Kuang (Migration)

[2024] AATA 3840

Kuang (Migration) [2024] AATA 3840 (2 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hongxia Kuang

REPRESENTATIVE:  Mr Alan Dino Duri (MARN: 1684393)

CASE NUMBER:  2320278

DIBP REFERENCE(S):  BCC2023/2671284

MEMBER:Margie Bourke

DATE:2 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

Statement made on 02 October 2024 at 12:21pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing spousal relationship – financial, household and social aspects of relationship and nature of commitment – validly married – detailed and credible evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 309.211(2), 309.221

CASES
Bretag v MILGEA [1991] FCA 755
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 23 November 2023 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 May 2023 on the basis of her relationship with her sponsor, 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, in this case the visa applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied the evidence and information provided by the applicant was sufficient to demonstrate she was the spouse of the sponsoring partner as defined by s.5F of the Act.

4. Prior to the hearing, the Tribunal wrote to the applicant to advise that the same member had been constituted this review who had presided over a previous review, in which the applicant was the review applicant. The Tribunal had affirmed the decision of the Department in that decision by the Tribunal. The review applicant confirmed that she had no concerns about the same member conducting both reviews, and consented to the same member presiding over this review.

5. The applicant appeared before the Tribunal on 18 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, who also attended the hearing. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The interpreter attended the hearing, but as the hearing went over time, the interpreter had to leave, and a second interpreter was engaged by the Tribunal who attended the hearing by telephone.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

8. 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. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the sponsor who is an Australian citizen by grant. 

9. ‘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), which is extracted in the attachment to this decision. 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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the registered Victorian marriage certificate, the Tribunal is satisfied that the applicant and the sponsor were married at East Melbourne on 4 December 2022, and the marriage was registered on 5 January 2023. 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).

    Information and evidence provided to the Tribunal

11. The Tribunal has considered the information and evidence provided to the Department, and the assessment in the Department’s decision record dated 23 November 2023, that there was insufficient evidence provided with the application for the visa to demonstrate the applicant was the spouse of the sponsoring partner. The Tribunal accepts this assessment at the time of the Department’s decision record as a correct assessment of the evidence and information provided to the Department.

12. In a letter dated 12 August 2024, the Tribunal invited the applicant to provide further information prior to the hearing. The Tribunal specified that it invited the applicant to provide evidence including signed statements from members of the applicant’s and the sponsor’s family, and from friends and members of the community. The Tribunal specified that it invited the applicant and the sponsor to provide a recent detailed statement about the current circumstances of their relationship. The Tribunal advised that further evidence should include documents and information about the financial aspects of their relationship, about where the applicant and the sponsor reside, about their household including the living arrangements and responsibilities, about the social aspects of their relationship and about the commitment they have to each other and the support they give to each other and their long-term plans.

13. Prior to the hearing the applicant provided submissions to the Tribunal which included a statement from the applicant about the relationship, a substantial number of photographs and a four-page joint bank statement dated 14 August 2024 which did not record regular household expenses.

14. At the hearing the applicant and sponsor were the only persons who attended to give evidence. The evidence given by the applicant and the sponsor at the hearing was detailed and credible, and disclosed a breadth of knowledge and understanding that indicated the relationship between the applicant and the sponsor was a genuine spousal relationship.

15. The Tribunal discussed with the applicant and the sponsor that the information and evidence provided in support of the application was insufficient. The applicant and the sponsor had referred, in their oral evidence, to the existence of documents, and the time they had spent as a married couple with family and friends, including travelling to China to meet their respective families. The Tribunal advised it would provide the applicant a further opportunity to provide information and evidence to support the application for review.

16. Subsequently the applicant provided the Tribunal with signed statements (some translated) from the sponsor’s father, from the applicant’s sister, from a friend of the applicant who had attended their wedding, and from a friend of the applicant and the sponsor. The applicant also provided energy bills in joint names dating from December 2023 and a series of credit card statements in the sponsor’s name also dating from December 2023.

17. The Tribunal has applied the principles espoused in Bretag v MILGEA [FCA] 1991, and has considered the evidence provided of the subsequent history of the relationship between the applicant and the sponsor after the time of application, which logically assists to determine the existence or nonexistence of facts relevant at the time of application.

    Are the other requirements for a spouse relationship met?

