Liu (Migration)

[2024] AATA 284

Liu (Migration) [2024] AATA 284 (15 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jiande Liu

VISA APPLICANTS:  Ms Wei Wang
Miss Yiru Hu

REPRESENTATIVE:  Mr David Tianhua Yang (MARN: 0744792)

CASE NUMBER:  2101228

DIBP REFERENCE(S):  BCC2019/1459325

MEMBER:Anne Grant

DATE:15 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with directions that:

The first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cls 309.211, 309.212 and 309.213 of Schedule 2 to the Regulations; and

·cl 309.221(1)(a) of Schedule 2 to the Regulations; and

The second named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa;

·cls 309.311 and 309.312 of Schedule 2 to the Regulations.

Statement made on 15 February 2024 at 2:47pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – nature of commitment and financial, household and social aspects of relationship – time spent living apart in home country – sponsor’s elderly parents’ health, and applicant’s work, mother’s health and child’s school – COVID travel restrictions and advisories – travel and joint activities when possible and extensive communication – member of family unit child – sponsor’s relationship with and financial support for second applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 15A(3), Schedule 2, cls 309.211(2), 309.212, 309.213, 309.221(1)(a), 309.311, 309.312

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 February 2021 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 primary applicant) applied for the visa on 22 March 2019 on the basis of their relationship with their 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. Other members of the family unit who are applicants for the visa (in this case, the second applicant) need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the primary applicant did not satisfy cl 309.211 because they were not satisfied that the primary applicant and sponsor were spouses at the time of application.  Consequently the second applicant, whose application relied on her mother satisfying the primary criteria, was also refused a visa.   

4. The review applicant appeared before the Tribunal by video connection using the Microsoft Teams Application on 19 January 2024 to give evidence and present arguments.   Both the visa applicants and sponsor were together in China on the date of hearing.  The Tribunal also received oral evidence from the sponsor’s sister Ms Jianmei Liu.    

5. The review applicant was represented in relation to the review, and the agent attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the primary applicant and the sponsor were spouses at the time of application and if so, whether they were spouses at the time of making this decision. 

8. The Tribunal has considered the evidence submitted by the parties at the time of applying for the visa and as submitted to the Tribunal during the process of review.  Where relevant the information is referred to below.  In this case, the evidence given by the parties and by the sponsor’s sister at hearing was informative, consistent and of significant assistance in understanding the history of their relationship.

9. The primary applicant and sponsor state that they met online using a connection application on 26 July 2018, that the sponsor travelled from Australia to China in September 2018 and then travelled to the primary applicant’s home town of Anshan and met her in person.  The sponsor returned to China (Shanghai)  in mid-January 2019 and the primary applicant travelled to be with him there.  They later travelled to Anshan together and registered their marriage.  They married on 28 January 2019.  The sponsor returned to Australia on 19 February 2019. 

10. According to movement records, the sponsor next travelled to China again on 17 March 2019 and returned to Australia on 2 April 2019.  The sponsor again travelled to China on 19 May 2019, (returning on 27 May 2019), and on 14 August 2019, (returning on 6 October 2019).   

11. The sponsor departed Australia on 8 January 2020 and has not returned to Australia since.  He told the delegate that he had a neck operation in November 2019 and went to China for a rest and to recover with his family. The file reflects that he was later caught by the spread of border closures during the COVID19 pandemic and for some time was unable to return to Australia despite at that time having a desire to do so.  According to general information, including records of announcements from the Home Affairs website[1], Australians overseas were able to return to  Australia from around November 2021. The sponsor remains in China to the date of hearing.   

    [1] Reopening to tourists and other international travellers to secure our economic recovery (homeaffairs.gov.au)

12. 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 review applicant who is an Australian permanent resident.   

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 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?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The parties have provided evidence that they married in Anshan City, on 28 January 2019.  Both parties had been previously married and have provided evidence of their divorces.  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. In order to satisfy the criteria in cl 309.211 and 309.221, a decision maker must be satisfied that they were in a married relationship at the time of application and at the time of decision after having regard to several aspects of the relationship.  I turn now to considering those various aspects of the relationship.

    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.

16. The parties were together in Anshan during the hearing, and gave their evidence separately.  At hearing, the sponsor gave evidence that whilst it is true that they had spent time living apart in China from 2020, this was due to their particular family situations and the pandemic restrictions and not because they were not in a relationship.   He wanted to be with the visa applicant, but his father was old and very unwell. Later, his mother was unwell.  The sponsor’s father passed away in August 2021.  The primary visa applicant attended his funeral to support the sponsor.  His mother moved into aged care in October 2023. 

17. The visa applicant gave evidence that in addition to her husband’s role in caring for his parents, her own situation similarly required her to stay in Anshan where she had reliable income from her employment and where her daughter (the second applicant) was in school, and so that she could care for her mother, who died in May 2021 after a battle with cancer. The primary applicant is an only child. The sponsor attended her mother’s funeral to support her.  The parties gave evidence that over the years of the pandemic, there were also various movement restrictions and travel advisories that they had to have regard to, particularly having older parents, that made it difficult at times for them to be together as they would have liked.

