Bradshaw (Migration)

[2023] AATA 692

Bradshaw (Migration) [2023] AATA 692 (8 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Paul Howard Bradshaw

VISA APPLICANTS:  Mrs Ming Yi
Miss Xiyao Tong

REPRESENTATIVE:  Ms Claudia Zych (MARN: 1799220)

CASE NUMBER:  2100448

DIBP REFERENCE(S):  BCC2018/5905417

MEMBER:Peter Emmerton

DATE:8 March 2023

PLACE OF DECISION:  Adelaide

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

·The Tribunal finds that the secondary applicant’s application should be considered in the context of the delegate’s decision regarding the primary applicant satisfying the remaining criteria for a subclass 309 visa decision.

Statement made on 08 March 2023 at 12:44pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – persuasive evidence consistent with the sponsor’s commitment to a relationship with the visa applicant – copy of Marriage Certificate provided – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship –– parties are committed to one another – decision under review remitted   

LEGISLATION
Migration Act 1958, ss 5F,65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221

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 Immigration on 29 December 2020 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 (the visa applicant) applied for the visa on 1 January 2019 on the basis of their relationship with their 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(2) and subsequently cl.309.221 because they were not satisfied that the couple were in a genuine spousal relationship.

4. The review applicant appeared before the Tribunal on 8 March 2023 to give evidence and present arguments. The Tribunal also received evidence via video from the visa applicant, Ms Ming Yi. In addition, evidence was provided by 2 witnesses, Ms Rosalyn Bradshaw, the  review applicant’s mother and Ms Xiyao Tong, the visa applicant’s daughter who is currently studying in Adelaide on a student visa.

5. The review applicant was represented in relation to the review.

6. The review was conducted with the assistance of a translator fluent in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the couple is in a genuine spousal relationship as defined by section 5F of the Act.

9. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

10. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

    Whether the parties are in a spouse or de facto relationship

11. Cl.309.211(2) and cl.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.

12. ‘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 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 r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The delegate accepted a Marriage Certificate as evidence that the couple were legally married. The Certificate registration is dated 31 October 2018, issued by the People’s Republic of China. The Tribunal also accepts this evidence and has viewed a certified English language copy of the document. 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).

14. The Tribunal notes a valid Divorce Certification pertaining to the visa applicant dated 24 November 2011, issued by the People’s Republic of China.

    Are the other requirements for a spousal relationship met?

15. In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, 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 which is attached to this decision.

16. The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 1 January 2019 on the grounds of being in a spousal relationship with an Australian citizen, Mr Paul Howard Bradshaw.

17. The visa applicant is a female Chinese national by birth, who has declared 1 previous marriage relationship and subsequent divorce with 1 dependent child.

18. The sponsor is an Australian citizen, who has declared no previous marriage relationship nor children.

19. The Department has declared the DOB of the sponsor and the DOB of the applicant. The Tribunal accepts this as fact and therefore it is agreed that both parties have met personally since turning 18.

20. Both the visa applicant and the sponsor are therefore greater than 18 years of age.

21. It is claimed that the couple first met each other on 1 January 2018, in China whilst the sponsor was on a business-related trip. They had initially been chatting via a chat forum site prior to the first meeting.

22. The couple claim to have committed to a life together on 9 January 2018. The couple claim to have married and registered their marriage in China on 31 October 2018.

23. The departmental travel records verify the claimed travel of both parties.

24. It was asserted and it was accepted by the Tribunal, that the sponsor has travelled to China 5 times including the first meeting. The visa applicant has travelled to Australia twice since the relationship commenced. The Covid-19 pandemic has further complicated travel with the border closures and the high infection rate in China. Travel to China still incurs inflated infection risk.

25. The Tribunal has considered the documentary evidence provided to the Department and the Tribunal. The Tribunal has in addition had the benefit of receiving considerably more evidence from the sponsor and the visa applicant than provided to the delegate. The paucity of evidence provided in the original application was discussed with the review applicant at the hearing. It was clear to the Tribunal that he did not initially fully appreciate the process and therefore did not engage a qualified immigration specialist. A fact he now regrets.

