DAI (Migration)

[2019] AATA 4286

DAI (Migration) [2019] AATA 4286 (2 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chenglian DAI

VISA APPLICANTS:  Mrs Yun Deng
Mr Hongsen Zhang

CASE NUMBER:  1809768

DIBP REFERENCE(S):  2013023743 OSF2013/098990 OSF2013023743

MEMBER:Justin Owen

DATE:2 October 2019

PLACE OF DECISION:  Sydney

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

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

The Tribunal finds the second-named applicant meets the following criteria

• cl.309.311 of Schedule 2 to the Regulations.

Statement made on 02 October 2019 at 4:38pm

CATCHWORDS
MIGRATION – refusal – Partner (Provisional) (Class UF) visa – Federal Circuit Court remittal – valid marriage in China – joint finances in Australia – joint ownership of major assets – resided together and shared a household in PR China – social aspects of relationship – privacy – family and friends unaware of marriage – inconsistencies outweighed by other consistent evidence – genuine, continuing long-term relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 309.211(2), 309.221, 309.331

CASE
He v MIBP

[2017] FCAFC 206

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 Immigration on 25 February 2014 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 18 March 2013 on the basis of their relationship with their 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 cl.309.221 of Schedule 2 to the Regulations. The delegate found that the relationship between the review applicant and the visa applicant did not meet the definition of ‘spouse’ provided in s5F of the Act.

4. The delegate’s decision was affirmed by the then Migration Review Tribunal (MRT) on 28 April 2015.  The applicant appealed to the Federal Circuit Court for judicial review of the Tribunal’s decision.  On 28 March 2018 the Federal Circuit Court made orders quashing the MRT decision of 28 April 2015 and remitting the matter to the Tribunal for reconsideration according to law. 

5. The review applicant appeared before the Tribunal on 18 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the first-named visa applicant Mrs Yun Deng, the review applicant’s daughter Mrs Anna Susero and the review applicant’s nephew Mr Wu Zhuong. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the parties are in a spousal relationship as stated by cl.309.211 and cl.309.221 in Schedule 2 of the Regulations.

   Whether the parties are in a spouse or de facto relationship

8. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

9. ‘Spouse’ is defined in s.5F of the Act and 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). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There is no evidence before the Tribunal to suggest the review applicant and visa applicant’s marriage in PR China on 3 August 2012 was not valid. The Tribunal notes the validity of the marriage was not disputed by the delegate. In the absence of any evidence to the contrary, the Tribunal finds 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 spouse relationship met?

11. The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2).

    Financial aspects of the relationship

12. In respect of the financial aspects of the relationship between the review applicant and the visa applicant the Tribunal has considered the joint ownership of real estate or other major assets; joint liabilities; the extent of any pooling of financial resources; and any legal obligations owed to the other party; and any sharing of day-to-day expenses.

13. The Tribunal accepts the evidence that the review applicant and visa applicant enjoy joint ownership of real estate.  In 2018 the parties completed the purchase of an off the plan apartment in Mount Colah.  The review applicant provided the Tribunal a title search that confirms the parties are the registered proprietors of the apartment 34/522-524 Pacific Highway, Mount Colah as joint tenants.  There is evidence the property settled on 21 June 2018.  The Tribunal notes the voluminous WeChat records the review applicant has supplied that highlight the long discussions the parties have had concerning the property over many months prior to and post-purchase.  The Tribunal finds the parties have joint ownership of real estate and gives this significant positive weight. 

14. The Tribunal has considered whether there is evidence of any other major assets at the time of decision.  There is no evidence of any other major assets in the name of both the applicant and sponsor at the time of decision.  Given the parties do not currently reside in the same country, the Tribunal gives the matter little weight.    