18. The parties gave evidence that even though they were separated for these years, and faced difficulties of movement posed by the COVID pandemic, they still took many opportunities to be together, either in their respective home areas or in Shanghai.  In fact, despite not living in the same parts of China, both parties referred to more than 30 times they (and with the second applicant on several occasions) had travelled to each other and holidayed together between 2019 and 2023.  At the time of being interviewed by the delegate, the parties referred to the sponsor having visited Anshan six times, and the primary applicant visiting Shanghai on a few occasions also.  The primary applicant has work commitments, so it was easier for the sponsor to travel to her. They spent periods from a few days up to a week together on each occasion.  Evidence has been provided in the form of hotel bookings, adventure park tickets, plane tickets, boarding passes and photographs supporting this evidence. I accept that despite living apart due to their respective caring responsibilities and the pandemic limitations, the parties maintained contact and took many opportunities to be together after they married in 2019.  As noted earlier, they also visited each other to attend the funerals of their parents.   

19. At the time of application, (22 March 2019) the parties had  spent limited time in each other’s company.  The sponsor had only been in China for 22 days after their marriage.  The delegate’s decision was made on 2 February 2021 and they found that even in the period after their marriage when the sponsor was in China, they were living in separate parts of China, some 1700 kilometres apart, and that this indicated that they were not genuinely committed to a life together.

20. I acknowledge the concerns of the delegate.  However, I have considered the evidence given by the parties and the sponsor’s sister and am satisfied that despite their physical separation, (and as has been borne out by subsequent events) the decision to live separately from 2020 to 2023 was not a permanent arrangement but happened by necessity due to their caring and work (in the primary applicant’s case) responsibilities, and also as a consequence of the pandemic.  I do not consider that the decision not to reside together could fairly be regarded as a strong indicator of a lack of commitment to each other, or that the marriage was not a genuine and continuing, particularly given their family situations and the uncertainty and chaos occasioned by the spread of the COVID19 pandemic.   I accept that the parties took many opportunities to be together, albeit temporarily, in the period from 2019 to 2023 and that the sponsor moved to Anshan in October 2023 and that they have lived together since then. 

21. Both parties gave evidence that they consider the relationship to be ‘for life’ and that it will continue even in the event that the visa was refused.   They referred to the love and care they have for each other and the sponsor described his love also for the second applicant. The primary applicant gave evidence that the sponsor has a strong relationship with the second applicant. The parties each described long term plans to buy a home, work in Australia and to combine their resources, meet the second applicant’s education needs, and to be together.  The primary visa applicant noted that despite the sponsor having no ‘legal’ requirement under Chinese law to financially support the second applicant, he had willingly and gladly been doing so throughout their marriage and this made her happy. 

22. The parties have provided extensive chat and call history (including video stills from video calls) which supports their evidence that they have been in constant contact even whilst living apart.  I accept that even when apart, the parties have demonstrated an ongoing commitment to each other and the relationship, made every effort to be together, (albeit for short periods) on multiple occasions, and that they provided each other and the second applicant with emotional support during the difficulties they encountered in the period from their marriage in 2019 until they finally commenced living together in October 2023.  I also consider that their current living arrangements strongly suggest that they are committed to each other and to their marriage.

23. Consideration of the information and evidence about the nature of their commitment to each other suggests that the parties have been in a married relationship since the date of their marriage despite living separately for an extended period due to their family and other circumstances until October 2023. Consideration of this aspect of the relationship suggests that the parties were in a married relationship at the time of application and that they continue to be so at the time of making this decision.   

    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.

24. The primary applicant works as a saleswoman at a medical equipment supplier. She gave evidence that she earns between five and six thousand yuan per month.   The sponsor does not work and has not worked during the parties’ relationship.   He had neck surgery in November 2019.   He has been in China for most of the relationship, for the reasons discussed above. He expressed a desire and intention to find work when he returns to Australia. The primary applicant described how the sponsor has been financially supported by his parents over the past several years.  This was confirmed by the sponsor.  The primary applicant observed that when he moved to Anshan in October, the sponsor brought a lump sum with him and they have invested that jointly.  It is 130,000 yuan.  She has her own account and was aware that the sponsor also has his own bank account and noted that he contributes to the financial needs of the household as needed.  For example, he paid for some dental work for the second applicant,  buys her some jewellery, and met some mobile phone costs recently.  The sponsor gave similar evidence.   I accept this evidence.

25. Each of the primary applicant and sponsor own a property in China.  The primary applicant owns a property in Anshan which is not tenanted due to her preference that it be maintained in good ‘clean’ condition.  She and the secondary applicant 9and now the sponsor) live with her father in a property he owns.  There is no mortgage on her property. 

26. The sponsor owns a property in Shanghai which is also not tenanted. There is no mortgage over the property. The parties indicated that when they move to Australia, if the visa is granted, it is possible that they will sell one or both of the properties they own in China order to buy a home together in Australia.

27. The sponsor has added the primary applicant as a beneficiary to his life insurance as of 4 July 2022 and described her as his wife. 