26. The following evidence was provided to the Department and subsequently to the Tribunal.

    ·Department partner visa application form

    ·Biometrics pages

    ·Visitor Visa grant dated 1 February 2018

    ·Birth Certificate of Paul Howard Bradshaw

    ·Marriage documents of the Review Applicants

    ·Family documentation

    ·Chat log - (Mandarin)

    ·Department request for more information, dated 3 September 2019

    ·Department sponsorship application form

    ·Chinese police checks

    ·Statutory declarations of

    oNicole Felicity Parson, Social Worker, dated 16 September 2019

    oAbraham Tomich, Machine Operator, 16 September 2019

    oElizabeth Ann Dean, Medical Receptionist, dated 16 September 2019

    oStella Annie Martin, Bar Attendant, dated 16 September 2019

27. Department refusal notification and decision, dated 29 December 2020

28. Photographs of visa applicant’s trips in Australia

29. The following evidence, in addition to the documentation provided to the delegate and the department was provided to the Tribunal prior to the hearing.

    ·Email conversation chain with Mr James Stevens MP, Federal Member for Sturt

    • Representatives’ submission dated 1 March 2023
    • Statement of Mr Paul Bradshaw, dated 20 February 2023
    • Statement of Ms Yi Ming, translation dated 28 February 2023
    • Marriage Certificate, People’s Republic of China, registered 31 October 2018
    • Statement of Ms Xiyao Tong, daughter of Yi Ming, dated 20 May 2021
    • Statements of:

    oMs Rosalyn Dorothy Bradshaw, Part Time Sales Agent, dated 9 October 2022

    oMr Nathan Woods, Account Manager, dated 12 September 2022

    oMr Stefan Anthony Gieltowski, dated 12 September 2022

    oMs Stella Martin, Medical Receptionist, Baker / Decorator, dated 14 September 2022

    oMr Steven Kay, Church Caretaker, dated 12 September 2022

    oMs Yolande Margaret Richards, Retired Enrolled/Practice Nurse dated 12 September 2022

    oMs Manli Yi, Sales Clerk (China) (Ming Yi’s younger sister), dated 27 April 2021

    oMs Minzhe Li, Teacher (China) (Ming Yi’s friend), dated 6 May 2021

    • Chinese household and identity documents including Paul Bradshaw
    • Photos of the applicants with full descriptions of context and setting
    • Evidence of travel, Paul Bradshaw 2018, 2019
    • Bank statements of Xiyao Tong (daughter of Ming Yi), November & December 2020
    • Driving logs of Xiyao Tong and Paul Bradshaw, December 2022 to February 2023
    • Beneficiary statement of Paul Bradshaw
    • Further transaction statements between Paul Bradshaw and Xiyao Tong, 2021, 2022

30. The Tribunal has considered all aspects of the relationship.  

31. The Tribunal has determined that there is a demonstrated clear mutual commitment to a shared life together. This is initially indicated through the fact the couple are married and they have declared their marriage to a government body in both The Peoples Republic of China and Australia. It is also indicated through the fact that despite being substantially separated for most of the past 4.5 years, the review applicant and visa applicant appear to have remained mutually committed to each other. They assert their love for each other and claim it has survived the time they have been forced to spend apart. It appears from the statements made the ongoing regular utilisation of electronic communication technology has been important in achieving this.

32. The Review Applicant and Primary Visa Applicant displayed a relatively consistent understanding of each other’s lives and show a genuine mutual interest in one another. They appear to support one another in all aspects of their life, that is, financially, socially, and emotionally in-spite of the limitations imposed by distance. This was reinforced by the Statutory Declarations provided to both Department and then to the Tribunal as listed in paragraphs 26 and 27. Ms Nicole Felicity Parson, Social Worker, dated 16 September 2019, Mr Abraham Tomich, Machine Operator, 16 September 2019, Ms Elizabeth Ann Dean, Medical Receptionist, dated 16 September 2019 and Ms Stella Annie Martin, Bar Attendant, dated 16 September 2019. It is noted by the Tribunal that all bar one of the declarants have met the visa applicant multiple times and the in the case of the declarant who has met her only once the introduction occurred in her home.

33. The relationship is in the view of the Tribunal both genuine and continuing. This was clearly and unambiguously reinforced by the testimony of the review applicant’s mother and the visa applicant’s daughter.

34. There is no evidence before the Tribunal that the visa applicant and the review applicant have any intention to live separately apart on a permanent basis. The current separation was imposed upon them by the confluence of the Covid 19 pandemic and the visa refusal by the Department.

