Hu (Migration)

[2024] AATA 1059

Hu (Migration) [2024] AATA 1059 (23 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Rongquan Hu

VISA APPLICANTS:  Ms Qingqing Ding
Miss Xinyue Ding
Master Junhui Ding

REPRESENTATIVE:  Mr Nan Cao (MARN: 0103659)

CASE NUMBER:  1931724

DIBP REFERENCE(S):  BCC2018/2329659

MEMBER:Kira Raif

DATE:23 April 2024

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

Statement made on 23 April 2024 at 2:01pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

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

CASES
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 Home Affairs on 6 November 2019 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) is a national of China, born in January 1984. She applied for the visa on 30 May 2018 on the basis of her relationship with the sponsor. The application includes her two minor children. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 and cl. 309.221 because the delegate was not satisfied the visa applicant was the spouse of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 23 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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.

5. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

6. ‘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            reg 1.15A(3). Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

7. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The visa applicant provided with the application evidence that  she and the review applicant registered their marriage in China in October 2017. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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?

8. The couple claim to have been introduced by the visa applicant’s employer and they met in a restaurant in Shandong. They had dinner together and started communicating on WeChat. They had several more meetings and at the end of January 2017 the sponsor introduced the visa applicant to his family. The sponsor made several visits to China to see the visa applicant and her children and the couple were married in October 2017 in the presence of family and friends. The sponsor made other trips to China and had spent over a year with the visa applicants in China between 2020 and 2022.

9. The Tribunal has had regard to the financial aspects of the relationship. There is evidence that the review applicant  has been supporting the visa applicants since the marriage. The visa applicant presented with the application evidence of regular money transfers. The couple’s oral evidence to the Tribunal is that since the marriage, the visa applicant stopped working and has been relying on the review applicant for her financial needs.

10. The Tribunal has considerable concerns about aspects of that evidence. For example, the review applicant told the Tribunal that the visa applicant contributed $20,000 towards the purchase of his property in Australia while the visa applicant stated that she did not contribute and she could not recall having ever sent a substantial amount of money to the review applicant. The review applicant told the Tribunal that the visa applicant may have forgotten but given that the transfer supposedly took place in the past six years, the Tribunal does not accept the visa applicant would have forgotten about such a significant payment.

11. The Tribunal also notes the review applicant’s evidence that the visa applicant has over $40,000 in savings. In such circumstances it is unclear why there is a need for the review applicant to send money to the visa applicant and to support her.

12. Nevertheless, the evidence indicates that the visa applicant is reliant on the review applicant for her financial needs. The Tribunal accepts that the parties are willing to pool their resources.

13. The review applicant provided to the Tribunal evidence of joint property ownership. However both the review applicant and the visa applicant told the Tribunal that the property was given to the review applicant by his mother around 2000 and the visa applicant’s name was included in the certificate in 2021 when they were required to obtain a new certificate. Both told the Tribunal that the visa applicant had not contributed to the property in any way (although the review applicant told the Tribunal she pays the bills). The Tribunal is not satisfied the property is jointly owned. There is little other evidence of joint ownership of assets or joint liabilities.

14. The Tribunal has considered the nature of the household. The evidence before the Tribunal is that the visa applicant has made regular and frequent visits to China since the marriage and, significantly, he has lived in China for over two years during the Covid period. The parties claim they lived in the same household.

15. The Tribunal found the couple’s evidence concerning the care and support of children to be problematic. For example, the review applicant claims that he has a good relationship with the visa applicant’s children. However, he also told the Tribunal that he had not made any inquiries with the schools in Australia about the children’s future schooling arrangements (the visa applicant told the Tribunal that he did). The review applicant and the visa applicant gave different answers about the daughter’s future aspirations and her engagement in extra-curricular activities. Significantly, the review applicant told the Tribunal that only the younger child attended the wedding while the older child had school commitments while the visa applicant stated that both of her children attended the wedding. The review applicant sought to explain it by stating there were many children at the wedding but in the Tribunal’s view there is a difference between children who are general guests and one’s step-children.

16. The Tribunal has formed the view that the review applicant’s relationship with the children is not as close as he claims it is. The Tribunal has formed the view that the review applicant had not been truthful in describing his relationship with the visa applicant’s children and that he had deliberately sought to misrepresent the nature of that relationship to support the visa application.

17. The Tribunal has considered the social aspects of the relationship. A number of social photographs and third party statements had been provided with the primary application and there are additional statements and photographs before the Tribunal, including statements from the sponsor’s siblings and the visa applicant’s mother.

18. The Tribunal acknowledges the delegate’s concerns that during the interview the visa applicant could not recall the names of the sponsor’s guests at the wedding (the review applicant suggested she was nervous while the visa applicant told the Tribunal she did name some of the guests) and the visa applicant’s evidence that she did not inform her colleagues about the relationship (the review applicant stated that by that time the visa applicant lost contact with her colleagues). Nevertheless, the evidence suggests that the couple had planned and undertaken joint social activities and that they represent themselves to others as being in a genuine relationship.

19. The relationship has been in existence for a period of approximately seven years. There is before the Tribunal evidence of the couple’s contact during that period and the Tribunal notes that they had spent considerable periods together since the marriage, particularly during the review applicant’s lengthy residence in China in 2020 – 2022. The Tribunal places significant weight on the fact that the visa applicant and the review applicant are trying to have a baby and there is evidence before the Tribunal of the visa applicant having a miscarriage and the sponsor seeking treatment. In the Tribunal’s view, that suggests the couple view the relationship as a long term one.

20. As noted above, the Tribunal has considerable concerns about aspects of the relationship and aspects of the parties’ evidence. The Tribunal considers some of the inconsistencies in their oral evidence, noted above, to be significant and the Tribunal has formed the view that the parties have not been truthful in all aspects of their claims. Nevertheless, having considered all the circumstances, the Tribunal has decided to give greater weight to the duration of the relationship, the length of time the parties have spent together, their desire for a child and the couple’s financial arrangements. On balance, the Tribunal is satisfied that the visa applicant and the review applicant have a mutual commitment to shared life to the exclusion of others. The Tribunal finds that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. 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 the time of this decision. Therefore the visa applicant meets cl 309.211 and cl 309.221

    Conclusion

21. 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

22. 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

    Kira Raif
    Senior Member