Han (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa (Subclass 801) by Ms Qing Han, who claimed to be in a spousal relationship with the sponsor, Mr Wei Zhu, an Australian citizen. The primary issue before the Tribunal was whether Ms Han and Mr Zhu were in a genuine and continuing spousal relationship, as required by the Migration Regulations 1994.

The Tribunal was required to determine whether the parties met the criteria for a spousal relationship under s 5F of the Migration Act 1958 and reg 1.15A of the Migration Regulations 1994. This involved assessing whether they were married, had a mutual commitment to a shared life to the exclusion of all others, and lived together or did not live separately and apart on a permanent basis. The assessment was to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other.

The Tribunal found that the parties had provided a valid marriage certificate and that the sponsor was indeed the sponsoring partner. However, the decision record indicated that the delegate's decision had not fully considered all the relevant criteria for a spousal relationship. The Tribunal noted that evidence of joint ownership of an apartment, pooling of financial resources, and joint care of the applicant's daughter were relevant factors to be considered under reg 1.15A(3).

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the primary applicant met the criteria for a Subclass 801 visa. The Tribunal also found that the secondary applicant was a member of the family unit of a person who satisfied the primary criteria.