    Financial Aspects of the Relationship

35. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.

36. In relation to any joint ownership of real estate or other major assets, the Tribunal has determined that the couple do not jointly own any major assets or real estate. This is not in the opinion of the Tribunal unusual for a couple of moderate means, currently housed in two different countries, planning to live together in Australia.

37. It is noted that the daughter of the visa applicant has been residing in the house of the review applicant for some years whilst she has undertaken studies in a South Australian University. He has assumed all the financial day to day costs associated with her board and lodgings in his home and has provide her with monetary assistance, in a manner you might reasonably expect a parent to undertake. This was verified by related Bank Statements viewed by the Tribunal.

38. The Tribunal accepts there is no documented evidence the applicants have assisted each other with financial support over the years of their relationship. The Tribunal accepts the evidence that the visa applicant and the sponsor are moderately financially secure and relatively independent as would reasonably be expected at this stage in their respective lifecycles. It is fair to contend that their self-sufficiency strengthens the genuine claim of their relationship as the Tribunal can conclude that the intentions of each party are not hinged on whatever financial gain one might have over the other. This was canvassed at the hearing and the Tribunal was convinced of the genuineness of the responses.

39. The Tribunal received no evidence that the couple have any joint liabilities in either of their home countries.

40. The Tribunal has been provided with a copy of the sponsor’s Superannuation Fund stating the 100% beneficiary is his wife, Ms Ming Yi.

41. The Tribunal has accepted the evidence from the couple that the visa applicant and sponsor are currently saving for their life together when she relocates to Australia and joins her husband and child. Claims have been made that suggest some financial forward planning has been undertaken by the couple which were explored at hearing.

42. It well understood that it is not usually possible to establish a joint bank account with a foreign national, even if they are spouses, as a direct result of Australia’s appropriately stringent “money laundering” legislation. When this was explored during the hearing it was also clearly articulated that there had been no need to set up banking arrangements due to the financial independence of the couple. The Tribunal notes the ongoing utilisation of an Australian Bank Account by the secondary applicant with the sorts of transactions expected of a student studying abroad being in part supported by her mother and stepfather.

43. The Tribunal notes the evidence presented of the secondary applicants Bank Statements which clearly indicate her home address as the same as the sponsor’s home address. They date from November 2020.

44. Whether one person in the relationship owes any legal obligation in respect of the other. The Tribunal has determined that aside from the usual legal obligations associated with a marriage, the couple have not provided any evidence to indicate any additional legal obligations, nor is there any evidence before it from any source to indicate otherwise. The secondary applicant is legally an adult.

45. The basis of any sharing of day-to-day household expenses. The Tribunal acknowledges that the couple have lived apart for a considerable period of time post marriage and will continue to do so until the review applicant is able to bring his wife to his home in Australia. Therefore, there is little verifiable evidence of day to day sharing of household expenses aside from the claimed joint financial contributions made by the couple whenever they have been co-located in either China or Adelaide.

46. The Tribunal accepts as reasonable the statements made by both parties relating to the financial support issue associated with the sponsor’s stepdaughter, living in the sponsor’s home. It also accepts that when the applicants visit each other’s homes in their respective countries they assume the majority of the visitor’s living expenditure.

47. The Tribunal places substantial weight on the evidence in support of the financial aspects of the relationship, whilst accepting the limitations imposed by the ongoing geographic separation.

    Nature of the Household

48. In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

49. Any joint responsibility for the care of children. The Tribunal notes that the couple have not commenced a family as a couple. The visa applicant has independently raised 1 dependent child who has resided for some years in the sponsor’s home whilst she completes her university studies. This commenced in 2019. It appears from statements the couple individually made, that future planning has not been focussed upon having children as a couple although it is a topic which has been discussed. It accepts and is sympathetic to the fact that there are biological and social realities associated with their aging.

50. The living arrangements of the visa applicant and the sponsor are clearly not of their own making. The couple have principally been separated by geography post their marriage for substantial periods of time. However, when the opportunity arose for cohabitation, it has occurred. This was as stated previously corroborated by written witness statements, Statutory Declarations and departmental travel records. It is noted that the couple have been able to cohabit on 7 occasions, (5 trips to China by the sponsor and 2 trips to Adelaide by the visa applicant). In addition, the Tribunal has been furnished with Temporary Residence Registration documents required by the local authorities when the sponsor was visiting his wife in China. The Tribunal is cognisant of the Chinese local official’s strict adherence to following temporary residence regulations. This very clearly indicates cohabitation occurring in a public manner. The Tribunal accepts the evidence as accurate and has no information before it which would indicate the contrary view.

