Chiu (Migration)

[2022] AATA 2898

Chiu (Migration) [2022] AATA 2898 (8 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wan-Fen Chiu

CASE NUMBER:  1819180

HOME AFFAIRS REFERENCE(S):          BCC2016/4233199

MEMBER:M. Edgoose

DATE:8 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl 820.211(2)(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 08 July 2022 at 9:47am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and ongoing relationship – applicant and sponsor have married since refusal – joint bank account – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.15

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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 14 December 2016. The delegate refused to grant the visa on 12 June 2018.

2. The applicant applied for the visa on 14 December 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) as the delegate was not satisfied that the applicant and sponsor were in a genuine de facto relationship and did not see the relationship as a long-term one.

4. Since 12 June 2018 when the delegate refused the applicant’s visa application the applicant and sponsor have since married and submitted to the Tribunal a range of evidence that demonstrates that they are in a genuine spousal relationship.

5. On 7 July 2022 the Tribunal received several submissions in support of the applicant and sponsor being in a genuine relationship. The documents included a copy of their marriage certificate, a current joint Westpac bank statement, numerous photos, social media posts, evidence of joint flights and travel and a statement from the couple regarding their relationship history.

   Are the parties validly married?

6. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant submitted to the Tribunal a copy of the Certificate of Marriage between the applicant and sponsor that took place on 20 May 2020 before a Julia Zhang, a Civil Marriage Celebrant, at 1 Devlin Court, Rosanna Victoria. 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).

7. Given the evidence submitted by the applicant the Tribunal is satisfied that the applicant and sponsor meet the requirements of reg 1.15A(3). The evidence submitted includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other. Given this 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.

8. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   decision

10. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl 820.211(2)(a) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations.

    M. Edgoose
    Member