15. There is voluminous evidence before the Tribunal of joint liabilities between the applicant and sponsor.  The Tribunal notes the evidence that has been submitted of a registered mortgage (number AN457124) over the Mount Colah apartment which is in the names of both the review applicant and the visa applicant.  The registered mortgage records that both the visa applicant and the review applicant are mortgagors.  The mortgage is to Perpetual Corporate Trust Limited.  This document was submitted at the Tribunal hearing of 18 September 2019 with the loan agreement that was signed by both the visa applicant and the review applicant dated June 2018.  The Tribunal notes there was some misunderstanding by the visa applicant as to the structure of the mortgage at the hearing on 18 September 2019 but accepts the confusion came about as the loan agreements being discussed were in English.  The Tribunal has noted the visa applicant is working in the real estate sector in PR China and the income which she earns is being utilised to service the loan.  The Tribunal notes the bank statements of the review applicant that illustrate some lump sum payments for the mortgage which are made by the visa applicant to the review applicant.    The Tribunal notes the WeChat records the review applicant has provided is illustrative of the discussions of the review applicant and visa applicant as they moved towards taking out the loan and servicing the loan.  The Tribunal finds it is satisfied that the visa applicant and review applicant have extensive evidence of significant joint liabilities together.  The Tribunal gives this positive weight.  The Tribunal also notes that the evidence submitted of the mortgage and the payments made by the visa applicant and review applicant – often via the visa applicant sending monies to the review applicant’s bank account for scheduled payments -  are significant evidence of a pooling of financial resources in relation to a major financial commitment.     

16. The Tribunal has considered whether one person in the relationship owes any legal obligation in respect of the other.  The Tribunal accepts the review applicant and visa applicant signed a legally binding contract to purchase a property that settled in 2018.  That property, of which they are joint tenants, has a mortgage.  Both parties are listed as mortgagors.  The Tribunal finds the review applicant and visa applicant have significant legal obligations to each other at the time of decision.       

17. The Tribunal has considered the sharing of day to day household expenses.  The Tribunal notes from bank records the review applicant provided that the visa applicant does from time to time make contributions to his Westpac and St George bank accounts for the purposes of mortgage repayments on their Mount Colah property.   There is no evidence before the Tribunal as to how the applicant and sponsor share day to day expenses at the time of decision. Given the parties reside in different countries the Tribunal gives little weight to this consideration and makes no finding on this matter. 

18. On the basis of the above evidence, the Tribunal finds it is satisfied that the visa applicant and review applicant have shared financial responsibilities and joined their finances collectively in a meaningful way.   The Tribunal considers the purchase of a property as joint tenants; the establishment of a mortgage in both parties names; and the evidence of monies being transferred from the visa applicant to the review applicant for what the Tribunal considers is clearly mortgage repayments is evidence that the parties are sharing their financial responsibilities.  The Tribunal found this sharing of financial responsibilities was reflected in the copious WeChat records of the parties which the Tribunal found to be spontaneous, detailed and genuine.   The Tribunal, whilst acknowledging that the fact the parties live in different nations makes sharing other financial responsibilities problematic, finds on the evidence before it, it is satisfied that the visa applicant and review applicant have both shared financial responsibilities and to a significant degree joined their finances collectively in a meaningful way.  The is joint ownership of major assets in an apartment and joint liabilities through a mortgage in both parties names.  The Tribunal finds there are legal obligations owed by the parties to each other.   The Tribunal finds, having reviewed all the evidence before it, that it is satisfied that the evidence of the financial aspects of the applicant and sponsor’s relationship is indicative of a spousal relationship at the time of decision. 

    The nature of the household    

19. The Tribunal has considered the nature of the parties’ household, including any joint responsibility for the care and support of children; the parties living arrangements; and any sharing of housework.

20. There is no evidence before the Tribunal or claim made of any children from the claimed relationship between the applicant and sponsor.  Both parties have adult children who have provided evidence that they are strongly supportive of the relationship.   As there are no children of the relationship the Tribunal makes no finding as to any joint responsibility for the care and support of children. 

