation was relevant to the review, but it would be best raised at the hearing directly with Ms Wang and Mr Rocca so that the nature of the allegations could be discussed.
On 18 November 2022, we invited Ms Wang to give evidence and present arguments at a hearing before us in Melbourne scheduled for 7 December 2022. In the hearing invitation, we requested that Mr Rocca be available to give evidence. We also requested that Ms Wang provide all documents that she intended to rely on to support her application by 30 November 2022. The invitation noted that the decision made by the Department sets out the reasons for the decision and that Ms Wang should have regard to these, and any changes in her circumstances, in providing documents and in preparing for the hearing.
On 22 November 2022, Ms Wang provided a response to the hearing invitation, recording that Ms Wang and Mr Rocca would attend the hearing in person to give evidence. It was also noted that their migration agent, Ms Zhan, would be participating in the hearing. The document was lodged by Ms Zhan on behalf of Ms Wang.
By letter dated 23 November 2022, we provided details of the certificate to the applicant, and invited the submissions, including about the certificate’s validity. We provided the following information:
The thrust of the information is that an alleged contrived relationship syndicate related to the brothel, Regarding House brothel, has been identified. The purpose of the syndicate is to facilitate migration to Australia by means of a fraudulent or contrived relationships. The Department investigation has identified applications linked to cases where Ms Jie Zhan is the representative, where Li Huang is the marriage celebrant and where Mr Aldo Rocca has provided a Form 888 witness statement in support of the application.
This information is relevant to the review because it raises concerns whether your relationship with Mr Trent Anthony Rocca is a contrived relationship furthering the purposes of the activities undertaken by the syndicate. The Tribunal may conclude that you did not have a genuine spousal relationship with Mr Trent Anthony Rocca and you were never his spouse as defined in the Migration Act. The Tribunal may then decide that you do not meet the requirements for the grant of the Partner visa for which you have applied.
By letter dated 30 November 2022, the Tribunal requested that the two witnesses who provided statutory declarations in support of the application, Mr Aldo Rocca and Mr Chen, be available to attend the hearing to give evidence. The Tribunal requested that information about their availability and contact numbers be provided by 9am (Australian Eastern Daylight time) on 5 December 2022.
No further documents or submissions were provided by Ms Wang by 30 November 2022, nor did the Tribunal receive confirmation about the availability of Mr Chen and Mr Aldo Rocca as requested. On 5 December 2022, the Tribunal sent an email to Ms Wang via Ms Zhan as her authorised recipient, again seeking advice as to whether Mr Chen and Mr Aldo Rocco were available to attend the hearing on 7 December 2022. Ms Zhan responded to this email later that day advising that they would not be attending the hearing.
Later on 5 December 2022 the Tribunal also received numerous documents in support of the review application lodged by Ms Zhan on behalf of Ms Wang, including updated bank statements from the joint account, utility bills issued to Ms Wang and Mr Rocca, a copy of a letter to Ms Wang from Medicare advising that her personal data had been compromised and receipts for payment of rent said to have been received from Ms Wang and Mr Rocca for premises at [address 1], Balwyn North.
An amended response to the hearing invitation was also lodged with the Tribunal by Ms Zhan on 5 December 2022, noting that Ms Wang would not be participating in the hearing and that she consented to the Tribunal making a decision on the papers. It was noted that Mr Rocca would not attend the hearing and that Ms Wang had ‘ended’ Ms Zhan’s representation of her. Ms Zhan provided a form signed by Ms Wang noting that she had withdrawn the authorisation of Ms Zhan to receive correspondence or to act on her behalf. Ms Zhan provided a document said to be from Ms Wang referred to as her ‘personal statement’. The document was both in English and Chinese. The English version of the document is as follows (errors in the original):
My name is Juan Wang. I would like to inform that my husband, Trent Rocca and I will not be able to attend the hearing on 7 December.
Trent and I had a fight, he told me he won’t be attending the hearing with me. He has left our home, and returned to his parents’ place. I haven’t been able to contact him since last Friday. I am sorry to provide such a short notice, but I don’t think it’d be a good if I attend the hearing while we are having a fight.
As for the adverse information received by the immigration department about an alleged contrived relationship syndicate related to a brothel. I have no idea what this information about is. Neither Trent and I are involved in any criminal conduct such as a brothel. I am suspecting my personal information has been hacked as I am the client of Medibank. I have been informed by Medibank that my personal information has been realised to the dark web by the criminals. This is the only thing I can think of that relates to the alleged information.
I have provided other documents about our relationships.
By letter dated 5 December 2022, the Tribunal noted that Ms Wang and Mr Rocca would not be attending the hearing and confirmed that the hearing would proceed on 7 December 2022. The Tribunal advised that it expected Ms Wang to appear. Ms Wang was reminded to attend the hearing by an SMS sent from the Tribunal’s automated services on 6 December 2022. On that day, a Tribunal officer contacted Ms Wang to enquire if she was going to attend the hearing. Ms Wang repeated the content of her personal statement to the officer and stated that she had made arrangements to work on the following day (the day of the hearing) but that she would think about whether she would attend. The Tribunal later that day emailed Ms Wang asking that if she did not attend the Tribunal hearing, did she consent to the Tribunal making a decision on her application for review based on the materials already provided. Ms Wang responded to this email as follows (errors in the original):
I’m confirm that I am unable to attend the hearing tomorrow and I am certainly sure I can accept the paper results and I swear I didn’t do anything illegally! My identity was stolen from Medibank and Optus recently. I am really innocent.