1. Any sharing of responsibility for housework. The Tribunal notes little opportunity has existed to share household responsibilities other than during their brief cohabitations in each other’s homes when the applicants have travelled to be with each other. The Tribunal accepts the statement made by their representative, ‘…..the duration of Mr Bradshaw and Mrs Yi’s visits to each other were not lengthy enough to establish a household routine. However, during those short periods of visitation, as Mr Bradshaw and Mrs Yi both resided in each other’s houses, each of them respectively would help with the household chores like cooking and cleaning and supporting each other……’ It is not possible to verify this other than the photographic evidence presented prior to and at the hearing, although the Tribunal believes it reasonable to accept the various statements in relation to these claimed facts as accurate.

2. As already stated, Ms Yi’s daughter has been residing in Adelaide since 2019 and Mr Bradshaw has been looking after her daughter since her arrival and she has resided with him from the age of 18, once the University organised home stay arrangements were completed. The following corroborative evidence was perused by the Tribunal. Shared Address evidence included Bank Statements, addressed mail, Emergency Contact Information of the secondary applicant, photographs in Adelaide, Driver’s License of the secondary applicant. It is claimed that Mr Bradshaw prepares meals for his stepdaughter and they eat together as a family, although less frequently as she becomes more independent.

3. Written and verbally corroborated evidence has been presented to the Tribunal that Mr Bradshaw took care of the secondary applicant when she was sick, most notably when she had contracted shingles in August 2019. Mr Bradshaw bought medicines and eventually picked her up from her original homestay and took her to hospital. He waited with her until she got the treatment she needed. Also, when she contracted COVID-19, Mr Bradshaw bought her food and medicines to make sure she had enough supplies at home. These are actions of a commitment indicating a household relationship.

4. The secondary applicant is currently learning to drive. Documentary evidence has been provided to show clearly the review applicant’s involvement in the process as well as purchasing a modest vehicle for his stepdaughter. Receipts were produced.

5. The Tribunal acknowledges and accepts, which aligns with the testimony at the hearing, the following statement made on behalf of the applicants by their representative.

   .….‘While Mr Bradshaw and Mrs Yi are not living together and are unable to fully demonstrate, in the conventional sense, the shared responsibility for housework, there is more than enough evidence to show that there is joint responsibility for the care and support of their child, Yaya. While Yaya is Mrs Yi’s child from her previous marriage, Mr Bradshaw treats her as his daughter. He exerts effort to support Yaya with whatever she may need and provide parental guidance. There is no obligation on Mr Bradshaw to do this for her but he does it anyway for his genuine love for his family.’…..  The Tribunal carefully observed the familial pattern of interaction between the review applicant and the secondary visa applicant. It was left in no doubt of the genuine closeness which was being illustrated. The testimony and reactions of the review applicant’s mother during the hearing were similarly observed and likewise showed a genuine mutual familial fondness. 

6. The Tribunal places substantial weight on the cumulative evidence presented in relation to the nature of the household due to the extraordinary external circumstances inflicted upon the couple.

   Social Aspects

7. In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

8. The review applicant and primary visa applicant claimed that they present themselves to society as a married couple and as a couple in a committed relationship. The Tribunal has formed the view that this is reasonable to accept from the fact that the review applicant and primary applicant have provided photographic evidence of themselves in a diverse range of social settings in the presence of immediate family and friends as well as their travel pictures. The Tribunal has carefully examined all the photographs. It notes the comment made by the delegate that the small number of photographs presented to them were not of an intimate nature. This is not the case at this juncture and the Tribunal accepts the photographs provided as natural and realistic. It also observes that these are worldly wise mature people who are not expected to behave like “giddy adolescents”.

9. This was further reinforced by their Statements, Statutory Declarations and Statements made by close friends and family members of both members of the couple. The Tribunal places substantial weight upon the statements made by the sponsor’s mother and the visa applicant’s daughter.