21. The Tribunal has considered the parties living arrangements.  The review applicant currently lives in Westleigh with his daughter, son in law and grandchild.  The visa applicant lives offshore in Hainan.  The Tribunal notes from the evidence before it that the review applicant and visa applicant resided together and shared a household in PR China for the majority of time between late 2016 and April 2018 when the review applicant returned to Australia to care for his daughter who gave birth to his granddaughter a few months later.  The Tribunal has noted the consistent oral testimony of the witnesses.  The Tribunal has noted the multiple times the review applicant travelled to PR China between February 2012 and April 2018 and is satisfied on the evidence before it that whilst offshore the review applicant was residing with the visa applicant.  The Tribunal has taken into account the MRT’s doubts from the 2015 oral testimony of the review applicant’s daughter and her comments as to where the review applicant was residing whilst in PR China.  The Tribunal, having considered the testimony of the review applicant, visa applicant and the review applicant’s daughter at its hearing in September 2019 does not share those concerns.  The Tribunal accepts that the review applicant may occasionally have stayed overnight with another relative on his numerous trips to PR China but in its totality considers the review applicant and visa applicant were residing together for the period of their married relationship.  The Tribunal accepts the previous testimony of the review applicant’s daughter that she didn’t ask her father where he was staying every night and reasonably assumed from time to time he might stay with a close relative such as his sister.   

22. The Tribunal notes the doubts that were previously articulated by the delegate and the MRT concerning the living arrangements of the parties whilst the review applicant was in PR China.  The Tribunal notes the review applicant has subsequently provided 4 Residence certificates registering himself as a foreign national from 3 September 2016, 23 March 2017, 1 August 2017 and 6 January 2018 that state he was living at 11A Yitage Haian Yihao Apartment, No. 1 Shimao North Road, Haikou, Hainan.  There is no evidence before the Tribunal to suggest that these Residence certificates are not genuine.  The Tribunal notes that this address is the same residential address that was supplied for the visa applicant as part of the original visa application in 2013.   The Tribunal notes from the review applicant’s passport that these Certificates each correlate with the review applicant’s visits to Haikou to visit the visa applicant.  The Tribunal is satisfied that these Residence Certificates constitute corroborative evidence of the review applicant and the visa applicant sharing a household between 2016 and 2018 whilst the review applicant was in Hainan.  The Tribunal notes the delegate and the MRT’s previous concerns about the lack of a Residency certificate.  The Tribunal explored the matter at the hearing with the review applicant conceding he did not register on his earlier trips as he was unaware of the requirement on his visits dating back to 1995 and no one had ever asked.  He stated that as soon as he was aware he registered with the Police station and provided the strata to the authorities.  Given the review applicant has provided documentation of his registration from 2016 onwards, the Tribunal is prepared to accept that this evidence speaks to the relationship and accepts he was residing with the visa applicant prior to this time.           

23. The Tribunal furthermore notes that the review applicant and visa applicant’s detailed and voluminous plans suggest they have genuine living arrangements in place for the future.  Both parties have invested an enormous amount of time and energy in establishing plans for the future through the purchase of an apartment in Mount Colah in both their names and the taking out of a mortgage in both their names.           

24. On the evidence before it the Tribunal finds it is satisfied that the applicant and sponsor established joint living arrangements at the time of application, have maintained such arrangements since marriage and the review applicant’s last visit in 2018 and continue to make genuine plans as such at the time of decision.  

25. The Tribunal has considered any sharing of responsibility for housework.  The review applicant and visa applicant provided generally consistent testimony as to how they share housework whilst residing together.  Given the parties have not resided together since April 2018, the Tribunal notes there is no corroborative evidence before the Tribunal or claim made of any sharing of the responsibility for housework at the time of decision.  The Tribunal nevertheless based on the testimony of the parties is satisfied that they have shared responsibility for housework.  The Tribunal finds the review applicant and the visa applicant have shared responsibility for housework. 

26. The Tribunal finds the visa applicant and the review applicant did establish a household together during the review applicant’s multiple and numerous trips to PR China between 2012 and 2018.  The Tribunal finds the parties have worked hard to build the foundations to establish a future household together since that time.  The Tribunal on the evidence before it is satisfied that the visa applicant and review applicant have previously established a household and intend to do so in the future.

