2101398 (Migration)

[2024] AATA 905

2101398 (Migration) [2024] AATA 905 (15 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101398

MEMBER:Margie Bourke

DATE:15 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 15 April 2024 at 3:26pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – both parties previously married and divorced – sponsor living under one roof with former husband now with health difficulties – joint responsibility for home loan and joint health insurance but personal costs paid separately – applicant unaware of sponsor’s other financial arrangements with former husband, continuing after parties’ wedding – limited joint finances, household and socialisation due to sponsor’s working hours, and nature of commitment – applicant’s immigration detention and departure – sponsor’s relationship with former husband continuing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASE
He v MIBP [2017] FCAFC 206

Any 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 January 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 June 2019 on the basis of his relationship with his sponsor, 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, if any, 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 and cl.309.221 because the delegate was not satisfied the relationship between the visa applicant and the sponsor met the definition of spouse in s.5F(2).

4. The review applicant appeared before the Tribunal on 10 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant who attended the hearing by telephone. The tribunal received oral evidence from a witness [Mr A] who attended the hearing in person, and from another witness, [Mr A] who gave evidence by telephone. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The interpreter attended the hearing in person.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

6. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian permanent resident.

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 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: s.5F(2)(a)-(d). In forming an opinion about 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            reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the translated divorce certificate, I am satisfied the review applicant was previously married and was divorced in China [in] 2016. Based on the translated divorce certificate, I am satisfied the visa applicant was previously married and was divorced in China [in] 2007. Based on the registered marriage certificate I am satisfied that the review applicant and the visa applicant were married in [Suburb 1], Victoria [in] 2017. On the evidence, 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).

   Evidence in relation to the review applicant’s first marriage

9. The review applicant provided oral and written evidence that she was married to her first husband, [Mr C], [in] 2002, and was divorced in China [in] 2016. The review applicant provided oral and written evidence that she and her first husband purchased their home in [Suburb 2] at the end of 2014. The review applicant provided the Tribunal with copies of bank statements of their joint home loan dating from 2017 to 2023. The review applicant stated that she and her first husband are jointly responsible for the home loan. The review applicant stated that she and her first husband reside in their home, and resided in the jointly owned home at the time of application and continue to do so at the time of this decision. I am satisfied that the review applicant and her first husband purchased a home together in 2014, have a joint home loan for the home, and both reside in the home that they purchased together.

10. The review applicant stated that she and her first husband own two dogs who are central to their lives and are very important to them both. The review applicant stated in her evidence in the hearing that she and her first husband were residing at a friend’s home in 2014, when they were required to move, due to the friend’s change in circumstances, at very short notice. The review applicant stated that she and her first husband decided they did not want to continue having to move residence, and they did not want to live with other people, and for this reason decided not to continue to rent or board, but purchased the new home, a three-bedroom apartment in [Suburb 2]. I am satisfied that the review applicant and her first husband have two dogs. I am satisfied that when the review applicant and her first husband purchased a home in 2014, they made a choice for a permanent living arrangement for themselves and their two dogs.

11. The review applicant stated that at the time they purchased the home her first husband was working and she was not, and therefore he was mainly responsible for the mortgage payments. The review applicant stated that subsequently her first husband had health difficulties, and now is in receipt of a Centrelink benefit and she is working and she is mainly responsible for the mortgage payments. I am satisfied based on the evidence of the review applicant that she and her first husband have jointly shared the responsibility for the payment of the home loan, and this shared responsibility has been flexible, depending on the financial capacity of both the review applicant and her first husband.

12. The review applicant stated that she and her husband had slept in separate rooms at the time they purchased their home together in 2014. I have taken into account the review applicant’s claims that she and her husband were sleeping separately and their lifestyles were different, but I balance this with the evidence that they made a joint commitment to purchase a home, and that they decided to purchase a home that would give them permanency in the future for themselves and their dogs. I am not satisfied that the evidence indicates that in 2014 the relationship between the review applicant and her first husband had ceased, or that it was deteriorating; conversely the evidence indicates that in 2014 the review applicant and her first husband were planning a future together with a permanent residential address by the purchase of their first home.

