Friedrich (Migration) - [2021] AATA 4849

Friedrich (Migration) [2021] AATA 4849 (6 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Trevor John Friedrich
VISA APPLICANTS:  Ms Chunyan Zhao
Ms Yue Zhang
CASE NUMBER:  1823447
DIBP REFERENCE(S):  BCC2016/3152715
MEMBER:Meredith Jackson
DATE:6 December 2021
PLACE OF DECISION:  Brisbane
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(2) of Schedule 2 to the Regulations
·cl.309.221 Schedule 2 to the Regulations

Secondary applicant to be reconsidered on the basis of the direction given for the primary applicant.

Statement made on 06 December 2021 at 9:00am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – regular visits – funds for the applicant and stepdaughter’s studies – provisions in the sponsor’s will – social support for the relationship – rapid development of the relationship – regular communication – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15
CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 June 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) Chunyan Zhao applied for the visa on 22 September 2016 on the basis of her relationship with her sponsor Trevor John Friedrich, 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.
The delegate who refused to grant the visa was not satisfied that the applicant is the spouse, of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen as defined under section 5F of the Act. Accordingly, the delegate was not satisfied that the applicant meets the requirements of subclause 309.211(2) of the Regulations.
The review applicant appeared before the Tribunal on 2 December 2021 to give evidence and present arguments. The applicant was not represented. The hearing was assisted by an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The review applicant and sponsor is Trevor John Friedrich, aged 65, a citizen of Australia. Mr Friedrich is a farmer and…

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 Friedrich (Migration)

Details

AGLC: Friedrich (Migration) [2021] AATA 4849
Case: [2021] AATA 4849
Decision Date: 6 December 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) (Subclass 309) visa by Chunyan Zhao, a resident of China, and her adopted daughter, Yue Zhang. The sponsor was Trevor John Friedrich, an Australian citizen. The parties were introduced by a match-making agent in August 2015, met in person in December 2015, and were married shortly thereafter. Mr Friedrich had visited Ms Zhao in China four times since their marriage. The review was heard by Meredith Jackson, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether Ms Zhao was the spouse or de facto partner of Mr Friedrich at the time of the visa application and continued to satisfy this criterion at the time of the Tribunal's decision, as required by clauses 309.211 and 309.221 of Schedule 2 to the Migration Regulations 1994. The definition of "spouse" under section 5F of the Migration Act 1958 requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and that the couple live together or not separately and apart on a permanent basis. The Tribunal was required to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married under Australian law, satisfying the requirement of section 5F(2)(a). However, the Tribunal noted that evidence of events after the visa application could be considered if it logically demonstrated the existence or non-existence of the relationship at the time of application. While the Tribunal did not make a final determination on the genuineness and continuation of the relationship, it concluded that the second applicant, Yue Zhang, was a full-time student wholly dependent on Ms Zhao.

Consequently, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration. The direction was that the first applicant, Chunyan Zhao, met the criteria under clauses 309.211(2) and 309.221. The reconsideration of the second applicant's visa was to be based on the outcome of the primary applicant's reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The review applicant and sponsor is Trevor John Friedrich, aged 65, a citizen of Australia. Mr Friedrich is a farmer and farm owner who has been twice married and twice divorced. He has five biological children from the two marriages, each aged over 18. The primary visa applicant is Chunyan Zhao, aged 48 years, a resident of China. She is a hotel employee in Hailin who declares one marriage and divorce. The secondary applicant is Yue Zhang, aged 19, who is her adopted daughter, included in the visa application. In August 2015 the parties were introduced through a match-making agent, Ms Ellen Wu, of Brisbane. On 9 December Mr Friedrich travelled to China to meet the applicant in person and the parties were married on 14 December 2015. Ten days later, Mr Friedrich returned to Australia. He has visited the applicant in her home country four times since.ISSUES AND LAW There is a two stage process for this Partner visa. An applicant must first hold a Partner (Provisional) (Class UF) (Subclass 309) visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a Partner (Migrant) (Class BC) (Subclass 100) permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years after the combined application for the visas was made. The Tribunal is considering the application for the provisional visa. The issue in the present case is whether the applicant was the spouse or de facto partner of the sponsor at the time of the visa application (cl 309.211) and continues to satisfy the criterion at the time of this decision (cl 309.221).CONSIDERATION OF CLAIMS AND EVIDENCEWhether the parties are in a spouse or de facto relationship 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. ‘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.

Evidence

Evidence Before The Court

The issue in the present case is whether the applicant was the spouse or de facto partner of the sponsor at the time of the visa application (cl 309.211) and continues to satisfy the criterion at the time of this decision (cl 309.221).CONSIDERATION OF CLAIMS AND EVIDENCEWhether the parties are in a spouse or de facto relationship 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. ‘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. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. 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.[1][1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Pochi (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].Are the parties validly married? If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a Marriage Certificate issued by the Marriage Registration (sic) of Civil Affairs Administration of Harbin, China. for a marriage between her and Trevor John Friedrich with a registration date of 14 December 2015. 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).

Decision

Reasons for decision

The second named applicant Yue Zhang was aged 14 at the time of the visa application. At the time of this decision, Yue Zhang is aged 19 years. The parties have given evidence that Yue Zhang is a full time student at Harbin University and wholly dependent on the visa applicant. As the applicant’s entitlement to a visa is wholly dependent on the grant of a visa to the first-named applicant, the appropriate course is to remit the application to the Minister for reconsideration of the remaining criteria for the visa.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(2) of Schedule 2 to the Regulations·cl.309.221 of Schedule 2 to the RegulationsSecond named applicant to be reconsidered on the basis of the direction given for the primary applicant.Meredith JacksonMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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