    Social aspects of the relationship      

27. The Tribunal has considered the social aspects of the relationship between the visa applicant and the review applicant, including whether they represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which they plan and undertake joint social activities.

28. The Tribunal notes the previously expressed concerns of the delegate and the MRT concerning the knowledge of external parties as to how the review applicant and visa applicant represent themselves as married to each other.  The Tribunal discussed its concerns with the parties at the hearing. 

29. The review applicant in his oral testimony stated that he had kept his marriage and relationship with the visa applicant relatively private.  He conceded that some of his family and friends were unaware.  He stated that was because he had already been married twice before and was relatively introverted.  Both the review and visa applicant spoke of some friends in Sydney that knew of their marriage and the review applicant’s youngest sister.  The review applicant’s daughter and nephew each provided oral testimony confirming their knowledge of the marriage as well as the background to the relationship.  The visa applicant in her oral testimony stated that given she and the review applicant had been married before they had decided to keep their relationship relatively quiet as a new marriage was not a glamourous event and they would be judged on the basis of previous unsuccessful relationships.   

30. The Tribunal acknowledges that there is limited evidence before it as to the knowledge external parties have of the relationship between the review applicant and the visa applicant.  The Tribunal found the review applicant’s oral testimony nevertheless to be candid, spontaneous and, in its opinion, an honest testimony as to his life with the visa applicant.  The Tribunal accepts the claims of the review applicant – and his daughter – that the review applicant is a private man.  The Tribunal is prepared to accept that at his age – over 70 – and after two failed marriages he has a reticence at sharing his new married relationship with relatives that may be close from a biological perspective but in reality he has little contact with.  The Tribunal has taken into account 888 forms previously submitted as part of this application and is, in the context of the broader evidence before it, prepared to accept the claims of the review applicant and the visa applicant that, whilst the parties do not actively go to inform some family members about their relationship, they nevertheless represent themselves to a range of parties that they are married to each other. 

1. Similarly, the Tribunal has considered the opinion of the review applicant and visa applicant’s family and friends as to the nature of the claimed relationship.  The Tribunal found the review applicant – a former doctor – to be both shy and reserved and is satisfied he has little desire to be part of a wide social circle.  His priorities appear to be his grand-daughter as well as the visa applicant. The Tribunal has placed some weight on the oral testimony of his daughter and nephew who each gave, in the Tribunal’s opinion, spontaneous and unblemished evidence as to the personality and character of the review applicant and, in the case of the nephew who is familiar with both parties, the visa applicant.  Given the age of the parties and their relationship history, the Tribunal is prepared to accept that they are each at a point in their lives where they are not prioritising the public exhibition of their relationship to other parties including their broader families.  The Tribunal accepts the evidence of the opinion of the parties’ family and friends is limited but considers the evidence that is it before it – the review applicant’s daughter and nephew – attest to the genuineness of the relationship.  The Tribunal found the review applicant’s daughter Mrs Susero in particular to be an impressive witness: a highly-educated and considered woman who is very close to her father and, in the Tribunal’s opinion, gave straightforward, direct and unrehearsed testimony concerning the genuineness of the relationship.  The Tribunal considers there is little utility for Mrs Susero or the review applicant’s nephew Mr Zhuong to give false or misleading testimony to the Tribunal.  Nevertheless the Tribunal has considered their evidence closely and is satisfied that, whilst the testimony from family and friends is limited, the evidence which is before the Tribunal is consistent, reliable and suggests that the family and friends closest to the review applicant and visa applicant are of the view the relationship between the parties is genuine.  The Tribunal furthermore notes the evidence that other parties such as the visa applicant’s mother and father were aware of the claimed relationship and attended events such as the wedding whilst other family members like the review applicant’s youngest sister were also both aware and supportive. The Tribunal, on balance, finds that family and friends of the review applicant and visa applicant were both aware of and supportive of the claimed relationship.  The Tribunal notes the numerous photographs the review applicant has submitted from multiple years now of the parties engaged together in PR China with both family members and friends.  The Tribunal has also given positive weight to the evidence of Gordon Lee and Ruiquin Deng, who both the review applicant and visa applicant volunteered as a couple they have socialised in PR China but who are now in Sydney and have attested to the genuineness of the claimed relationship.        

