1407471 (Migration)

[2015] AATA 3021

1407471 (Migration) [2015] AATA 3021 (1 July 2015)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mrs BICH DUNG LE

VISA APPLICANT:  Mr RUQIAN LAO

CASE NUMBER:  1407471

DIBP REFERENCE(S):  2013024822

MEMBER:Helena Claringbold

DATE:1 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 01 July 2015 at 10:28am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

309 VISA REFUSAL

1. Mr Ruqian Lao, the visa applicant applied for the visa on 23 October 2013, on the basis of his relationship with Ms Bich Dung Le, his sponsor and the review applicant. On 8 April 2013 the application was refused as the delegate found the parties were not in a spousal relationship. The delegate refused to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).  Relevant to this matter is primary criteria cl.309.211(2)

   REVIEW & HEARING

2. Ms Le requested review of the delegate’s decision.  She appeared before the Tribunal on 15 June 2015 to give evidence and present arguments.  The Tribunal also received evidence from Mr Lao. An interpreter in the Mandarin and English languages was provided.

3. The review applicant was represented in relation to the review by Mr Shijing Terry Zhang,           her registered migration agent.

   ISSUE

4. The issue in the present case is whether the parties are in a spousal relationship.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Departmental case file OSF2013/024822, folios numbered 1-235, and the Tribunal’s case file 1407471, folios numbered 1-101, and the oral evidence given by both parties at the Tribunal’s hearing.

   RELEVANT LAW

6. At the time the application was made, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.309.211(2).

7. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

   What is the background of this case based on all the evidence before the Tribunal?

8. Mr Lao is 45 years old. He is a national of China residing in Guangzhou.  He has not declared a previous marriage.  His father is deceased.  His mother, Peixiao and sister, Xuemin are Australian permanent resident and his brother Rujie is an Australian citizen, they reside in Australia.  He has a sister, Shuwen, who resides in China.  In 1997 he entered Australia and attempted to change his status unsuccessfully.  On 6 March 2012, he lodged an onshore spouse partner visa application with Ms Le as his sponsor.  On 23 July 2013 the spouse partner application was refused.  On 15 August 2013, he departed Australia.  On 23 October 2013, he applied for the application under review on

9. Ms Le is 52 years old.  She is an Australian citizen (refer: D1 f27), who was originally from Heku in Yunnan Province, China.  She has declared two previous marriages.  Her first marriage to Mr Li Shauquan began in February 1983 and ended in 1992.  There is one child, Ms Li Xing from this marriage.  A second child Li Desheng was not disclosed on the application form.  Her second marriage to Mr Hung Phuc Ly began on 4 April 2000 and ended on 17 January 2011.  There are no children from this marriage.  On 27 March 2001, Ms Le and her two children migrated to Australia.  On 21 November 2006, she acquired Australian citizenship.

10. Mr Lao and Ms Le were introduced to each other by Ms Xiuping Zhu.  Ms Zhu recommended Mr Lao and his brother to Ms Le for renovation services lasting 2 weeks.  In November 2010 Mr Lao declared his love for Ms Le.  In August 2011, they began living together at Ms Le’s home, until Mr Lao’s departure.  On 15 January 2012 they registered their marriage In Australia.   

    Is the applicant the spouse or de facto of an eligible citizen?

11. The Tribunal is satisfied the review applicant is at the time of application and time of decision is an Australian citizen as evidence by her citizenship certificate (refer: D1, f27).

    Are the parties in a spouse or de facto relationship? Are the validly married?

12. The parties claim they are the spouse of the other. ‘Spouse’ is defined in s.5F of the Act: s.5F(2)(a)-(d). If they are validly married, they may meet the requirements of a spousal relationship. The Tribunal is satisfied that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a) as evidenced by the parties oral evidence, and a certified copy of their marriage certificate (refer: D1, f35).

    Are the other requirements for a spousal relationship met?

13. The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2).

14. The Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. On these aspects the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows: the sponsor provided financial assistance to the visa applicant when he first returned to China; the parties have full knowledge of their financial circumstances.  The parties anticipate combining their financial affairs when they cohabitate permanently. Outside of marriage, they owe no legal obligation to each other. The sponsor has two children and grandchildren and the applicant is looking forward to having them in his life. They anticipate establishing a permanent household in Australia.  Their families are aware that they are in a married relationship and friends and colleagues support that they represent themselves as being married to each other. They provided consistent evidence about their personal and working history.  They lived together since 2011 and until the applicant’s departure from Australia and have been married now for more than three years.  The sponsor has been back to China on three occasions to be with the applicant and they have travelled to Vietnam together.   They have discussed their future together including becoming a united family, being financially secure and comforting and supporting each other. 

15. In view of all the above, the Tribunal is satisfied that there is broad-based public recognition of the parties’ relationship. The Tribunal is satisfied by the parties’ oral evidence at hearing that they demonstrate a sound knowledge of each other’s lives, which is commensurate with a couple in a genuine and ongoing spousal relationship. In respect of whether there is a mutual commitment to a share life as husband and wife to the exclusion of all others, the Tribunal accepts the parties’ oral evidence as presented at hearing.

    FINDINGS

16. The Tribunal is satisfied that the parties’ marriage is valid for the purposes of the Act as required by s.5F(2)(a).

17. The Tribunal is satisfied that at the time of application and at the time of decision the review applicant and the visa applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

18. The Tribunal is also satisfied that at the time of application and at the time of decision the parties meet the requirement of s.5F(2)(d) for a married relationship, in that they do not live separately and apart on a permanent basis.

19. For these reasons the Tribunal is satisfied that at the time the visa application was made the parties were in a ‘married relationship’ within the meaning of s.5F(2) of the Act. The Tribunal further finds that at the time of decision, they continue to be in a married relationship.

20. The Tribunal therefore finds that at the time of the visa application the visa applicant was the spouse, within the meaning of s.5F of the review applicant, who is an Australian citizen, and meets the requirements of cl.309.211(2) of Schedule 2 to the Regulations. Therefore the visa applicant meets cl.309.211.

21. Further the Tribunal finds that at the time of the Tribunal’s decision the visa applicant continues to be the review applicant’s spouse, and so continues to meet cl.309.211, and therefore meets the requirements of cl.309.221 of Schedule 2.

22. Given these findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

23. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Helena Claringbold   1 July 2015
    Member

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)any joint ownership of real estate or other major assets; and

    (ii)any joint liabilities; and

    (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)any joint responsibility for the care and support of children; and

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)whether the persons represent themselves to other people as being married to each other; and

    (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)the duration of the relationship; and

    (ii)the length of time during which the persons have lived together; and

    (iii)the degree of companionship and emotional support that the persons draw from each other; and

    (iv)whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).