13. The review applicant provided the Tribunal with a copy of her divorce, and also a signed agreement on finances and joint property, between herself and her first husband. The signed agreement is dated July 2016, and records that the review applicant and her first husband agreed to continue to live under one roof, to share all costs including the mortgage equally, to pay personal costs individually, to maintain their joint private health insurance, to resolve any issues by agreement and discussion, and that if either has a new partner that the new partner can reside at the joint home and they will discuss how to divide costs at that time. I have considered the fact the parties obtained a divorce, and I have considered the agreement document in my assessment of the evidence. I have balanced these documents with other written evidence and oral evidence of the ongoing arrangements between the review applicant and her first husband.

14. The review applicant provided the Tribunal with documents including a signed agreement for the repayment of debts from outstanding loans, signed statements, and an Excel spreadsheet of money transfer records. The review applicant’s written evidence indicated that she and her first husband together, and in conjunction with other people, had lent the amount of $95,480 between 7 March 2017 and 19 December 2017 to a person known as [Mr D] (also known as [Alias]), and also recorded additional loans arranged through the review applicant to [Mr D]. The agreement indicated that the loans are subject to interest, and [Mr D] had defaulted on repayment of all the loans. In the hearing the review applicant stated that [Mr D] was employed in a financial trading organisation, and he assisted her to learn financial trading. In the hearing the review applicant stated that the money used was for her branching out to make money through financial trading. In the hearing the review applicant stated that she did lend money to [Mr D], but it was never subject to interest, and it was part of her own financial trading. The Tribunal is not concerned with making findings about the financial business of the review applicant, and the purpose of the substantial loans to [Mr D], and whether the loans were made with or without interest to [Mr D]. The relevance of this evidence to the review is whether the financial arrangements of the review applicant were done with the knowledge or with the participation of the visa applicant, or with the knowledge or the participation of the review applicant’s first husband, or both.

15. The review applicant stated that she borrowed money from her first husband to give to [Mr D] as part of her financial trading. She stated she borrowed money from her first husband rather than the visa applicant, even after she had married the visa applicant, because the visa applicant was not aware of these financial matters.

16. The visa applicant stated in his evidence that the review applicant did not borrow money from her first husband after their marriage. After hearing the visa applicant’s evidence, the review applicant initially told the tribunal that his evidence was correct. The Tribunal discussed with the review applicant the agreement, statements and the Excel spreadsheet that the review applicant had provided to the Tribunal, which recorded the dates of the loans, and recorded that the loans were made until December 2017 (and the marriage was in May 2017).  The review applicant then stated that the visa applicant was not aware that she had borrowed money from her first husband after she and the visa applicant were married.

17. The review applicant told the Tribunal that the money she and her first husband gave to [Mr D] came from two sources, firstly an offset from their home loan, and then secondly from her first husband’s superannuation fund. The review applicant told the tribunal that her first husband was aware of [Mr D], and knew about the money loans and the financial trading. The review applicant stated that her first husband was willing to lend her the money, to give to [Mr D]. The Tribunal finds that the evidence indicates the review applicant and her first husband continued to make investments, and make financial commitments together, and respond to liabilities together, and that they borrowed against their home loan, and utilised superannuation funds, during the period that the review applicant was married to the visa applicant. The Tribunal finds this evidence indicates the review applicant and her first husband did not lead separate lives living under the same roof, except for an agreement to maintain the mortgage and household expenses; the evidence indicates that after the date of their divorce, the review applicant and her first husband supported each other, confided in each other and made plans together.

    Evidence in relation to the visa applicant’s first marriage

18. I am satisfied based on the evidence before me that the visa applicant’s son is in China, is married and has a young child of his own. I am satisfied the visa applicant is divorced from his first wife, and that the visa applicant’s first wife has subsequently married an Australian citizen. I am satisfied that there is insufficient evidence to indicate that the visa applicant has any significant contact suggesting an ongoing relationship with his first wife.