2. The Tribunal has considered the basis on which the review applicant and visa applicant plan and undertake social activities.  The review applicant said that he enjoyed cooking, shopping and walking to the beach with the visa applicant.  He made clear he was not particularly outgoing but preferred to spend time with the visa applicant, his immediate family or watching TV and sports like NBA basketball and soccer.  The visa applicant confirmed this in her own testimony and said that the review applicant prefers the quieter life.  The Tribunal considered the testimony of the parties to be limited but, on the basis of the wider testimony of the review applicant and the visa applicant, is prepared to find that, on the evidence before, it that the parties whilst together do plan and undertake social activities together, however limited such activities are for parties that are both ageing and not especially extroverted. 

3. The Tribunal finds on the evidence before it that the claimed relationship between the visa applicant and review applicant does enjoy some social recognition evidencing a spousal relationship.  The Tribunal concedes the corroborative evidence on this matter is not particularly detailed but, on the basis of the totality of the evidence before it, the Tribunal finds that the evidence of the relationship nevertheless satisfies it to the genuineness of the claimed spousal relationship.         

   Nature of persons’ commitment to each other

4. The Tribunal has considered the duration of the relationship; the length of time the visa applicant and review applicant have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

5. The Tribunal has considered the claimed duration of the relationship.  The Tribunal notes that the review applicant between 2012 and 2018 made multiple trips to PR China to reside with the visa applicant.  As discussed previously in this decision record, the Tribunal is satisfied that the review applicant was residing with the visa applicant for the overwhelming majority of the time he was in PR China.  The Tribunal has observed the voluminous and substantial evidence that has been presented of the WeChat records between the parties between March 2016 and May 2018 and August 2018 to May 2019.  The records amount to many hundreds of messages which, after review, the Tribunal is satisfied they are both genuine and indicative of the abiding nature of the claimed relationship between the parties.  The Tribunal considers the corroborative evidence as well as the oral testimony of the review applicant, the visa applicant, the review applicant’s daughter and his nephew all indicate that the relationship has continued for the duration the visa applicant and review applicant has claimed.  On the evidence before it, the Tribunal finds the parties have remained in a relationship between the time of application up until the time of decision. 

6. The Tribunal has considered the length of time the parties claim to have lived together.  The Tribunal notes the review applicant was last in PR China in April 2018.  The Tribunal notes that this just a few months before the arrival of the review applicant’s first grandchild.  The review applicant lives with his daughter and according to her oral testimony has played an important role in caring for her daughter.  Both the review applicant and visa applicant stated in oral evidence that the visa applicant told the review applicant to remain in Australia to care for and assist look after his new granddaughter.  The Tribunal is prepared to accept that that was the case.  The Tribunal notes that until this time the review applicant was visiting PR China on a regular basis for months at a time.  The Tribunal notes the corroborative evidence that he was residing at the address of his wife the visa applicant.  The Tribunal furthermore notes that after he departed PR China in April 2018 he nevertheless continued to remain in close contact with the visa applicant via WeChat (as indicated by the detailed and extensive records submitted) and furthermore both settled the contract for the purchase of an apartment in both their names and commenced repaying a mortgage loan which is in the names of both the review and visa applicants.  The Tribunal finds that the review applicant and visa applicant lived together in PR China for the periods of time – notwithstanding the occasional visit of the review applicant to a family member -  they have claimed between 2012 and April 2018.

