Cai (Migration)

[2024] AATA 582

Cai (Migration) [2024] AATA 582 (12 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  CAI Fei (Feng)

CASE NUMBER:   1935308

DIBP REFERENCE(S):  BCC2018/2976878

MEMBER:Angela Julian-Armitage

DATE:  12 March 2024

PLACE OF DECISION:  Brisbane

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

·cl 309.211 of Schedule 2 of the Regulations; and

·cl 309.221 of Schedule 2 of the Regulations

Statement made on 12 March 2024 at 11:07am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – financially independent – nature of the household – social aspects – nature of the parties’ commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; 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 Home Affairs on 10 October 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas pursuant to s 65 of the Migration Act 1958 (the Act).

2. The visa applicant (as opposed to the review applicant) applied for the visa on 8 August 2018 on the basis of her relationship with her 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 309.221 of the Regulations.

1.4.      The  sponsoring applicant and his wife, the visa applicant appeared before the Tribunal on 24 January 2024  to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

1. Despite the applicants having engaged the services of Ms Shouyi WU as their registered migration agent, Ms Wu did not attend the hearing until this Tribunal contacted her requesting that she do so given that she had been engaged and paid a fee for the  process of this review. Ms Wu attended the hearing by way of telephine.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in the present case is whether the visa applicant is the spouse of an Australian citizen or permanent resident  as defined in  s 5F of the Act for the purposes of clauses 309.211 and 309.221.

4. Section 5F(2) provides:

   
   

   …persons are in a married relationship if:
   (a) they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c) the relationship between them is genuine and continuing; and

   (d) they:

   (i) live together; or

   (ii) do not live separately and apart on a permanent basis.

5. In assessing the relevant requirements against s 5F(2) it is necessary to have regard to the requirements of reg 1.15A with respect to all circumstances of the relationship which includes what is commonly known as the  “4 Pillars”. These are the financial aspects, the nature of the household, the social aspects of the relationship and the nature of the parties’ commitment to one another.

6. It is worth noting that by the nature of the 309 visa and the fact that the visa applicant has not been granted a visa, some of the above aspects are neigh on impossible to satisfy. This is particularly so when married couples are not living in the same country. Dealing with each aspect of the parties’ relationship in turn:

   Financial aspect of the Relationship

7. The parties told this Tribunal separately that they are financially independent when it comes to the day to day needs each has. This is due to both parties enjoying a reasonably well remunerated occupation. The sponsor did, however, buy gifts such as jewellery and items of clothing for his wife and send it to her. The evidence is that since 2018, the visa applicant wife until very recently (late 2023) has resided with the sponsoring husband’s family in their 5 storey apartment building together with her parents-in-law, brother-in-law and his family. Whilst she occupied a floor for herself, meals were taken together with the family. The visa applicant has now relocated to Romania to take up a managerial position until she is able to come to Australia to be with her husband. Both parties gave evidence that they are saving in order to purchase a house in Australia once the visa applicant is able to come here.

8. The Tribunal is satisfied that the financial aspect of the relationship falls within the particular circumstance of the parties.

   Nature of the Household

9. As mentioned above, the parties are not legally able to live together due to the visa applicant not being able to legally reside in Australia. That said, the evidence is that prior to the pandemic, the parties did live together from 2017 to 2018 for a period of 8 or so months. During this period, they resided in the family’s complex which houses all of the member of the review applicant’s family and were assisted with chores by the family’s employed housekeepers. The only reason the review applicant has not retuned to China since his last rip is due to the pandemic being over and the restaurant where he works as a chef not ever having enough staff to deal with its needs. In addition, he told this Tribunal that he didn’t think the visa application and review process would take so long causing he and his wife to be separated for such long periods. When questioned as to how they have maintained their relationship after such long periods of separation, both parties told this Tribunal that they enjoy a very strong relationship and communicate very regularly almost on a daily basis time difference and work schedules allowing.

10. The Tribunal is satisfied that the nature of the household is, by necessity, one where they are not able to live together. However, that they will reside together should the visa applicant be granted her partner visa.

    Social Aspects of the Relationship

11. 15.      The parties told this Tribunal that they have few friends and mainly spend time with family. They have been separated by circumstances for a very long time and have not been able to socialise as a couple due to both the long period of the pandemic and more recently the lengthy period for the visa situation to be determined. The sponsor told the Tribunal that he has work colleagues who know of his relationship with whom he spends time with.

12. 16.      As mentioned above, the Tribunal accepts the difficulties endured by the parties due to the nature of the visa the applicant seeks not permitting her entry to Australia. It is also poignant that the sponsor has been prevented from travel to China due to the pandemic and his work commitments. It is safe to assume and understandable that the parties would be thinking that they must be getting close to a resolution. Hence, they are waiting it out so to speak until they reach the end of this process.

    1.Nature of the Commitment to each other

13. The Tribunal heard evidence from each party without the presence of the other. Both the visa applicant and the sponsor professed their commitment to one another and stated that their relationship and marriage over the past 5 or so years has only become stronger. The sponsor added the following:

    “It might be difficult for westerners to understand [that] after marriage we focus on responsibilities not passion - we have goals- we are not wealthy, we have a lot to consider and overall, we have decided jointly that we will work together to achieve our goals”.

14. On the evidence before this Tribunal, it is obvious that the parties meet the requirements of 309.211 and 309.221 in so far as having to live apart due to the visa grant issues and the review applicant’s work commitments.

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

    DECISION

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

    ·cl 309.211 of Schedule 2 to the Regulations; and

    · cl 309.221 of Schedule 2 to the Regulations

    Angela Julian-Armitage
    Member