1507970 (Migration)

[2016] AATA 4201

1507970 (Migration) [2016] AATA 4201 (4 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Jing Bai

VISA APPLICANTS:  Weidong Qian

Jing Qian

CASE NUMBER:  1507970

DIBP REFERENCE(S):  OSF2014/053893

MEMBER:P. Wood

DATE:4 August 2016

PLACE OF DECISION:  Melbourne

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

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

STATEMENT MADE ON 04 AUGUST 2016 AT 3:15PM

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 May 2015 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant Weidong Qian (the visa applicant) applied for the visa on 3 July 2014 on the basis of his relationship with his sponsor Ms Jing Bai, the review applicant. At that time, 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 who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate considered there to be insufficient evidence of a genuine and continuing spousal relationship.

4. The review applicant appeared before the Tribunal on 20 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence in person from the visa applicant.

5. The review applicant was represented in relation to the review by a migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether at the time of application and at the time of decision the applicants were in a genuine spousal relationship.

   Whether the applicants are in a spouse or de facto relationship

8. Clause 309.211 and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

9. ‘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.

   Are the applicants validly married?

10. If the applicants are validly married, they may meet the requirements of a spousal relationship. The applicants married in China on 15 May 2014 at a registry office. On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship

11. The delegate found that there was not sufficient evidence in relation to the financial aspects of the relationship. 

12. The applicants gave evidence in relation to their personal financial circumstances, including the financial aspects of the relationship.

13. Outside of marriage, the applicants do not owe any legal obligations in respect of the other.

14. The Tribunal is cognisant that the applicants are not living together continuously so it would not expect that they would have invested in joint ownership of real estate or other major assets or joint liabilities at this stage in their relationship.

15. The review applicant gave evidence that she owns her own home in Canterbury and works part-time at Coles. The review applicant also gave evidence that she has notified Centrelink of her marriage.

16. The visa applicant gave evidence that he works for a state-owned Chinese advertising company and earns a salary of approximately $400 AUD per month. The visa applicant also gave evidence that he recently sold an apartment for a substantial amount and has access to these funds.

17. The Tribunal notes the existence of an active joint bank account that the applicants have together. The Tribunal accepts that the visa applicant has made significant contributions to the joint account, including payments towards the tuition of the review applicant’s daughter (his step-daughter).

18. The Tribunal has found that the financial aspects of the relationship do not weigh against a finding that the parties are in a married relationship in the circumstances of this case.

19. The Tribunal accepts that the parties have partly pooled their financial resources and shared their day-to-day expenses during their brief periods of cohabitation. The Tribunal is satisfied that the applicants intend to pool their financial resources in Australia. Given they currently live in different countries, the Tribunal places limited weight on this aspect of the relationship.

20. The Tribunal finds there has been financial support from the visa applicant to the review applicant and this is consistent with that which occurs between people with an intention to form and maintain a genuine spousal relationship. Overall the Tribunal finds that the financial arrangements of the applicants are consistent with what could be reasonably expected of persons in their particular circumstances.

21. Given the applicants currently live in different countries, the Tribunal places limited weight on this aspect of the relationship.

    The nature of the household

22. A relevant aspect of consideration of the nature of a household is the living arrangements of the persons.

23. The Tribunal accepts the evidence that the applicants have cohabitated together in the home of the review applicant since August 2015. The Tribunal notes that the visa applicant has a tourist visa which requires him to leave Australia every three months. The Tribunal accepts that the visa applicant has visited the review applicant in Australia on three occasions. The review applicant gave evidence that the visa applicant assists her to take care of her daughter, his step-daughter, and that he also shares the household responsibilities.

24. The Tribunal accepts that the applicants have also cohabitated during travel by the review applicant to China.

25. A relevant aspect of consideration of the nature of a household is whether there is any joint responsibility for the care and support of children of the current relationship or any previous relationship/s and what those responsibilities are. The review applicant gave evidence in relation to her children from a previous relationship and explained how the visa applicant supports her to care for and support those children. At the present time there are no children of this marriage.

26. The Tribunal gives weight to this aspect of the application.

    The social aspects of the relationship

27. The Tribunal has carefully considered the photographs submitted as evidence.

28. The review applicant gave evidence that her mother-in-law gifted to her a timepiece that she was awarded by Premier Zhou Enlai, the first Premier of the People's Republic of China, during her time as an athlete. The review applicant’s asked that the Tribunal acknowledge the gifting of this sentimental item by the visa applicant’s mother as a sign of the acceptance of the union and marriage by his family.

29. The Tribunal was also provided with a statutory declaration from the review applicant’s eldest daughter, who is presently serving in the Australian Army in a confidential location. This statutory declaration attests to genuineness of the relationship between the applicants. The Tribunal attaches significant weight to this evidence.

30. The applicants gave consistent evidence concerning their visits to restaurants and other sites during visits by the visa applicant. The visa applicant gave evidence that the review applicant has socialised with him and mutual friends in Australia.

31. Based on the witness statements, the applicants’ oral evidence and the photographs before it, the Tribunal is satisfied that the applicants represent themselves as being in a spousal relationship to family and friends in their respective home countries.

32. The Tribunal finds that the relationship between the applicants is recognised and supported by their families and close friends.

33. The Tribunal finds that, when the applicants are together and apart they plan joint social activities. The Tribunal further finds that, when the applicants are together, they undertake joint social activities.

34. The Tribunal gives weight to this aspect of the application.

    The nature of the persons' commitment to each other

35. Whilst the Tribunal has carefully considered the delegate’s findings in the decision at first instance and notes the delegate’s concerns in relation to the sufficiency of evidence at the time of the original decision, the Tribunal has also had the benefit of receiving additional oral evidence from the applicants. It has also received additional information that was not before the delegate.

36. The review applicant provided spontaneous responses to the Tribunal's questions across a detailed range of issues regarding her relationship with the visa applicant. She provided satisfactory responses to the Tribunal's broad range of detailed questions regarding her relationship with the visa applicant. As well the Tribunal found the visa applicant's testimony to be satisfactory. His testimony was consistent with that of the review applicant in all important regards. On the basis of the evidence before it the Tribunal finds the applicants demonstrated a genuine affection for one another and a clear wish to continue their married life together in Australia.

37. On the evidence before the Tribunal the applicant and review applicant have known each other since at least September 2013. The evidence before the Tribunal is that the applicants have lived together as a couple and draw emotional support from each other. The review applicant provided the Tribunal with access to her web-based WeChat telephone account which showed regular and personal contact between the applicants over an extended period.

38. The Tribunal has taken into account the applicants’ respective ages, backgrounds and life experience, and accepts that neither party was in a relationship with any relevant third party at the time of the application, or that this is the case at the time of this decision. 

39. In respect to whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others the Tribunal gives great weight to the evidence submitted as outlined above. 

40. The evidence before the Tribunal is that the applicants see the relationship as a long-term one.

    CONCLUSIONS

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

42. The Tribunal is satisfied that at the time of application and time of decision the visa applicant and the review applicant have lived together, and do not live separately and apart on a permanent basis. Accordingly, they meet the requirements of s.5F(2)(d) for a married relationship.

43. 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. 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 meets cl.309.221 of Schedule 2.

44. For these reasons the Tribunal finds that at the time of application the visa applicant and the review applicant 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.

    DECISION

45. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    · cl.309.211 of Schedule 2 to the Regulations

    · cl.309.221 of Schedule 2 to the Regulations

    P. Wood
    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).