Friedrich (Migration)

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.