    Assessment of evidence of the relationship between the review applicant and the visa applicant

19. The review applicant provided the tribunal with extensive records of the joint [bank] account. The Tribunal accepts that the joint bank account was opened in the name of the visa applicant and the review applicant, in 2017, before the visa applicant departed Australia in mid 2019 (which was before the application for the visa). The review applicant stated the parties did not use their joint account extensively when the visa applicant was in Australia, and this was the reason the joint bank account was not accepted as substantive evidence by the Department of their relationship. The review applicant stated that the visa applicant could not read English so did not use the bank account, and he would give her money in cash when he was in Australia.  The review applicant stated that after the visa applicant returned to China, and after the application for the visa was refused, she commenced using the joint bank account for daily activities. The review applicant stated the visa applicant did not use the joint bank account at this time because he was unable to, as he was living in China. Further the joint bank statement records regular deposited transfers from [Surname]. The visa applicant did not know who “[Surname]” was. The review applicant stated that the visa applicant would not know that the payments were from [Mr D] whose family name is [Surname]. The Tribunal accepts that these deposits in the joint bank statement refer to repayments of the loan made by [Mr D] to the review applicant. The Tribunal assesses the evidence of the joint bank statement that the visa applicant was not, and is not, involved in the use, management or the transactions in the joint bank account.

20. The Tribunal discussed with the review applicant that it accepts the evidence, that the joint bank account was not used extensively by the visa applicant and the review applicant when the visa applicant was in Australia, and that after the visa applicant departed Australia the joint bank account has been used solely by the review applicant. The Tribunal discussed with the review applicant that for this reason it is not satisfied that the joint bank account is evidence that the visa applicant and the review applicant shared their day-to-day expenses. The Tribunal is not satisfied that the joint bank account is evidence that the visa applicant and the review applicant pooled their financial resources.

21. The review applicant provided a statement from [Mr B] dated 28 March 2024, and this witness also attended the hearing by telephone to give evidence. This witness described himself in his written statement as a neighbour, but clarified that he lives in [Suburb 3] and owns the apartment in [Suburb 2] next to the home owned by the review applicant and her first husband. The witness stated he rents out the apartment he owns in [Suburb 2], and uses the double garage at the apartment for storage. The witness stated he does not go to his garage often, only if he requires something. [Mr B] stated that he renovated his unit in 2014 and 2015 and met the visa applicant at that time because the visa applicant gave him some assistance. He stated he was aware [the review applicant and her first husband] live together in the apartment next to his. He states he sees the review applicant with her dogs and talks to her. He stated he was invited to the wedding between the review applicant and the visa applicant but could not attend because he had a bad back. [Mr B] stated he saw the review applicant and the visa applicant together, then he said he wasn’t sure. He stated that [Mr C] is a friend of the review applicant but then he said that he wasn’t sure. The witness added the proviso that he was not sure of his own volition, and not in response to any particular question about his evidence. He stated it had been a long time since he had seen the visa applicant and he does not know anything about the relationship between the review applicant and the visa applicant since the time that he was asked to go to the wedding.

22. I am satisfied based on the evidence of the witness [Mr B], that he is not a neighbour although he owns the property next door, as he does not live there. I accept the witness owns the property,  and uses a garage on the property for storage. I assess, based on the number of times the witness stated that that he was not sure when speaking of the relationship between the review applicant and the visa applicant, and the review applicant and her first husband, that his evidence is not reliable in relation to his knowledge of the relationship between the review applicant and the visa applicant, or the review applicant and her first husband. I accept that the witness is aware the review applicant and her first husband reside at the property together. I accept that the witness is aware that the review applicant and the visa applicant had married, and that the witness was invited to the wedding. I accept that the witness has little knowledge of the relationship between the review applicant and the visa applicant since the invitation to the wedding. My analysis of the evidence of [Mr B] is that he is unable to assist the Tribunal with any reliable evidence based on direct knowledge of the relationship between the review applicant and the visa applicant.