Having regard to this information, we cancelled the hearing scheduled for 7 December 2022.
Because we were not able to discuss the contents of the ‘dob-in’ letter with Ms Wang and Mr Rocca at a hearing, the material particulars of this information were provided to Ms Wang in a letter dated 8 December 2022. It was noted that the Department of Home Affairs had received an allegation in August 2019 from a credible source who wished to remain anonymous that Ms Wang’s relationship with Mr Trent Rocca was contrived and that Ms Wang, or a person on her behalf, was paying Mr Rocca to sponsor Ms Wang for migration to Australia. It was also noted that the person making the allegation claimed to have knowledge that Mr Aldo Rocca had been paid money to bring people into Australia illegally using the partner visa program. It was stated that this was relevant to the review because if this information was correct, it may lead the Tribunal to conclude that Ms Wang did not and does not have a genuine spousal relationship with Mr Trent Rocca. Ms Wang was given until 22 December 2022 to respond to or provide comments on this information or to seek an extension of time to respond. Ms Wang was advised in the Tribunal’s letter that if she requested to appear at a hearing to explain or respond to this information, we would organise a hearing in January 2023 to give her this opportunity. We also requested that Ms Wang provide copies of bank statements from her personal bank accounts from August 2017 to the date of the letter.
Ms Wang did not respond to the Tribunal’s letter by 22 December 2022 or at all, nor did we receive a request for extension of time to respond. The above information was requested pursuant to ss 359A and 359(2) of the Act. Ms Wang’s failure to respond or comment by the due date resulted in her losing her entitlement to appear before us to give evidence and present arguments. We have therefore proceeded to consider Ms Wang’s application for review and determine the issues in dispute based on the material before us.
EVIDENCE SUBMITTED TO THE TRIBUNAL
As can be seen from the above, Ms Wang provided a significant number of documents to support her claim. These documents were provided at the time of the application and later, in response to queries raised by the Department or to notify the Department of her change circumstances or address. She and Mr Trent Rocca provided written statements in support of the application for the visa. The substance of these statements is set out above. They were provided to the Department around the time of the application, with a further short statement provided by Ms Wang in March 2021. Mr Trent Rocca provided a statutory declaration in May 2021 explaining why there were different addresses notified on official documents. She also provided statutory declarations or letters from family and relatives.
Prima facie, these documents support her claim to be in a genuine spousal relationship with Mr Trent Rocco from about March 2020.
By the time this matter came before us, we were on notice of allegations made about a contrived relationship between Ms Wang and Mr Rocca. It was apparent that these allegations had not been raised directly with Ms Wang, other than in general terms. While the allegations were serious and raised concerns about what appeared to be a common modus operandi used to facilitate visa fraud, the allegations were untested and none of the parties alleged to be implicated in Ms Wang’s case had been questioned about the alleged scheme. There may have been explanations for the similarities. It should also be noted that Ms Wang had not provided to the Tribunal any updated evidence about her relationship with Mr Trent Rocca. This was important as a critical issue for determination in this case is whether Ms Wang and Mr Rocca are in a genuine spousal relationship at the time of the decision.
Because we could not be satisfied about these matters, we invited Ms Wang to appear before us to give evidence and present arguments relating to the issues arising in relation to the decision under review under s 360 of the Act. If the Tribunal is unable decide the review in the applicant’s favour on the basis of the material before it, it must invite an applicant to appear (refer subs 360(1) and (2)(a) of the Act).
On 5 December 2022 Ms Wang provided documents in support of her claim, including bank statements for the joint bank account, utility statements and rental payments for the Balwyn North property, her individual tax return for 2021–2022 and copies of receipts for various expenditures. She also provided the personal statement extracted in full earlier in these reasons. As previously noted, this statement was to the effect that she and Mr Rocca had had a fight, he had left the home and he would not be attending the hearing.
Other than these brief statements, Ms Wang did not provide to the Tribunal updated statements about her relationship with Mr Rocca. Nor did she provide updated statements from her claimed spouse, Mr Trent Rocca, from the witnesses who provided statutory declarations in support of the application (Mr Aldo Rocca and Mr Ke Wang Chen) or from any other witnesses.
The statutory declarations provided by Ms Wang to the Department from Mr Aldo Rocca and her relative Mr Chen and the letter from Mr Chen about the living arrangements for Ms Wang and Mr Rocca are now over four years old. The statements provide little detail about the nature of the claimed relationship between Ms Wang and Mr Trent Rocca and, in the absence of these witnesses being available to give evidence about the matters referred to in their statements, this evidence carries little weight. The Tribunal specifically requested that these witnesses be available to give evidence about their statements. As already noted, we were advised prior to the hearing that Mr Aldo Rocca and Mr Chen would not attend the hearing. There was no explanation as to why this was the case.