10. The Tribunal is comforted by the fact that the majority of the Statutory Declarations and subsequently updated current personal statements, indicate that the visa applicant is well known through multiple social interactions to the declarants

11. The Tribunal notes and accepts as fact that the couple have been unable to spend much time together due to the travel restrictions imposed by the Covid-19 pandemic and the visa refusal. This has naturally made it difficult to amass large quantities of evidence over substantial time periods demonstrating social engagement.

12. It is noted that the couple have been diligent in spending as much time together as was possible when considering their work and business schedules as well as the border restrictions placed upon travel imposed upon the Chinese population, well past the point at which the Australian Government relaxed the Covid-19 border restriction measures. They have undertaken 7 trips between them from 2018 to visit each other’s homes.

13. In the Tribunal’s past experiences of this culture, if the community did not in fact view the couple as married and in a sustained relationship, they would have been shunned for having an affair out of wedlock. This would be particularly poorly viewed by an in situ traditional Chinese community. In addition, a child is involved so the shame of inappropriate cohabitation would be reflected upon them as well as the extended family units.

14. The Tribunal places substantial weight upon the cumulative evidence provided in support of the social aspects of their relationship in combination with the geographic circumstances of the relationship participants.

    Nature of the Commitment

15. In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following.

16. The duration of the relationship. The Tribunal was presented with a range of written testimony, clearly showing that the relationship evolved over a substantial time-period from their initial meeting post an online meeting initiated by the sponsor. Major issues such as when the relationship commenced, the wedding date, the subsequent living arrangements over time and the understanding of the respective families and friends were explored. Their desire to see the couple reunited and have a happy family life together, have all been detailed and cross-referenced appropriately with written evidence.

17. The length of time they have lived together. As previously stated, the couple have not lived together for lengthy periods of time, due to circumstances the Tribunal accepts are out of their control. It accepts that they have lived together as man and wife post the marriage, for as many relatively brief periods of time available to them and more than might be expected in a relationship punctuated by a global pandemic.

18. The degree of companionship and emotional support that the persons draw from each other. The Tribunal was convinced by the assertions of the couple, which were additionally supported by the various Statutory Declarations/Statements and written witness testimony that the relationship is mutually emotionally nourishing. The demeanour of the visa applicant and the sponsor coupled with family and friends demonstrated photographically to the Tribunal the emotionally genuine nature of the relationship and the couple’s desire to progress their lives together. It again notes that both members of this couple are mature people in the middle of their adult lives and as such and it is not expected to see some of the flamboyant expressions of a love or a relationship a young couple are prone to express.

19. The Tribunal is in no doubt that substantial mutual emotional support is provided to the visa applicant and the sponsor and accepts that this is likely to continue, into the future when they reunite. It is noted the sponsor has indicated that, if necessary, he will join his wife and domicile himself in China.

20. Further, it has been demonstrated Mr Bradshaw has been continuously caring and looking after his stepdaughter since 2019. He appears to have fulfilled the role of a parent to her, supporting his stepdaughter. He provides food, accommodation, allowance, and most importantly, guidance and support as well as his time and energy.

21. It is noted on a recent work/study related placement document, that Mr Bradshaw is listed as the “Emergency Contact”. This is not an action usually undertaken by a casual acquaintance without some form of more meaningful relationship.

22. The Tribunal determines the evidence provided to demonstrate regular ongoing communication between the visa applicant and the sponsor further strengthens the body of evidence supporting the genuineness of this relationship. Substantial bodies of evidence were presented to demonstrate to the Tribunal that a range of communication devices and methodologies are regularly employed. This is further corroborated by Witness Statements / Statutory Declarations. It is acknowledged that some of the more popular chat mechanisms are unavailable to Australian and Chinese citizens however communication has clearly existed through more traditional means involving telephones and video chat mechanisms.

23. The Tribunal once again refers to the fact that the couple have been attempting to start a life together for 5 years, 4.5 years following their Marriage. This demonstrates commitment. As does the unambiguously demonstrated involvement of the visa applicant’s child and the stepparent role undertaken by the sponsor.

24. The Tribunal places substantial weight upon the cumulative evidence provided in support of the couple’s commitment to each other.

25. On the basis of the above, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

26. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

27. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

28. The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 309 visa:

    ·cl 309.211 of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    ·The Tribunal finds that the secondary applicant’s application should be considered in the context of the delegate’s decision regarding the primary applicant satisfying the remaining criteria for a subclass 309 visa decision.

    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).