23. The witness, [Mr A], provided a statement to the Department dated 24 July 2019, in which he stated he had known the visa applicant for more than 11 years through the church and that they had kept in touch. This witness stated that he had been introduced to the review applicant through the visa applicant, and they had all shared meals together. The witness was aware that the review applicant and the visa applicant had been married and he attended the marriage and the dinner celebration afterwards. [Mr A] attended the hearing to give evidence and confirmed the information he had provided in his written statement. He stated he had known the visa applicant for over 15 years. The witness stated he assisted the visa applicant to obtain employment in the construction and renovation field.  [Mr A] stated he never visited the visa applicant at the review applicant’s home. He stated he had seen the review applicant with the visa applicant and they had had meals together, and he had seen the review applicant in overalls assisting the visa applicant when the visa applicant was working on occasions. He stated the visa applicant had never told him that the review applicant lives with her first husband, and he had at first thought that she lived with relatives. [Mr A] stated that after the application for the visa was refused he then became aware that the visa applicant had married the review applicant and moved into her house where she lived with her ex-husband. He stated it was not usual for a second husband to live with their wife and their wife’s first husband.  

1. He stated he understood that the visa applicant returned to China after being checked by police in a breathalyser test and subsequently being detained by immigration. The witness stated the visa applicant’s departure was delayed while he obtained a current Chinese passport.

2. I am satisfied that [Mr A] is a reliable witness, and is a longtime friend of the visa applicant. I am satisfied that he assisted the visa applicant to obtain work, and that the visa applicant introduced him to the review applicant. I am satisfied that he never visited the visa applicant at the review applicant’s home. I am satisfied that he was not aware the review applicant resided with her first husband, and that the visa applicant moved into the home where the review applicant lived with her first husband. I am satisfied that this witness considers the relationship between the visa applicant and the review applicant is genuine, but I am also satisfied that this witness was not aware of the review applicant’s ongoing relationship and residence with her first husband prior to the visa applicant departing Australia.

3. The visa applicant gave evidence, and described the unit owned by the review applicant and her first husband. The visa applicant described the arrangement for the dogs at the unit and the rooms in the unit in some detail. The visa applicant stated that after the marriage he had a conversation with the review applicant’s first husband to ensure that he did not have any concerns about the visa applicant living in their apartment.

4. In response to a question from the Tribunal the visa applicant expressed that he had concern about the emotions of the review applicant’s first husband, but did not have any emotional issue about himself and the review applicant residing in the review applicant and her first husband’s home with her first husband.

5. The visa applicant and review applicant gave consistent evidence about their relationship after their marriage, and before the visa applicant returned to China (which is also before the time of application), that the review applicant would do the grocery shopping, that the visa applicant would give her money in cash from his employment towards contribution for payment of any bills, that the visa applicant worked long hours and they did not socialise during the week, and described the review applicant’s preferred public swimming pool.

6. I am satisfied based on my assessment of the oral evidence that the visa applicant did reside at the home of the review applicant and her first husband. I am satisfied that the visa applicant and the review applicant did social activities together, and the review applicant undertook most of the household responsibilities. I accept the visa applicant undertook any renovations or repairs that were required in home and sometimes did some cooking for the review applicant’s first husband. I accept the visa applicant contributed financially to household bills by giving the review applicant cash.

7. The visa applicant stated that if the visa was granted he would take care of the review applicant, her dogs and her first husband. The review applicant and the visa applicant both stated that the review applicant’s first husband would continue to reside in the home owned by the review applicant and her first husband, and the visa applicant would reside with them there, if the visa was granted.

8. The Tribunal notes that the Department was provided with a statutory declaration in 2019 from a friend of the visa applicant. The deponent stated that they attended the wedding ceremony, but do not see the visa applicant and review applicant often, estimating it was two or three times each year. The deponent did not refer to the fact that they resided with the review applicant’s first husband. The Tribunal gives the deponent’s assessment of the relationship between the visa applicant and the review applicant limited weight, as the deponent declares limited contact with the parties, and does not indicate knowledge of the circumstances of the review applicant’s first husband also residing with the review applicant and the visa applicant.