The Tribunal was provided with statements for the joint account for the period 31 December 2020 to 25 May 2021 and from 1 July 2021 to 30 June 2022. These statements showed that Ms Wang transferred a total of approximately $60,000 into this account through regular payments almost every week. There were six cash deposits totalling $16,000 from Ms Wang in the period 21 January 2021 to 10 May 2021. In the period 12 September 2021 to 26 June 2022 there were nine monthly deposits recorded as transfers from ‘T A Rocca’ totalling $22,500 described as ‘rent’ and, on 27 November 2021, a transfer of $3,000 described as ‘Xmas’. There is a transfer into the account on 16 August 2021 of $10,000 recorded as being from Shaojun Chen as ‘lend’. There are 14 monthly payments to Ray White Balwyn commencing 11 May 2021 to June 2022 for $2,694 (with two payments of $2,394), each described as [address 1]. These statements show regular disbursements for the payments of bills (Telstra), car parking (Wilson Parking), groceries (Coles, Woolworths) and various fast-food outlets among other disbursements.
Ms Wang provided monthly rental receipts from Ray White Real Estate in Balwyn from 18 October 2021 to 17 October 2022 for rental of premises at [address 1], Balwyn North with the tenants recorded on the receipts as ‘Ms Wang and Mr Rocca’. She also provided utility bills for this address in the joint names of Ms Wang and Mr Rocca and a copy of a receipt from a camera store and from the Box Hill primary school but there is no evidence about the relevance of these receipts. There is also a toll notice for Mr Rocca showing his address as the Balwyn North property.
The tax return for Ms Wang for the financial year ended 30 June 2022 records her taxable income as $61,544, her postal address as the Balwyn North property and records ‘Mr Trent Rocca’ as her spouse.
Ms Wang did not provide any other documentary evidence to corroborate the claimed relationship with Mr Trent Rocca, such as updated telephone records, photographs or statements from third parties attesting to the relationship. She did not provide, nor has she ever provided, statements for their individual bank accounts. This is particularly relevant given the finding of the delegate that he was not satisfied that Ms Wang and Mr Rocca pooled their financial resources. This was an issue in dispute raised in the delegate’s decision and, while the financial aspects of a relationship may not always be determinative they are critical matters that need to be considered by decision-makers in assessing whether parties satisfy the definition of a spouse. The hearing notice specifically invites applicants to consider and address the issues raised in the delegate’s decision. This is because the Tribunal, despite hearing the matter afresh, will generally accept those matters accepted by the delegate and examine more closely those matters that were contentious. This is consistent with the wording of s 360 which provides that applicants are invited to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review.
ANALYSIS OF THE EVIDENCE
Ms Wang has provided documents said to evidence that she is in a genuine spousal relationship with Mr Rocca. These documents primarily comprise joint bank statements for most of the period since their marriage to 30 June 2022, copies of utilities accounts in their joint names and rental receipts or leases in their joint names. Ms Wang and Mr Rocca do not own any joint assets, nor do they claim that this is the case. It is apparent from the bank statements provided that both maintain separate bank accounts, and this is acknowledged in the statements provided by both. Apart from rental and payments for utilities for these properties, many of the other payments from the joint accounts, including groceries and payments for other items, could relate to expenses for Ms Wang and her children alone, Mr Rocca or both of them jointly and the fact that payments are made on this account does not, of itself, evidence joint liabilities, joint living arrangements or a genuine combining of funds.
There is evidence showing rental receipts and leases in the names of Ms Wang and Mr Rocca and this evidence corroborates their claim that they have been living together since March 2018. While there is evidence that Mr Rocca’s address at Wheelers Hill, being the address of his parents, was recorded on his licence and in his myGov records, Mr Rocca provided evidence to the Department that he changed these records. On the face of it, these records substantiate the claim that Ms Wang and Mr Rocca have been living at the same address. However, evidence that parties may be or are living together does not on its own establish that those parties are living together in a married relationship. Apart from the evidence of Mr Aldo Rocca and Mr Chen, there is little independent evidence of their cohabitation as a married couple, as claimed. Notably, there is no evidence about the nature or social aspects of their relationship from other parties.
The photographs and details of telephone calls between Ms Wang and Mr Rocca are limited. The tax returns recording Mr Rocca as Ms Wang’s spouse, the health insurance policy including Mr Rocca as a beneficiary and the RACV insurance policy adding him as a driver are not conclusive and carry little weight. Notably, the insurance details can easily be changed administratively at any time after being put in place.
The bank statements raise a number of questions about the source of the cash deposits into the joint account. Mr Rocca states that he contributed approximately $1,500 to $2,000 per month into the account. This is consistent with the cash deposits paid in the period December 2018 to June 2019 of $24,550. However, apart from the statement made by Ms Wang and Mr Rocca about this, there is nothing to otherwise independently verify the source of these funds or that the funds have been paid by Mr Rocca.
