Ji (Migration)

[2023] AATA 4623

Ji (Migration) [2023] AATA 4623 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yuling Ji
Ms Liwen Ma

REPRESENTATIVE:  Ms Yifan Gao (MARN: 1684639)

CASE NUMBER:  1920048

HOME AFFAIRS REFERENCE(S):          CLF2014/67300 CLF2019/29910

MEMBER:Edward Howard

DATE:11 December 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl 801.221(2) of Schedule 2 to the Regulations

Statement made on 11 December 2023 at 11:34am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – parties are validly married – pool their resources for day-to-day household expenses and other financial commitments – parties’ household and living arrangements are consistent with that of a married couple in a genuine relationship – parties are in a genuine and continuing relationship – the relationship has ceased – relationship did exist at some point – applicant and sponsor – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cl 801.221  

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 16 July 2019 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the review applicant) applied for the visa on 7 May 2014 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 applicant did not satisfy cl 801.221.

4. The applicants appeared before the Tribunal on 29 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant and the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review.

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

   BACKGROUND

7. The evidence of the parties is that they met in July 2013 when the sponsor travelled to China to meet the review applicant. During his visit there the sponsor spent time with the review applicant and her daughter. Following his return to Australia, the parties kept in contact by phone and email.

8. The sponsor again travelled to China to visit the review applicant and her daughter in November 2013. During this visit the parties claim that the sponsor expressed his love to the review applicant and the parties committed to their relationship. The sponsor was introduced and spent time with the review applicant’s family during this visit.

9. The parties remained in contact and the review applicant travel to Australia in February 2014 with the sponsor paying for her airfare. Whilst the review applicant was in Australia, the sponsor proposed marriage and the parties were married on 12 April 2014.

10. The parties applied for a subclass 820 visa/subclass 801 visa on 7 May 2014. They were granted a subclass 820 visa on 20 April 2015.

    ISSUES AND LAW  

11. There is a two-stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The parties were granted a temporary subclass 820 visa on 20 April 2015. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the second, permanent stage.

12. 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 visa applicant and the sponsor were in a spousal 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] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.

    [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (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].

13. The issue in the present case is whether at the time of the visa application and the time of this decision, the review applicant is the spouse or de facto partner of the sponsor.

    Whether the parties are in a spouse or de facto relationship

14. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

15. ‘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 sponsor’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

16. 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).

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

17. The parties have provided the Tribunal with extensive evidence relating to the financial aspects of their relationship. The Tribunal is in receipt of joint bank statements from the parties together with joint credit card statements and joint invoices for utilities, including electricity, water and gas. The parties have also provided evidence of their strata title townhouse charges and Council rates notice.

18. The evidence also discloses the pooling of financial resources and the sharing of household and pooling of their resources for the payment of regular expenses from their accounts.

19. The parties have lived at the same residence in Riverwood together since 2014. The parties have provided documentation attesting to their continued residence at the property by reference to utilities invoices and Council rates notices.

20. The Tribunal is satisfied on the evidence of the parties, that they pool their resources for day-to-day household expenses and other financial commitments. The Tribunal is satisfied that both parties have contributed to the financial aspects of the relationship. The Tribunal weighs the financial aspects of relationship in favour of the review applicant.

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

21. As noted above, the parties commenced living together at the Riverwood residence in 2014. The parties have lived together, continuously, at this address as a married couple over a period of almost 10 years.

22. The Tribunal is satisfied that the parties’ household and living arrangements are consistent with that of a married couple in a genuine relationship. The Tribunal weighs consideration of the household aspects of the relationship in favour of the review applicant.

    Social aspects of the relationship – including whether parties 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 the persons plan and undertake joint social activities.

23. The parties have provided extensive evidence supporting their claim of being a married couple in a genuine relationship. The evidence demonstrates the clear recognition by other people, of the relationship between the parties, recognising the parties as a genuine couple over a period of almost 10 years.

24. The evidence includes statements in support from family members and friends of the parties who have known them for the entire time of their relationship.

25. The Tribunal is satisfied on the evidence that the parties represent themselves to other people as being in a married relationship, that they hold the favourable opinion of family, friends and acquaintances about the nature of the relationship and that they regularly plan and undertake joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the review applicant.

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

26. The evidence of the parties is that they met in July 2013 when the sponsor travelled to China to meet the review applicant. During his visit there the sponsor spent time with the review applicant and her daughter. Following his return to Australia, the parties kept in contact by phone and email.

27. The sponsor again travelled to China to visit the review applicant and her daughter in November 2013. During this visit the parties claim that the sponsor expressed his love to the review applicant and the parties committed to their relationship. The sponsor was introduced and spent time with the review applicant’s family during this visit.

28. The parties remained in contact and the review applicant travel to Australia in February 2014 with the sponsor paying for her airfare. Whilst the review applicant was in Australia, the sponsor proposed marriage and the parties were married on 12 April 2014.

29. The parties applied for a subclass 820 visa/subclass 801 visa on 7 May 2014. They were granted a subclass 820 visa on 20 April 2015.

30. The Tribunal is satisfied that the parties have a genuine financial relationship, that they pool their financial resources and share their household expenses. The Tribunal notes that the parties have lived together as a married couple at their residence in Riverwood for almost 10 years. The parties have provided extensive evidence of the favourable opinion of family and friends in relation to their marriage.

31. From the evidence provided, the Tribunal finds that the parties are in a genuine and continuing married relationship, show a strong commitment to each other, provide significant emotional support to each other and clearly see the relationship as long-term. The Tribunal weighs the nature of the commitment in favour of the review applicant.

32. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision. Further, the Tribunal is satisfied that the applicant meets cl 801.221(2).

33. The Tribunal notes that the delegate refused the second-named applicant on the basis that the review applicant had been refused.

34. The Tribunal finds that the second-named applicant satisfies the criteria of being a dependent of the review applicant pursuant to cl 105A(1)(a)(i) and (ii).

35. The Tribunal finds that at the time of application on 7 May 2104, the second-named applicant was aged 16 years and 8 months and a dependent child of the review applicant, thereby satisfying cl 801.311(2)(a).

36. At the time of this decision, the second-named applicant must satisfy cl 801.321.

37. In this regard, the Tribunal finds that the second-named applicant satisfies cl 801.321(a)(ii)(A), as she was previously the holder of a Subclass 445 (Dependent Child) visa, which ceased on the notification of the decision to refuse the review applicant a Subclass 801 visa.

38. 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 801 visa.

39. The delegate refused the second-named applicant on the basis that the review applicant had been refused. As the Tribunal has found that the review applicant has met cl 801.221(2) the appropriate course is for the Tribunal to also remit the second-named applicant to be reconsidered in light of the direction for the review applicant.

    DECISION

40. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl 801.221(2) of Schedule 2 to the Regulations

    Edward Howard
    Member