7. The Tribunal has considered the degree of companionship and emotional support that the persons draw from each other. The review applicant at the Tribunal hearing discussed the support and mutual understanding he and the visa applicant have and provide each other.     The Tribunal notes the oral testimony of the review applicant’s nephew to the hearing.  The review applicant’s nephew who introduced the parties together and knew the visa applicant for 4-5 years prior to her meeting the review applicant provided an extensive background of the development of the relationship and how the parties each fulfil the other’s need for companionship and support. The Tribunal found that the review applicant and visa applicant have a sound knowledge of each other’s lives.  They are for instance aware of each other’s previous health issues, are entirely consistent on each other’s likes and dislikes and retain a sound and solid knowledge of each other’s family and past marriages.  The Tribunal finds it is satisfied that the review applicant and visa applicant are drawing companionship and emotional support from each other.

8. The Tribunal has considered whether the parties consider the relationship to be a long-term one.  The Tribunal found the review applicant and visa applicant to consider the relationship between them to be a long-term one.  The Tribunal notes that despite the rejection of their claims by the MRT in 2015, the relationship continued with multiple long-term visits by the review applicant to Hainan after this time where he was registered as residing at the visa applicant’s residence.  During this time he and the visa applicant signed contracts to jointly purchase a property.  They took out a loan and a mortgage in both their names.  The visa applicant made significant payments to the visa applicant’s bank account at the time mortgage payments were due.  The relationship continues to enjoy the support and endorsement of parties such as the daughter of the review applicant, the son of the visa applicant and the review applicant’s uncle who introduced the parties.  The Tribunal is satisfied on the evidence before it that the parties consider their relationship to be a long-term one.            

9. The Tribunal is aware of the alleged inconsistencies in evidence from the review applicant and the visa applicant the MRT and the delegate identified in their respective decisions.  These inconsistencies included whether the review applicant gives the visa applicant massages, parties that attended the wedding and the working hours and investments of each other.  The Tribunal accepts the parties have previously given occasional inconsistent answers on a limited number of questions but considers any inconsistencies are outweighed by what it considers is the voluminous, persuasive and consistent testimony and corroborative evidence presented as to the genuine and ongoing nature of the claimed relationship.  The Tribunal found the review applicant in particular to be a dedicated, committed and determined individual that has a strong desire to see his relationship with the visa applicant succeed.  The Tribunal in particular considers the substantial evidence the parties have provided from WeChat over many years as significant.  The Tribunal accepts the WeChat records as genuine and consider they accord with other evidence that has been submitted by the review applicant in support of his application.               

   Findings

10. The Tribunal is satisfied that the parties’ marriage is valid for the purposes of the Act as required by s.5F(2)(a).

11. The Tribunal is satisfied that at the time of application and at the time of decision the review applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and the relationship is genuine and continuing. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

12. The Tribunal is also satisfied that at the time of application and at the time of decision the parties meet the requirement of s.5F(2)(d) for a married relationship, in that they do not live separately and apart on a permanent basis.

13. For these reasons, the Tribunal is satisfied that at the time the visa application was made the parties were in a ‘married relationship’ within the meaning of s.5F(2) of the Act. The Tribunal further finds at the time of decision, they continue to be in a married relationship.

14. The Tribunal therefore finds that at the time of the visa application, the visa applicant was the spouse, within the meaning of s.5F of the review applicant, who is an Australian citizen, and meets the requirements of cl.309.211(2) of Schedule 2 to the Regulations. Therefore the visa applicant meets cl.309.211.

15. Further the Tribunal finds that at the time of the Tribunal’s decision the visa applicant continues to be the review applicant’s spouse, and so continues to meet cl.309.211, and therefore meets the requirements of cl.309.221 of Schedule 2.

16. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

17. Therefore the visa applicant meets cl.309.211 and cl.309.221.

18. The secondary applicant is the thirty-one year old son of the visa applicant.  The Tribunal finds he is a member of the family unit of, and made a combined application with, a person (the visa applicant) who satisfies the primary criteria in cl.309.21.  Therefore the secondary applicant meets cl.309.311.

19. Given the findings 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

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

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

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

    ·cl.309.311 of Schedule 2 to the Regulations

    Justin Owen
    Senior Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).