In the most recent bank statements provided, the statements record debits of $117,389.39 from the account in the period 31 December 2020 to 30 June 2022, including for rent. The statements also show that $122,871.57 was credited to the account in the same period of time. Ms Wang is shown in the statements as having contributed $65,593.73 of these deposits and Mr Rocca is shown as having contributed $25,500 (said to be for rent and ‘Xmas’). There are further amounts contributed of just over $16,000 in cash deposits, the cash deposit of $10,000 described as ‘lend’ from Mr Chen, with the balance being refunds and payments from retailers and others and several deposits from Uber and DoorDash. It is unclear from these most recent statements the extent of the pooling of finances and whether all amounts paid from the account relate to joint liabilities. The statements show $37,116 was paid from the account for rent and bond for Balwyn North for the period May 2021 to June 2022 but this does not compel a conclusion that this rental was a joint liability because they both lived there. Ms Wang has not provided the lease for this property, although we accept she has provided copies of documents that record the Balwyn North address as her address and as the address for Mr Rocca, such as utility bills, her tax return, rental receipts and a toll receipt for Mr Rocca. Such records may be consistent with evidence that two parties are living together, although the fact that parties are living together does not necessarily mean that they are living as a married couple. These records may be equally consistent with the notion that this is a contrived relationship where the parties have changed the records of their address to facilitate the narrative of being in a genuine spousal relationship. The difficulty in this case is that Ms Wang has declined to attend a hearing so that the Tribunal could have the benefit of hearing her explanation about these matters and issues of concern that the Tribunal has raised in correspondence with her.
Mr Rocca’s contribution to the joint bank account during the 18-month period from 31 December 2020 to 30 June 2022, save for the period 26 May 2021 to 30 June 2021 (for which no statement was provided), is modest. The statements show Mr Rocca’s first deposit to the joint account during that period as not occurring until 12 September 2021 and the $25,500 Mr Rocca is shown as contributing from then did not cover the cost of the rent the couple provided evidence that they were paying for the Balwyn North property.
There are also gaps in the financial information provided. For instance, not all the bank statements for the joint account have been provided and no bank account details have been provided for Ms Wang or Mr Rocca in respect of their personal accounts. Yet it is clear that they both maintain personal accounts. This is apparent from the joint bank statements, from Ms Wang’s 2019–2020 and 2021–2022 individual tax returns which both have the account number and name, being in her name only, for a bank account held with the ANZ bank in Preston and both state there are two accounts held by one person, presumably Ms Wang, with the ANZ bank. Ms Wang’s tax return for 2019–2020 recorded her taxable income as $0 and her tax return for 2021–2022 recorded her taxable income as $61,544, net income as $51,421.16 and her employer as Miss Me Dessert Pty Ltd. Ms Wang has provided no information about how she was able to finance the purchase of the business through Miss Me Dessert Pty Ltd.
This also appears to be the case in relation to Mr Rocca because transfers are recorded from him into the joint account, presumably from his personal account, for rent. There is no recent tax return provided for Mr Rocca detailing his income, although according to the Notice of Assessment from the Australian Tax Office for Mr Rocca for the financial year ended 30 June 2020, his taxable income was $42,562 and net income was $37,182.35. Ms Wang’s 2019–2020 tax return records Mr Rocca’s taxable income also as $42,562. Ms Wang’s 2021–2022 tax return records Mr Rocca’s taxable income as $30,000. The Tribunal was not provided with any explanation for the significant reduction in Mr Rocca’s already modest taxable income recorded in Ms Wang’s most recent tax return. Ms Wang did not provide the Tribunal with any Notices of Assessment from the Australian Taxation Office in relation to her taxable income for any financial year.
Ms Wang notified of a change of address to Balwyn North in August 2021. However, as noted above, the joint account records rental payments for the Balwyn North property from 11 May 2021. What is unexplained is precisely when and why Ms Wang and Mr Rocca moved from the Prahran address in May 2021 to Balwyn North, given the evidence that there was a unit at the back of the shop in which they were apparently living after they moved out of the Box Hill property in August 2019 to save money.[4] In the telephone interview of Ms Wang and Mr Rocca on 21 May 2021 both said that they were living at the back of the shop in Prahran. Neither mentioned that they had paid rental for the Balwyn North property from 11 May 2021 or that they had or were proposing to move into other rental accommodation.
[4] Statement of Ms Juan Wang dated 2 March 2021. Department File Reference CLD20216504846.
According to an email provided by Ms Wang, Mr Rocca moved back to his parents’ home just prior to the hearing. There is no evidence to explain whether this is a short-term or longer-term separation.
There is no updated evidence provided about the nature of the household and the commitment between Ms Wang and Mr Rocca, nor is there updated information provided about the social aspects of their relationship. The interviews with the Department officer on 21 May 2021 provide some insight about the relationship between Ms Wang and Mr Rocca but these interviews are of limited assistance. While the evidence of Ms Wang and Mr Rocca as recorded in the interviews is generally consistent, the interviews were general in nature and brief. When Ms Wang and Mr Rocca were asked open ended questions about particular aspects of their relationship and they respond in general terms, neither was asked to expand or to explain certain issues, such as why Ms Wang made such a significant investment in a business alone. It was put to both of them that there was credible information that their relationship was not genuine and was contrived but unfortunately no further details were provided. Both denied this. The delegate commented unfavourably in the decision record about the lack of surprise in the responses to this question but in our view, the generality of their denials cannot be criticised because of the lack of specificity in the particulars provided.
