Chen (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309 (Spouse (Provisional)), made by the visa applicant, who claimed to be the spouse of the review applicant, an Australian permanent resident. The core dispute revolved around whether the parties were in a genuine and continuing spousal relationship as required by the Migration Regulations 1994. The decision was made by Hugh Sanderson, a Member of the Tribunal.

The Tribunal was required to determine whether the visa applicant was the spouse of the review applicant, as defined by section 5F of the Migration Act 1958 and regulation 1.15A of the Migration Regulations 1994. Specifically, the Tribunal had to assess if the parties were validly married and, if so, whether they demonstrated a mutual commitment to a shared life, a genuine and continuing relationship, and whether they lived together or not separately and apart on a permanent basis. The assessment was to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married in China on 18 March 2016, satisfying the requirement for a valid marriage. However, the Tribunal expressed concerns regarding the genuineness and continuation of the relationship, particularly in relation to the financial aspects. The existence of a joint bank account, opened while the visa applicant was in Australia on a visitor visa prior to their marriage, was scrutinised. The Tribunal noted that the visa applicant could deposit funds directly into the review applicant's sole account, suggesting the joint account may have been established primarily to generate evidence of a genuine relationship rather than for practical financial management.

Consequently, the Tribunal remitted the visa application for reconsideration. The direction was that the first named visa applicant met the criteria for a Subclass 309 visa, implying that further assessment was required to satisfy the genuineness and continuation requirements of the spousal relationship. The application for the second named visa applicant, who applied as a member of the family unit, was also to be reconsidered in full.