28. Evidence has been provided of transfers over WeChat of significant sums of money from the visa applicant to the sponsor.  The primary visa applicant said that they transferred money to each other for gifts, or for special purposes as it was needed.  The sponsor confirmed this.    

29. Although I accept that the parties did send money to and from each other whilst they lived apart, and that they have shared travelling expenses when together in that period, the fact that they lived independently (financially) does not reflect a significant pooling of resources over the period from 2019 to October 2023. They also do not have any shared assets or liabilities.  However couples living apart and who have independent means of self support might have no need or practical capacity to pool their resources or liabilities, despite an intention to do so once they are together.  I noted from their evidence that the parties were extremely familiar with each other’s financial situation, assets and income.  When considering the time of application, the financial aspects of the relationship provides only a little weight suggesting the primary applicant and the sponsor were in a committed and ongoing relationship.  Nonetheless I consider that some allowance must be made for the fact that they had only been married a short time at the time of application and were living in different countries, making pooling of financial resources unnecessary and impractical at that time.  

30. At the time of making this decision, I am satisfied that the parties now live together and share all financial decisions and resources they each have as well as making plans for their financial future as a married couple.

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

31. For some of the period after their marriage until February 2020, the parties were separated by their respective residence in separate countries. When the sponsor returned to China during 2019, he visited the primary applicant but stayed mainly with his family.  From 2020 to October 2023, the parties lived with their families in different provinces of China but maintained frequent contact and shared time together whenever possible.  Taking into account the evidence of extensive travel within China provided, including air tickets, hotel bookings, photos and information about how they spent their time together undertaking joint social events, I am satisfied that the parties were in constant contact in that period, and spent meaningful and significant time together. I consider that this period should be considered similarly to a period where a couple are separated due to living in different countries.

32. From October 2023 to the current time, I accept that the parties have been living together and sharing a home, ordinary household chores and sharing the care for the second applicant.   I accept that the primary applicant and sponsor allocate cooking and household responsibilities in an unremarkable manner between them when they are together.     

    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.

1. The evidence about the parties’ presentation of each other as married within their social circles is limited due to their physical separation during a significant part of their marriage.  The sponsor’s sister confirmed at hearing that she and her sisters all know and care for the primary visa applicant as their sister-in-law.  They even visited her and stayed with her on a holiday during 2023.  Photographs of this visit have been provided. The sponsor’s sister confirmed that in her opinion, her brothers’ marriage to the primary applicant is a genuine and continuing relationship and has the support of everyone in the family, including their mother and father when he was alive.   

2. I accept that  since marriage the parties have presented themselves as a married couple to their respective families.  I accept that their friends know of their marriage despite limited opportunities as yet to spend time together with those friends.  The parties have provided many photographs of them together on social occasions, at events and at home with members of their respective families.  The second applicant is frequently included in those events and photographs and I consider they should be given significant weight as indicating an ongoing familial relationship.   I note that the primary applicant was described as the sponsor’s wife on the tombstone engraving for the sponsor’s father.  I give this significant weight as indicating public recognition of their relationship.

3. After hearing, the applicants also provided a copy of the visa applicant’s household register which clearly states that she has remarried, though her husband’s details are not asked for. A copy of the sponsor’s family household register also records him as ‘having a spouse’, though the primary applicant’s details are not asked for.  I accept that keeping the Chinese government informed of their marital status does reflect an official public acknowledgement of their spousal status.

4. Consideration of the social aspects of the relationship at the time of application and at the time of decision suggests that the primary applicant and sponsor consider themselves to be a married couple, that they are considered to be a married couple by family and friends (and by relevant authorities) and that they plan and undertake joint social activities together as a couple. 

   Conclusion on married relationship

5. Having considered each of the aspects of the relationship at the time of application and at the time of decision, I am satisfied that the primary visa applicant and sponsor are married to each other under a marriage that is valid, that they have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them is genuine and continuing, and that they do not live apart on a permanent basis.  I am 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.

6. The primary applicant is sponsored by her spouse, who is an Australian permanent resident.  Therefore the primary visa applicant meets cl 309.211 and 309.213.  There is no suggestion in this case that the sponsor is prohibited from being a sponsor.  Cl 309.212 is also satisfied. The primary applicant therefore satisfies the time of application criteria in subdivision 309.21.

7. I have concluded above that the primary applicant and sponsor are spouses at the time of making this decision.  Cl 309.221 is satisfied. 

8. With regard to the second applicant, I accept that, as the dependent child of the primary applicant, she is a member of the primary applicant’s family unit. She made a joint application with the primary applicant who I have found satisfies the primary criteria in Subdivision 309.21. 

9. The sponsorship in this case includes the second applicant.  The second applicant therefore satisfies cls 309.311 and cl 309.312.

10. Given my findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

11. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with directions that:

    The first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cls 309.211, 309.212 and 309.213 of Schedule 2 to the Regulations; and

    ·cl 309.221(1)(a) of Schedule 2 to the Regulations; and

    The second named visa applicant meets the following criteria for a Subclass 309 (Partner(Provisional)) visa:

    ·cls 309.311 and 309.312 of Schedule 2 to the Regulations.

    Anne Grant
    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).