When reviewed as a whole, the records of the telephone interviews are unpersuasive either way in assessing whether Ms Wang and Mr Rocca were in a genuine spousal relationship at that time. The information provided by Ms Wang and Mr Rocca in the interviews is broadly consistent with each other and the information provided in the statements submitted in support of the application. This may support Ms Wang’s contention that she and Mr Rocca were, and still are, in a genuine relationship. On the other hand, the interviews are general in nature and the officer did not test the credibility of the claims made by Ms Wang about the relationship, which is concerning given the claim made in the interview that there were credible sources throwing doubt on whether the relationship is genuine and may be contrived. In other words, the interviews were somewhat superficial and brief and the responses by Ms Wang and Mr Rocca were very similar to the details provided in the statements, there was little deviation or new detail.
On the face of it, certain of the financial information and the recorded details of where Ms Wang and Mr Rocca lived from March 2018 support the contention that they have been living together and, therefore have been in a spousal relationship since March 2018. However, there are significant gaps in the information provided, such as statements for the personal bank accounts of Ms Wang and Mr Rocca, an explanation about the cash payments into the joint account and an explanation as to why Ms Wang made such a significant investment in a business without any financial commitment from Mr Rocca within six months of them marrying. No updated statements for the joint account have been provided after June 2022 and we have not been provided with a lease agreement for the Balwyn North property.
There is limited evidence from third parties to corroborate Ms Wang’s claims of being in a genuine spousal relationship with Mr Rocca and, after nearly five years, this is surprising. It is relevant to note that despite the Tribunal’s request that the witnesses who provided statutory declarations in support of the application attend the hearing to give evidence about their statements, both declined to do so. This not only diminishes the weight that can be placed on those statements but raises concerns about why these parties were not prepared to give evidence to the Tribunal to verify the statements made in statutory declarations.
The statement of Mr Rocca is unconvincing because it includes confused English expression, unusual phrasing and occasionally uses artificial or formal language such as ‘harmonic’ and ‘the seed of love was planted in the depths of our hearts’. Mr Rocca also declined to give evidence and Ms Wang’s assertion that they had had an argument just prior to the scheduled hearing but after being notified about the adverse information suggesting that their relationship may be contrived, raises concerns about the credibility of the claims made by Mr Rocca in his statement.
The information provided by the Department about the results of investigations undertaken into a number of alleged contrived relationships claimed by Chinese nationals to facilitate migration outcomes, raises significant concerns about the nature of the relationship between Ms Wang and Mr Rocca. The fact that Ms Wang has used migration agents that are potentially implicated in visa applications using similar evidence, a small group of marriage celebrants and third-party witnesses that are related to other applications does not, of itself, compel the conclusion that the relationship between Ms Wang and Mr Rocca is contrived. However, this information, together with the deficiencies of the evidence identified above, the further allegation made confidentially by a third party against Trent and Aldo Rocca and the fact that neither Ms Wang nor Mr Rocca are prepared to attend a hearing to explain these inconsistencies or comment on or respond to this adverse information, leads to a strong inference that the claimed spousal relationship between Ms Wang and Mr Rocca is not genuine.
Ms Wang was invited to attend a hearing to present evidence and arguments in support of her claim by notice dated 18 November 2022. She responded, through her representative, that both she and Mr Rocca would be attending the hearing to give evidence. She did not nominate any other witnesses to give evidence and by letter dated 30 November 2022, we requested that both witnesses who had provided statutory declarations in support of the application for the partner visa be available to give evidence at the hearing. We were subsequently notified that neither witness would participate in the hearing to give evidence and there was no explanation provided about this. After the Tribunal provided Ms Wang with particulars of adverse information contained in the report from the Department, Ms Wang did not provide any further evidence or submissions in support of her claims by 30 November 2022, as requested in the hearing invitation, and did not provide any substantive response or advise the Tribunal of her intentions in advance of the hearing until 5 December 2022. Notably, she advised, through her representative, that she would not be attending the hearing, Mr Rocca would not be attending the hearing and that she consented to the Tribunal making a decision based on the material that had been lodged. She also lodged, through her representative, the updated financial material earlier outlined in these reasons. After lodging this documentation, Ms Wang withdrew her instructions from her representative and thereafter she was unrepresented. The Tribunal, through a Tribunal officer, requested that Ms Wang attend the hearing, but she declined to do so and confirmed that she was prepared to have the review determined on the basis of material lodged.
Ms Wang’s only explanation for the failure to attend the hearing is the claim that she and Mr Rocca had an argument and he had returned to his parents’ home and she did not want to attend while they were fighting. She was again asked to attend by a Tribunal officer at our request but stated that she had work on the day of the hearing, although she would think about it. She again declined to attend the hearing and confirmed that the Tribunal could make a decision based on the material that had been provided. Her only explanation for the adverse information was that she is in a genuine relationship with Mr Rocca, they had lived together, neither she nor Mr Rocca were involved in any criminal conduct such as a brothel and it was possible that her personal information held by Medibank or Optus may have been illegally accessed and caused the concerns. It is unclear how this latter explanation would be relevant to the adverse information or to the claim that she and Mr Rocca were not in a genuine spousal relationship.
This situation is less than ideal in circumstances where there are serious allegations made about a contrived relationship, that not only impact Ms Wang but those in respect of whom it is alleged wrongfully facilitated potential migration fraud. Faced with these concerns, we provided further particulars of the adverse information provided by a third-party, we requested further information from Ms Wang about her personal bank accounts and we gave her another opportunity to attend a hearing to comment or respond to this adverse information. Ms Wang did not respond and thereby lost the entitlement to a hearing.
