Liu (Migration)

[2024] AATA 2779

Liu (Migration) [2024] AATA 2779 (25 July 2024)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ying Liu

REPRESENTATIVE:  Mr Peng Cheng (MARN: 1172863)

CASE NUMBER:  1934240

HOME AFFAIRS REFERENCE(S):          BCC2015/2546686 BCC2019/6876753

MEMBER:Ann Duffield

DATE:25 July 2024

PLACE OF DECISION:  Canberra

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)(a) of Schedule 2 to the Regulations

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

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

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

Statement made on 25 July 2024 at 2:49pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – length of relationship – short separation for work – significant evidence and documentation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 801.211, 801.221(2)(a), (b)(i), (c), (d)

CASE
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 2 December 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 September 2015 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 801.211because they were not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The applicant was represented in relation to the review.

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

   BACKGROUND

6. The applicant is a citizen of China born in August 1985. The sponsor is an Australian citizen.

7. The couple first met in 2012 and were married in April 2013. The parties lodged their application for the visa in September 2015. The applicant was granted a subclass 820 visa on 10 April 2017.

8. The department sent the parties a request for information to enable an assessment of the applicant’s eligibility for the subclass 801 visa in May 2019. The parties provided limited information in response to that request and despite further requests no additional information was provided. The delegate affirmed the decision on 2 December 2019.

9. On 10 October 2019 the sponsor sent an email to the department inquiring abut how he could withdraw his sponsorship of the applicant. He withdrew it the following day, explaining that he and the sponsor had a fight which had subsequently been resolved.

10. Between November 2022 and May 2024, the parties provided the Tribunal with significant documentation and evidence supporting their claims to have remained in a spousal relationship since their marriage in April 2013. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant continues to be the spouse of the sponsor for the purposes of the Migration Act.

    Whether the parties are in a spouse or de facto relationship

12. 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 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.

13. ‘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?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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 spouse relationship met?

15. The couple have provided the Tribunal with hundreds of pages of relevant, additional evidence covering the period from 2016 to the present which was not available to the delegate at the time of their decision. For the reasons below, the Tribunal is satisfied that the couple have been, and remain in a genuine, continuing spousal relationship and they do not live separately and apart on a permanent basis.

16. The Tribunal has considered the 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 couple have a joint account as well as their own separate accounts and they have provided documentary evidence of same. The couple have provided copies of rental agreements and bond transfers, household expenses, gifts, utilities bills in both their names, copies of the car loan and repayments and other expenses associated with the running of a shared household.

18. The Tribunal is satisfied that the financial aspects of the couple’s relationship support a finding that they are in a genuine and continuing marriage and that they live together and not separately and apart.

19. The Tribunal has considered the nature of the household - including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

20. The couple have no children but have been living together for 11 years. They have provided a detailed account of the way they manage their household and provided photos of their home and household purchases and other documentary evidence to support their claims.

21. The Tribunal has considered the 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.

22. The sponsor’s parents are supportive of the marriage and have visited the couple in Australia on several occasions, staying with them each time. The couple have provided photographic evidence of themselves together and with others at various social events from 2016 to the present.

23. The Tribunal is satisfied that the social aspects of the couple’s relationship support a finding that they are in a genuine and continuing marriage and that they live together and not separately and apart.

24. The Tribunal has considered the 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.

25. The parties have been married for 11 years. Apart from a short period of nine months between August 2018 and May 2019 when they lived separately because of work commitments, they have shared their lives. They have provided a lengthy, detailed, and plausible explanation of why they lived separately for this short period of time. The Tribunal accepts the explanation. They have been living at the same address in Wolli Creek now for the past three years.

26. The couple have given detailed accounts of the ways in which they have demonstrated their commitment to each other, for example when the applicant had dental surgery the sponsor took care of her and when the sponsor had to undergo knee surgery in 2017, the applicant took care of him. In 2021 the sponsor was assaulted, and the applicant attended the police station and hospital with him. There are documents attesting to these occurrences.

27. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision. Therefore, the applicant meets cl 801.221(2)(a),(b)(i), (c) and (d).

28. 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.

    DECISION

29. 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)(a) of Schedule 2 to the Regulations

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

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

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

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).