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

1. 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).

2. 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.

3. 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.

4. 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

5. This review application relates to an application for a provisional partner visa to enable the applicant to remain in Australia on a temporary basis.

6. 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.

7. ‘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 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).

8. In forming an opinion about these matters, the Tribunal must have regard to all the circumstances of the relationship, including the financial and social aspects of the relationship, the nature of the applicant and sponsor’s household and their commitments to each other, as set out in reg 1.15A(3). Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

9. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139.

10. 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 EVIDENCE

    Background

11. 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?

12. 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.

13. 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

14. 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.

15. 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.

16. 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.

17. 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

18. 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.

19. 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.

20. 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

21. There is compelling evidence before the Tribunal regarding the social aspects of the relationship: including photographs of the couple’s wedding; photographs of the couple with friends and family; statements and statutory declarations from friends and family; and the oral evidence provided by the couple and their witnesses.

22. I accept this evidence and find that at the material times, the couple represent themselves to other people as being in a married relationship, that the couple’s family, friends and acquaintances believe the relationship between the couple to be genuine and continuing and that the couple plan and undertake joint social activities. The social aspects of the relationship are indicative of a married relationship, as defined in the Act.

    Nature of persons’ commitment to each other

23. The couple have been married and lived together for six years. They provided oral evidence detailing how they support each other, the importance of their relationship to each other and their future plans. Their oral evidence was supported by the witnesses’ evidence and other documentary evidence before the Tribunal.

24. I accept this evidence and find that the couple draws companionship and emotional support from each other commensurate with a married relationship and that they see the relationship as long term. I find that, at the material times, the nature of the commitment is indicative of a married relationship, as defined in the Act.

    Conclusion

25. Having regard to the findings set out above, I am satisfied that, at the material times, the couple have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship is genuine and continuing and that the couple live together or do not live separately and apart on a permanent basis for the purposes of s 5F(2)(b) to (d) of the Act.

26. Accordingly, I am satisfied that the requirements of s 5F(2) are met and that, at the time the visa application was made and at the time of this decision, the couple were and are in a married relationship, as defined in the Act. Therefore, the applicant meets cl 820.211(2)(a) as the applicant is the spouse of the sponsor, who is an Australian citizen.

    Are the other visa criteria met?

27. As the primary issue has been resolved in the applicant’s favour, it is incumbent on the Tribunal to consider whether the applicant met the other requirements of cl 820.211(2) at the time of application, and whether the applicant continues to meet those requirements at the time of this decision, in accordance with cl 820.211(1)(a).

28. For the following reasons, the Tribunal is satisfied that these requirements are met.

29. Clause 820.211(2)(c)(i) requires that, if the applicant’s spouse has turned 18, the applicant is sponsored by the spouse of the de facto partner. Reg 1.20 relevantly provides that the ‘sponsor’ of an applicant is a person who provides an undertaking to assist the applicant, to the extent necessary, financially and in relation to accommodation during the period of 2 years immediately following the grant of the temporary visa.

30. There is evidence before the Tribunal that the sponsor completed the department’s Form 40SP – Sponsorship for a partner to migrate to Australia, which included the relevant undertaking, on 27 November 2024. There is no evidence before the Tribunal that the sponsor has withdrawn their sponsorship. Accordingly, I am satisfied that at the material times, the applicant was and is sponsored by their spouse in accordance with cl 820.211(2)(c).

31. 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

32. 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

    Date(s) of hearing:  11 December 2024 and 12 February 2025

    Representative for the Applicant:           N/A