9. The review applicant also provided the Tribunal with statements of relatives and friends who were aware of her marriage with the visa applicant. These included a statement from the review applicant’s sister who referred to contact with the visa applicant in China, which involved her remitting money to him on two occasions and the visa applicant sending some products to her parents. The review applicant provided a statement from the visa applicant’s younger sister who lives in China, stated she is aware her brother had married again and when he returned to China she would greet the review applicant when her brother talked to her. She stated she has since moved away and does not see the visa applicant often. The review applicant provided a statement from the visa applicant’s son, who refers to his regular contact with the visa applicant (his father), and that he first met the review applicant at their wedding. He records that he had two conversations with the review applicant after his father returned to China. He records that he himself has returned to China, that he himself is married and has a child. The review applicant provided a statement from a friend who was involved in the loans to [Mr D], [Ms E], who now also resides in China and who records that the review applicant and the visa applicant helped her move furniture, came to visit after her move to Brisbane, and she expressed the opinion that the relationship between the review applicant and the visa applicant seemed natural and real.

10. After the hearing the review applicant provided three photos, one of herself and the visa applicant and two of the visa applicant with her friends in Queensland. I accept the review applicant and the visa applicant visited the friend in Queensland as stated. The review applicant also provided a screenshot of an untranslated wechat messages from her sister, which the review applicant stated referred to the money her sister had sent to the visa applicant. I accept the statement of the review applicant’s sister that she remitted money to the visa applicant on two occasions.

11. I accept the witness statements indicate that relatives and friends of the review applicant and the visa applicant are aware of the marriage between the review applicant and the visa applicant. I am satisfied based on these statements that the review applicant’s sister has not met the visa applicant, and the visa applicant’s sister has not met the review applicant. I am therefore not satisfied that the statements of the siblings of the review applicant and the visa applicant are of assistance to the tribunal in relation to an opinion of the relationship.

12. I accept that the statements of the visa applicant’s son and the review applicant’s friend contain evidence of how they know of the relationship between the review applicant and the visa applicant, and the persons provide their opinion that they believe the relationship is genuine. I give these statements less weight in their assessment of the relationship as evidence of the mutual commitment between the parties, as the visa applicant’s son and the review applicant’s friend do not refer to the fact the visa applicant and the review applicant resigned with the review applicant’s first husband.

13. The review applicant provided the Tribunal with untranslated screenshots of messages. I accept the review applicant and visa applicant have continued some form of communication since the visa applicant returned to China. I am not satisfied based on the oral, written or documentary evidence, that there is evidence before me of the visa applicant and the review applicant providing companionship or emotional support to each other.

14. The review applicant provided the Tribunal with photographs, which confirmed the review applicant and the visa applicant socialised together with friends when the visa applicant was in Australia.

15. The review applicant provided the Tribunal with some limited written evidence which confirmed the visa applicant had recorded the review applicant’s home as his residential address. There is no evidence to indicate that the visa applicant resided at another premises other than the home of the review applicant after the marriage in May 2017.

16. The review applicant stated that she returned to China in 2016 with her first husband, so that they could both apply for the divorce. She stated she understood she had to be divorced in the country where she was married. The review applicant stated she has not departed Australia since 2016. She stated this has been because of the global pandemic, financial reasons, her two dogs and the fact she has to work to pay the home loan. The visa applicant stated that the review applicant could not return to China because of her need to look after her first husband and the two dogs. I am satisfied there was a variety of reasons that the review applicant has not departed Australia since 2016, including her dogs, and the mortgage, although I note that the review applicant had both these commitments when she and her first husband travelled to China in 2016 for the divorce. I am satisfied that the review applicant is committed to her dogs, and her home.

17. The review applicant stated she did not have any long-term goals, and was not making any plans for the future until she knew the outcome of the visa application.

18. The review applicant stated that people do not understand her situation, but that it works out for her to continue to reside with her first husband. She stated she would be lonely and on her own if the visa was not granted. The review applicant stated that she had lived separately from her first husband although under the same roof since before her marriage to the visa applicant.