Under the Act, Ms Wang has the choice of whether or not to participate in a hearing. The Tribunal has the power to summons documents and parties to give evidence, but this power is used sparingly, particularly when it is the applicant’s obligation to satisfy the Tribunal that he or she meets the criteria. Relevantly, in partner cases an applicant will generally have the necessary information or documents in their power, custody or control relevant to the criteria. When witnesses provide evidence in support of a claim and that evidence is provided by the applicant, it is generally incumbent on the applicant to make those parties available to give evidence if the Tribunal so requests. If those parties are not available to give evidence and where there are inconsistencies, questions or gaps in the evidence, the Tribunal may give little weight to any written statement unless there is an opportunity to test this evidence and verify the claims made. It would be on rare occasions that the Tribunal would compel a witness put forward by an applicant to give evidence. One such instance may be where the evidence of that witness is highly relevant and possibly determinative and there is an explanation as to why the witness is not prepared to attend voluntarily and it is outside the applicant’s control to facilitate their attendance.
100. In this case, we would have been considerably assisted if we were able to ask questions about the written statements provided by Ms Wang, Mr Trent Rocca, Mr Aldo Rocca and Mr Chen. We would have also had the opportunity to ask questions about the documents provided and about the circumstances of Ms Wang and Mr Rocca. We could also have requested and reviewed further information relevant to the contested issues.
101. In summary, the Tribunal’s task is to make findings of fact about critical matters based on the material before it. This includes material provided to the Department and any new material provided to the Tribunal. If the Tribunal is unable to make a favourable decision based on this information, it must invite an applicant to appear at a hearing to present evidence and arguments. This is the opportunity for an applicant to explain their case, to provide any further relevant information and, if necessary, for the Tribunal to understand aspects of the evidence already provided which is confusing or falls short of providing the required level of satisfaction about the claims made on whether the applicant meets the requirements of the visa. If an applicant does not attend a hearing to present evidence and arguments, the Tribunal must then make a decision based on the material before it without having the benefit of further evidence and arguments.
102. In Jones v Dunkel (1959) 101 CLR 298 it was held that a court may draw a negative inference against a party who fails to call a witness where the witness might be expected to support the case being put by the party. There is some controversy about whether this rule should or can be applied in merits review proceedings before this Tribunal.[5] As noted in Re Rogers and Secretary, Department of Social Security[6] in cases where an applicant is unrepresented the decision-maker should exercise discretion in drawing such an inference. In our view, it would be important for an unrepresented applicant to understand that such an inference could be drawn in circumstances where they fail to attend, or they fail to make available other witnesses to give evidence based on material already provided.
[5] Refer Administrative Appeals Tribunal, Dennis Pearce, LexisNexis, fifth edition at [9.20].
[6] (1991) 24 ALD 720.
103. This is not a case where the applicant was unrepresented and, according to the documentation filed, it appears that Ms Wang withdrew instructions from her representative prior to the hearing. However, we accept that a cautious approach should be taken in cases such as this and, in circumstances where an applicant has not been given a clear warning that a negative inference may be drawn, it is undesirable for the Tribunal on merits review to take such a strict evidence-based approach. This is consistent with the decision in SZKUI v MIAC [2007] FMCA 1387 at [19] where the Court commented unfavourably on the Tribunal imputing a motive to the applicant for choosing not to attend the hearing where the only information to support this was the failure of the applicant to reply to the invitation or to appear. Accordingly, we have not drawn a negative inference from the failure of Ms Wang to appear but rather have made our findings on the basis of the material provided by Ms Wang and by the Department and the inconsistencies or shortfalls and unanswered questions raised in the material before us.
104. Our findings of fact in respect of the evidence and the criteria are set out below.
CONSIDERATION
Issues for determination
105. There is no dispute that at the time of the application Mr Rocca was an Australian citizen, he was over 18 years of age and he was not prohibited from being a sponsor under cl 820.211(2B) of Schedule 2 to the Regulations. Nor is there any dispute that this continues to be the case at the time of our decision. There is also no dispute that Ms Wang held a substantive visa at the time of her application for the partner visa, her substantive visa at the time being a Subclass 457 visa, and as such would also have met cl 820.211(2)(d) of Schedule 2 to the Regulations at the time of the application.
106. The critical issue for determination in this case is whether Ms Wang met cl 820.211(2) at the time of the application and, if so, whether she continues to meet those requirements at the time of our decision for the purposes of cl 820.221(1). This turns on the question of whether Ms Wang is, and was at the relevant time, the spouse of Mr Rocca as defined by s 5F of the Act which further turns on the question of whether they are, and were at the relevant time, in a married relationship.
107. The visa applicant and the sponsor were married on 5 June 2018 and provided evidence of this to the delegate and to the Tribunal. The validity of their marriage is uncontentious. The delegate made a positive finding to this effect. In the absence of evidence to the contrary, we accept the validity of their marriage and find accordingly. However, a lawful marriage is not enough to establish a married relationship for the purposes of the Act.
108. As noted, s 5F of the Act provides that for persons to be in a ‘married relationship’ there must also 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. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship, which includes evidence of the financial and social aspects of the relationship, the nature of the household and commitment of the visa applicant and sponsor to each other.
