Chen Ting (Migration) - [2025] ARTA 428

CHEN TING (MIGRATION) [2025] ARTA 428 (14 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Shui Liu Chen Ting
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2108807

Tribunal:General Member Downes
Place:Brisbane
Date: 14 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:
·cl 820.211(2) of Schedule 2 to the Regulations
·cl 820. 221(1)(a) of Schedule 2 to the Regulations

Statement made on 14 February 2025 at 11:25am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – joint bank account – joint social activities – long term shared residence – sponsorship – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.15, 1.20
CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 2021 to refuse to grant the visa applicant (the applicant) a Partner (Temporary) (Class UK) Subclass 820 visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 September 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(c) of Schedule 2 to the Regulations, because the delegate was not satisfied that the applicant was ‘sponsored’ by the applicant’s ‘spouse’, within the meaning of the Act.
The applicant appeared before the Tribunal on 11 December 2024 and 12 February 2025 to give evidence and present arguments. The first hearing was adjourned to allow the applicant additional time to submit documentary evidence to support her claim. At the second hearing, the Tribunal received oral evidence from the sponsor, the applicant’s brother-in-law, and friends of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages, as necessary.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
ISSUES AND LAW
This review application relates to an application for a provisional partner visa to enable the applicant to remain in Australia on a temporary basis.
The primary issues are whether, at the time the visa application was made, and at the time of this decision, the applicant is the spouse of an Australian citizen, for the purpose of cl 820.211(2)(a) and cl 820.221 of Schedule 2 to the Regulations.
‘Spouse’ is defined in s 5F of the Act, which provides that a person is the spouse of another where the two persons are in a ‘married…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen Ting (Migration)

Details

AGLC: Chen Ting (Migration) [2025] ARTA 428
Case: [2025] ARTA 428
Decision Date: 14 February 2025

CaseChat Overview and Summary

Chen Ting, a Taiwanese citizen, sought judicial review of a decision to deny her a Partner (Temporary) (Class UK) visa under subclass 820. The dispute centred on whether she satisfied the requirements for a genuine and continuing relationship with her Australian citizen sponsor. The matter was heard in the Administrative Appeals Tribunal (AAT). The primary legal issue was whether the applicant met the criteria for a Subclass 820 visa, particularly whether she was in a genuine and continuing relationship with the sponsor. The court examined evidence of their financial, household, and social ties. The Tribunal found that the applicant and the sponsor were validly married and that their relationship satisfied the requirements for a married relationship, as defined in the Act. The evidence of their shared financial resources, joint residence, and social activities supported this finding. Consequently, the Tribunal concluded that the applicant met the criteria for a Subclass 820 visa. The decision to deny the visa was set aside, and the application was remitted for reconsideration with specific directions. The Tribunal ordered that the application be reconsidered with the direction that the applicant meets the criteria for a Subclass 820 visa, including cl 820.211(2) and cl 820.221(1)(a) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If the primary issues are resolved in the applicant’s favour, the secondary issues are whether, at the time of the visa application and at the time of this decision, the applicant satisfies the other requirements of cl 820.211 and cl 820.221 of Schedule 2 to the Regulations.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a 44-year-old citizen of Taiwan who was born in Vietnam. She is once divorced, with once child from that relationship, aged 17 years. She claims to be in a married relationship with the sponsor, a 59-year-old Australian citizen. The sponsor is twice divorced, with three adult children from one of his previous marriages.Are the parties validly married? The couple submitted a marriage certificate issued by the Registry of Births, Deaths and Marriages in Queensland certifying that they were married on 8 December 2018 at Point Arkwright. Accordingly, in the absence of any evidence to the contrary, I am satisfied that 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).Are the other requirements for a married relationship met?Financial aspects of the relationship At the material times, the couple claim to have one joint asset, being a joint account. They provided bank statements to corroborate their claim and accordingly, I accept it as true. The couple claim to pool their financial resources in the joint bank account and the applicant’s personal bank account and to share day-to-day household expenses. They provided oral evidence about how they manage their finances, and their evidence was supported by bank statements. Accordingly, I accept their claims as true and make findings accordingly. The couple do not claim, at the material times, to have any joint liabilities or to owe legal obligations to the other party. I make findings accordingly. Having regard to all the evidence, I find that, at the material times, the financial aspects of the relationship are consistent with a married relationship, as defined in the Act.Nature of the household The couple claim to have lived together at three addresses over the course of their relationship. They provided oral and written evidence as to their daily lives and the division of housework. They also provided corroborating documentary evidence, including correspondence addressed to them at the shared addresses and rental documentation. The witnesses also gave evidence that they have visited the couple at their shared addresses and some have stayed overnight at the shared addresses. I accept this evidence and find that, at the material times, the couple have lived together, that they have established a joint household, and that they share housework in a manner consistent with a married relationship. Any joint responsibility for care and support of children is not applicable as the applicant’s child lives offshore, and the sponsor’s children are adults. I find that, at the material times, the nature of the household is indicative of a married relationship, as defined in the Act. Social aspects of the relationship

Decision

Reasons for decision

Clause 820.211(2)(d) only applies to an applicant who was not the holder of a substantive visa at the time of application. As the applicant held a substantive visa at the time of application, it does not apply.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:·cl 820.211(2) of Schedule 2 to the Regulations·cl 820. 221(1)(a) of Schedule 2 to the RegulationsDate(s) of hearing: 11 December 2024 and 12 February 2025 Representative for the Applicant: N/A

Ratio Decidendi

Legal Principle Established

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