    Are the other requirements for a spouse relationship met?

19. Financial aspects of the relationship: – I am satisfied that the review applicant and the visa applicant do not jointly own real estate or other major assets. I am satisfied that the review applicant and the visa applicant do not have joint liabilities. I am satisfied, and I have considered the joint bank account as discussed above, that the parties do not pool their financial resources in relation to major financial commitments and do not pool their financial resources generally. There is no evidence before the tribunal that one person in the relationship owes any legal obligations in respect of the other. I accept the visa applicant may have contributed to the household costs whilst he lived at the review applicant’s home prior to his departure for China in 2019, and to this extent I am satisfied that the parties shared day-to-day household expenses.

20. The evidence of the financial aspects of the relationship is not sufficient to indicate the parties meet any of the requirements for a spousal relationship in s.5F(2).

21. Nature of the household: – I am not satisfied that the review applicant and the visa applicant have any joint responsibility for the care and support of children. I accept the visa applicant resided at the home of the review applicant and her first husband prior to the visa applicant’s departure for China and prior to the time of application. There is no independent evidence before the tribunal that the visa applicant resided within the household as the review applicant’s spouse. I accept the visa applicant worked long hours during this period, and the review applicant was the person responsible for the housework, although the visa applicant would contribute to repairs required in the home, and would occasionally cook a meal.

22. The evidence of the nature of the household is limited and is not sufficient to indicate the parties meet any of the requirements for a spousal relationship in s.5F(2).

23. Social aspects of the relationship: – I am satisfied the review applicant and the visa applicant represented themselves to other people as being married to each other, including the review applicant’s sister, the visa applicant’s sister, the visa applicant’s son, the owner of the next-door apartment, [Mr A] who is the visa applicant’s longtime friend, and the review applicant’s friend [Ms E]. I satisfied the opinion of the review applicant’s and the visa applicant’s friends and acquaintances, which in the view of the tribunal must be limited to the statement of people who had seen the couple together and expressed an opinion on the relationship, namely the visa applicant’s son, the visa applicant’s friend [Mr A], and the review applicant’s friend [Ms E] and the visa applicant’s friend [Ms F] (in the statutory declaration provided to the Department), is that the relationship is genuine. I satisfied that the visa applicant and the review applicant rarely socialised together prior to the visa applicant returning to China due to the visa applicant working very long hours five or six days a week. I accept based on the photographs and the oral evidence that the review applicant and visa applicant planned and undertook joint social activities including swimming together, travelled to Queensland together, shared meals together with friends or relaxed at the review applicant’s home on the weekends.

24. The evidence of the social aspects of the relationship indicates that the review applicant and the visa applicant were in a genuine and continuing relationship at the time of application.

25. Nature of the persons’ commitment to each other: – I am satisfied based on the marriage certificate that the review applicant and visa applicant were married [in] 2017, and at the time of application on 27 June 2019 had been married for 25 months, and at the time of this decision have been married for six years and 11 months. I am satisfied based on the evidence that the visa applicant resided at the home of the review applicant from the time of their marriage until the time he departed for China [in] June 2019, a period of 25 months at the time of application. I am satisfied that at the time of decision, the review applicant and visa applicant have not resided at the same premises since [June] 2019. Accordingly at the time of decision the visa applicant had resided at the home of the review applicant for a period of 25 months. I am satisfied the parties have maintained some form of communication since the visa applicant departed Australia in June 2019, but I am not satisfied there is evidence before me that the parties have provided a degree of companionship or emotional support to each other. I am cognisant that it is now nearly five years since the application for the visa was lodged, and nearly seven years since the review applicant and the visa applicant were married, although this on its own is not sufficient to demonstrate the parties see the marriage as long-term. The visa applicant’s future plans were to return to reside at the home of the visa applicant and her first husband. The review applicant stated she had not made any long-term plans. Both the review applicant and the visa applicant stated that if the visa was granted the visa applicant would reside with the review applicant and her first husband. Based on all the evidence before me, my analysis of this evidence leads to the conclusion that I am not satisfied that either the review applicant or the visa applicant see this relationship as a long-term relationship.