109. In making this assessment we must consider each of the matters referred to in reg 1.15A. The evidence relevant to the consideration of those matters and our findings are set out below.
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
110. There is no evidence that Ms Wang and Mr Rocca jointly own real estate or major assets or that they have ever done so. There is evidence that Ms Wang made a significant financial investment in a business in late 2018 and that Mr Rocca was not involved in this investment. The evidence of joint liabilities primarily relates to rental payments and utility bills for the rental premises but the question of whether Ms Wang and Mr Rocca were actually living together and, if so, whether they were living together in a married relationship is a contentious issue. If they were not living together, any joint liability for these expenses may have been contrived. If they were living together but not in a married relationship, any joint liability takes on a different quality. It would not be a joint responsibility as part of a shared relationship but rather would have the nature of a joint but independent and separate liability for each party.
111. As observed by the delegate, the evidence suggests that there is limited pooling of financial resources as it is clear that Ms Wang and Mr Rocca each maintain personal bank accounts. The extent to which their financial resources are pooled is difficult to ascertain based on the information provided. There is no evidence that Ms Wang and Mr Rocca owe legal obligations in respect of each other. It is also difficult to ascertain whether the expenses paid from the joint account are shared expenses of daily living in the absence of direct evidence from Ms Wang and Mr Rocca about these matters. There is evidence that both appear to have contributed to the joint account, but the question is whether they contributed with a separate account between them as to expenses incurred and paid from the account. The pooling of financial resources may not be determinative of whether a couple is in a married relationship, and it is simply one of the factors to be taken into account. In this case, there is some evidence that supports the pooling of financial resources but there is also evidence that is counter to this. As such, in the absence of updated and more extensive information about the financial arrangements between Ms Wang and Mr Rocca, we are not satisfied that the evidence provided to date is indicative of a married relationship.
Nature of the household
112. There is little evidence relating to the joint responsibilities of Ms Wang and Mr Rocca for the care and support of Ms Wang’s children. In her statement, Ms Wang claims that Mr Rocca provides support to the children. She claims that he purchases books for her daughters and assists in taking them to school and picking them up from school. This evidence could not be tested by the Tribunal and, for the reasons we have previously outlined, this evidence carries little weight.
113. The Tribunal was also provided with numerous photos of Mr Rocca with the children, but this does not evidence support to them, it merely evidences that Mr Rocca accompanied Ms Wang and her children on various outings prior to and at the time the application for the visas was made. There is no recent information about this, and payment of school fees from the joint account does not, of itself, evidence contribution by Mr Rocca, particularly given the limitations already observed about the joint account.
114. There is little meaningful evidence about the sharing of responsibilities for housework other than what is contained in their statements and referred to in the interviews with the Department officer which, we have noted, was somewhat brief and superficial.
115. The contentious issue is whether Ms Wang and Mr Rocca lived together continuously from March 2018 in a married relationship as is claimed. As already noted, the material provided is consistent with the claim that Ms Wang and Mr Rocca have lived together since March 2018, although there are questions about whether this continued when they allegedly moved to the Balwyn North property in 2021. It is possible that Ms Wang remained living at the shop and Mr Rocca moved to Balwyn North but in the absence of evidence from Ms Wang and Mr Rocca to explain these issues, we cannot form a view. Another possibility is that they lived together but not in a spousal relationship. Without further evidence, including those matters about the social aspects of their relationship and their commitment to each other, we are not satisfied that Ms Wang and Mr Rocca lived continuously in such a relationship.
116. On balance, having regard to the available evidence, we are not satisfied that the nature of the claimed joint household of Ms Wang and Mr Rocca is indicative of a married relationship.
Social aspects of the relationship
117. There is evidence that Ms Wang represented to her health insurer that Mr Rocca was her spouse. There is also evidence that Ms Wang represented to the Australian Tax office that Ms Rocca was her spouse. There is otherwise very little evidence from independent third parties about the social aspects of their relationship. Mr Aldo Rocca and Mr Chen were not available to give evidence, the photographs provided were very limited and there is little evidence of joint social activities undertaken by them as a couple. For example, there were no photos of Mr Rocca and the visa applicants socialising with any of Mr Rocca’s friends or at the family home of his parents, despite Mr Rocca’s claims at interview that they frequently visited the family home. We also note that only four guests attended their civil wedding ceremony in Melbourne, described at interview by Mr Rocca as his uncle and “three friends of hers.” Mr Rocca was 23 years old (about to turn 24) at the time of their wedding but no explanation has been provided to us as to why his parents and siblings and none of his friends attended his wedding. There is no updated information about the social aspects of the relationship between Ms Wang and Mr Rocca and, given that they have allegedly been in a married relationship nearly five years, one would expect that Ms Wang would be able to provide significant evidence in support of this aspect of her claim.
118. In considering the evidence made available to us, we are not satisfied that the social aspects of the relationship of Ms Wang and Mr Rocca are indicative of a married relationship.