18. Financial aspects of the relationship: – the Tribunal is satisfied that the applicant and sponsor do not jointly own real estate or other major assets. The Tribunal is satisfied that the sponsor owns an apartment in Melbourne which is currently tenanted, owns the property in Clifton Springs where the parties reside and which is subject to mortgage, and is a partner in a café in Malvern. The Tribunal is satisfied that the applicant and the sponsor do not have joint liabilities, excluding the electricity utility bills which are in joint names for the property in Clifton Springs. The Tribunal is satisfied that the sponsor was working as an accountant up until mid 2024, and the applicant has worked as a yoga instructor on a private lesson basis at various venues since prior to the time of application. The Tribunal is satisfied that the parties do not pool their resources in relation to major financial commitments, but do operate a joint bank account, and the applicant has access to one of the sponsor’s American Express credit card accounts. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. The Tribunal is satisfied that the parties share day-to-day household expenses by sharing their income, and utilising the American Express credit card account for household expenses.

19. The evidence of the financial aspects of the relationship indicates that the parties are in a genuine and continuing relationship at the time of application and at the time of decision.

20. Nature of the household: – the Tribunal is satisfied that the applicant and the sponsor do not have any joint responsibility for the care and support of children. The Tribunal is satisfied based on the evidence before it of the living arrangements of the parties, that they have resided together as a married couple since the time of their marriage in December 2022. The Tribunal is satisfied that the parties share the responsibility for housework, essentially based on the work commitments of the other party, which has varied since the time of application.

21. The evidence of the nature of the household indicates that the parties are in a genuine and continuing relationship, and lived together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

22. Social aspects of the relationship: – the Tribunal is satisfied based on the detailed translated statement from the applicant’s sister, detailed translated statement the sponsor’s father, the two statements from friends of the applicant, and of the applicant and the sponsor who reside in Victoria, and the two statutory declarations provided to the Department from friends of the applicant who reside in New South Wales, that the applicant and the sponsor represent themselves to other people as being married to each other. The Tribunal is satisfied that the opinion of the persons’ relatives, friends and acquaintances is that their relationship is steadfast, enduring, caring and happy. The Tribunal is satisfied that the applicant and the sponsor plan and undertake joint social activities around their employment commitments. The Tribunal is satisfied that the applicant and sponsor enjoy travelling, and travelled to China in 2023 to introduce each other to their respective families. The Tribunal is satisfied the applicant and sponsor plan outdoor activities, including surfing which is a passion of the sponsor. The Tribunal is satisfied based on the photographs provided that the applicant and sponsor socialise together.

23. The evidence of the social aspects of the relationship indicates that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, and are in a genuine and continuing relationship, at both the time of application and at the time of decision.

24. Nature of the persons’ commitment to each other: – the Tribunal is satisfied that the applicant and the sponsor were married on 4 December 2022, and have lived together since that date. The Tribunal notes the parties claim they have lived together prior to the marriage but based on the insufficient evidence the Tribunal makes no findings in relation to the parties residing together prior to their marriage. The Tribunal is satisfied that at the time of application, 4 May 2023, the parties had resided together for five months, and had been married for five months. The Tribunal is satisfied that at the time of this decision the parties have resided together for 22 months, and have been married for 22 months. The Tribunal is satisfied that the parties provide a degree of companionship and emotional support to each other, including the support provided by the applicant to the sponsor in relation to his mother’s death particularly as he could not return to China due to the pandemic to be with her. The Tribunal is satisfied the sponsor has provided support to the applicant as she struggled to create a career as a yoga teacher, including driving her to the community centre or to the train station prior to her obtaining her drivers licence. The Tribunal is satisfied the applicant provided support to the sponsor, when he was struggling with satisfaction from his career as an accountant. The Tribunal is satisfied that the applicant and the sponsor see their relationship is long-term, and plan to have children in the future.

25. The evidence of the nature of the persons’ commitment to each other indicates that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, are in a genuine and continuing relationship, and live together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

26. Conclusion: – the Tribunal has considered all the circumstances of the relationship as required under reg 1.15A(3), and is satisfied that at the time of application (by applying the principles espoused in Bretag, in addition to assessing the evidence before it) and at the time of decision based on the oral and written evidence before it, that the applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, are in a genuine and continuing relationship, and live together, and not separately and apart, on a permanent basis.

27. Therefore the Tribunal is satisfied that the relationship between the applicant and the sponsor meets the requirements of s.5F(2) (a), (b), (c) and (d).

28. 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 at the time of this decision.

29. Therefore the visa applicant meets the requirements of cl.309.211 and cl.309.221.

30. 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

31. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

    Margie Bourke
    Senior Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).