26. The evidence of the nature of the persons’ commitment to each other is limited and not sufficient to indicate the parties meet any of the requirements for a spousal relationship in s.5F(2).

27. Other relevant matters: – I am satisfied based on the evidence before me that the review applicant and her first husband jointly own real estate, namely their home and have joint liabilities namely the home loan and the loans to [Mr D] and their joint private health insurance. I am satisfied based on the evidence before me that the review applicant and her first husband pool financial resources in relation to major financial commitments, including the use of offsets from their mortgage, and the use of superannuation to pay debts or loans. I am satisfied that the review applicant and her first husband make plans together, and turn to each other for financial support.

28. I am satisfied based on the evidence before me, including the signed agreement that the review applicant and her first husband share the day-to-day household expenses of the house that they lived together, although the agreement also notes they pay their personal costs individually.

29. I am satisfied based on the evidence before me that the review applicant and her first husband lived together in the home they own together.

30. I am satisfied based on the evidence before me that the review applicant and her first husband provide a degree of support to each other, based on the evidence that they have cared for each other during times of ill-health, and provide financial support to each other during times when one of them is not employed.

31. I am satisfied based on the evidence before me that the review applicant and her first husband see their relationship as a long-term one. I make this finding even though the review applicant has provided the divorce certificate in relation to her marriage to her first husband. The relevant evidence includes the fact that they purchased a home together, make decisions in relation to the mortgage and borrowing from the home loan, and continue to plan to reside together in that home.

32. Significant relevant evidence includes the fact that the review applicant and the visa applicant both gave evidence that the review applicant and her first husband would continue to reside together in their home, whether the visa was granted to the visa applicant or not.

33. This evidence of the circumstances of the relationship between the review applicant and her relationship with her first husband indicates an ongoing commitment to the relationship.

34. I am satisfied that even after the marriage to the visa applicant, the review applicant turned to her first husband for financial assistance in relation to her loans to [Mr D], and her wish need to provide more money to [Mr D] although he owed her money. I am satisfied that after the marriage to the visa applicant, the review applicant relied on her first husband to understand her financial situation and plans in relation to [Mr D]. I satisfied that the review applicant and her first husband together borrowed against their home loan, and the review applicant’s first husband applied for funds from his superannuation to assist the review applicant.

35. I am satisfied that the visa applicant and the review applicant are committed to their two dogs, and purchased a home and planned their future together around a secure and permanent address and an appropriate home for the two dogs.

36. I satisfied that the review applicant has continued to provide physical and financial support for her first husband.

37. I accept that the review applicant has married the visa applicant, and that relatives and friends are aware of the marriage. I have assessed the evidence that some witnesses consider the relationship between the review applicant and the visa applicant to be genuine. However, I am also satisfied that the review applicant has an ongoing commitment to a relationship with her first husband.

38. Conclusion: – In these circumstances, my analysis of the evidence is that the review applicant does not have a mutual commitment to a shared life as a married couple to the exclusion of all others with the visa applicant.

39. For this reason, the relationship between the review applicant in the visa applicant does not meet the definition of spouse in s.5F(2)(b), either at the time of application or at the time of decision.

40. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made or at the time of this decision.

41. Therefore the Tribunal finds that the visa applicant is not the spouse of an Australian permanent resident at the time of application and does not meet the requirements of cl.309.211(2).

1. The alternative requirements of cl.309.211(3) are not met as the visa applicant does not intend to marry an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen at the time of application, as based on the registered marriage certificate, the parties married on 13 May 2017.

2. Accordingly the visa applicant does not meet the requirements at the time of application of cl.309.211.

3. Further the Tribunal finds that the visa applicant is not the spouse of the sponsoring partner, and does not continue to satisfy the criterion in cl.309.211 at the time of decision. The visa applicant does not meet the requirements of cl.309.221.

4. Therefore the visa applicant does not meet the requirements of cl.309.211 or cl.309.221.

5. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

   DECISION

6. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

   Margie Bourke
   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).