Nature of persons’ commitment to each other
119. Having regard to the available evidence, we are not satisfied that the relationship between Ms Wang and Mr Rocca has endured for nearly five years. We are not satisfied that they have lived together in a spousal relationship for this period, nor are we satisfied that there is persuasive and detailed evidence about their emotional support and commitment to each other. The only evidence provided is the statements that they both made at the time of the application, the subsequent emails of Ms Wang and statements made in the interview with the Department officer. This evidence has not been tested, which is particularly relevant given the nature of the allegations made in the adverse information. The claims made in writing about their commitment to each other and the support provided is general. They both state that they want to buy property but there is no evidence about steps taken towards this. Relevantly, the Tribunal could not question Ms Wang and Mr Rocca about potential plans and, as such, the evidence about these matters remains superficial and unconvincing.
120. In addition, at the time of this decision the most recent information provided to us is that Ms Wang and Mr Rocca had separated on or around 5 December 2022, with Mr Rocca returning to his family home to live and that Ms Wang had been unable to contact him. We have not been informed whether that situation has been resolved or is ongoing.
Conclusions – primary visa applicant Ms Wang
121. For the reasons above, we are not satisfied that Ms Wang and Mr Rocca are, or were at the relevant time, in a spousal relationship and we are therefore not satisfied that Ms Wang meets the criteria in cls 820.211(2) or 820.221(1) for the grant of the visa.
122. In summary, the evidence about the financial aspects of the relationship is equivocal and raises significant questions about their financial arrangements which, in the absence of other evidence responding to those concerns, leads to an inference that those financial arrangements are contrived. The evidence about the nature of their household is also equivocal and we are not satisfied on the available evidence that Ms Wang and Mr Rocca have lived together in a married relationship since March 2018. There is little evidence about the social aspects of their relationship to corroborate their claim that they are in a married relationship and the evidence of third parties is not only dated but the credibility of this evidence could not be tested. There is little meaningful and updated evidence about the nature of the commitment Ms Wang and Mr Rocca have to each other and what information we do have indicates the relationship may have ended. The adverse information from the Department is sufficiently detailed and probative to require some response by Ms Wang and/or Mr Rocca but no meaningful response was provided, apart from a written denial by Ms Wang of the claims.
123. While we are satisfied that Ms Wang and Mr Rocca are married to each other under a marriage that is valid for the purposes of the Act, we are not satisfied that are in a married relationship as defined in s 5F(2) of the Act. There is evidence that they have lived together but for the reasons outlined above, we are not satisfied as to whether they are currently living together or whether they were (and are) in fact living separately under one roof. Furthermore, and having regard to the matters outline above and our assessment of all of the matters in reg 1.15A, we are not satisfied that the relationship between Ms Wang and Mr Rocca is genuine and continuing or that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others.
Conclusions – secondary applicants [Applicant 2] and [Applicant 3]
124. To be granted secondary partner visas the secondary applicants must meet the criteria set out in cl 820.3 of Schedule 2 to the Regulations.
125. Clause 820.311 provides that a secondary applicant will be eligible to be granted a secondary partner visa if they are the dependent child of a person who has applied for a partner visa or are a member of the family unit of a person who has applied for a partner visa (amongst other matters).
126. Clause 820.321 provides that in the case of a secondary applicant referred to in cl 820.311, the secondary applicant will be eligible for the grant of a partner visa if they are a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a partner visa. These are time of application requirements.
127. Clause 820.321 provides that those secondary applicants must continue to meet these requirements at the time, in this case, of the Tribunal’s decision.
128. We are satisfied, based on all of the evidence before us, that the secondary applicants continue to be minors at the time of this decision and are members of the family unit of the primary visa applicant, Ms Wang.
129. However, as we have affirmed the primary decision not to grant Ms Wang a partner visa, the secondary applicants are not members of the family unit of someone who, having satisfied the primary criteria, is the holder of a partner visa.
130. For these reasons, the Tribunal finds that the secondary applicants are not eligible to be granted secondary Partner (Temporary) (Class UK) visas.
DECISION
131. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.
J.L Redfern PSM
Deputy PresidentMichael Ison
Senior Member
- AGLC
- 2110681 (Migration) [2023] AATA 412
- Case
- [2023] AATA 412
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Tribunal had properly considered the prescribed matters under regulation 1.15A of the Migration Regulations 1994, which govern the assessment of partner visa applications. Specifically, the court needed to assess if the Tribunal made findings on each of the principal and specific matters relevant to the genuineness and continuation of Ms. Wang's relationship with Mr. Rocca, including aspects such as financial pooling, the nature of their household, social aspects of their relationship, and the couple's commitment to each other. A key issue was whether the Tribunal erred in drawing adverse inferences from Ms. Wang's failure to respond to a request for information and her subsequent failure to appear before the Tribunal.
The court noted that regulation 1.15A is prescriptive, requiring the Tribunal to give genuine and realistic consideration to each prescribed matter and to make findings on each, even if there is insufficient material to form a conclusion. The court found that Ms. Wang had provided a significant amount of documentation to support her claim, including statements from herself and Mr. Rocca, statutory declarations from family, financial documents, and evidence of shared household expenses. However, the Department had raised concerns about unexplained financial discrepancies, the lack of significant joint assets or liabilities, and limited evidence of shared household expenses. The Tribunal had invited Ms. Wang to appear to give evidence and present arguments regarding these issues, but she failed to respond to the invitation or provide further information by the due date. Consequently, the Tribunal proceeded to determine the review based on the material before it, drawing adverse inferences from Ms. Wang's non-compliance. The court affirmed the decision under review.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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