Nguyen (Migration)
[2025] ARTA 1653
•5 August 2025
Nguyen (Migration) [2025] ARTA 1653 (5 August 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Tran Hiep Nguyen
Visa Applicant: Chunli Xie
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2214736
Tribunal:General Member A Ryding
Place:Sydney
Date: 5 August 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
- cl 309.211, cl 309.212, cl 309.213, and cl 309.221 of Schedule 2 to the Regulations.
Statement made on 05 August 2025 at 9:25am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – start and progress of relationship as older divorcees – validly married – languages, communications and review applicant’s travel to visit visa applicant – business activities and future plans – supporting statements – undetailed anonymous allegation given no weight – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221
CASE
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 23 August 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the Subclass 309 visa under consideration in the present application to the Tribunal on 17 October 2019 on the basis of her relationship with the sponsor, who is 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant, which in this matter is the visa applicant.
In a decision dated 23 August 2022, the delegate refused to grant the visa on the basis that the visa applicant did not meet the legal requirements in cl 309.211 and 309.221 in Schedule 2 to the Regulations on the date of the delegate’s decision. This meant that the delegate was not satisfied that the visa applicant was the “spouse” of the review applicant, and was not satisfied that they were in a marriage valid for the purposes of the Act, have a mutual commitment to a shared life to the exclusion of all others, are in a genuine and continuing relationship, and live together or not live separately and apart on a permanent basis.
The review applicant applied to the Administrative Appeals Tribunal (the AAT) for review of the Department's decision on 6 October 2022. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The review applicant appeared before the Tribunal on 23 June 2025 by MS Teams videoconference to give evidence and present arguments. The Tribunal also received oral evidence by videoconference from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review and the representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The review applicant is a 60 year old Australian citizen, born in Vietnam, who has declared one previous marriage. The marriage was from 9 July 1981 to 9 May 2008, and ended in divorce with four children of the marriage. The visa applicant is a 45 year old Chinese citizen, born in China, who has declared one prior marriage from 2 February 2009 to 31 July 2018 that ended in divorce, with one child of the marriage who is not the subject of this application.
The Department was provided with a marriage certificate and translation recording that the review applicant and the visa applicant (the parties) were married on 5 August 2019 in Hubei Province, China, and the marriage was registered on 8 August 2019. Accordingly, the Tribunal has assessed the relationship pursuant to whether the parties meet the definition of a spousal relationship as set out in s 5F(2) of the Act.
The issue in the present case is therefore whether the parties were, at the time of the application and are at the time of this decision, spouses in a genuine and continuing relationship.
Summary of the evidence
Evidence provided to the Department
10. The visa applicant provided to the Department documents relevantly including the marriage certificate, Form 888 statements in support from Ms Xidi Xie (the visa applicant’s older sister), Mr Glenn Forrester (Ms Xidi Xie’s now deceased husband), and Mr Sokky Taing (the review applicant’s former brother-in-law and friend), all sworn in September 2019; documents relating to transfers of money; documents evidencing travel by the review applicant to China on various dates; receipts for goods purchased in China (untranslated); undated photographs without descriptions; the review applicant’s tax return for the 2017-2018 financial year; screenshots of online conversations on WeChat between the parties on various dates’ personal statements from the parties; and a letter from the visa applicant dated 16 November 2021 with accompanying medical information in relation to the review applicant’s state of health.
11. Also included in the Department’s documents were documents referring to an allegation made by an anonymous third party. This is discussed further below.
Evidence provided to the Tribunal
12. On 31 March 2025, the Tribunal issued a request for updated evidence, submissions and information to the review applicant. In response to that request, the review applicant provided documents relevantly including:
Documents evidencing travel by the review applicant to China in October 2022, July 2023, September 2023, January 2024, May 2024, August 2024 and January 2025, as well as train tickets for internal travel within China for the parties in March 2023, and documents evidencing the review applicant’s COVID-19 quarantine in Wuhan, China, in October 2022.
Relationship statements by the parties, both prepared in April 2025.
Photographs taken on various dates between 2022 and 2025 .
Documents evidencing transfer of money from Australia to China on various dates between 2023 and 2024 including certified translations.
Document evidencing registration of a noodle shop business in Gedian, Hubei Province, China, on 16 November 2023 and certified translation.
The Chinese equivalent of a certificate of title on an apartment in Gedian, Hubei Province, China, dated 17 July 2023 and certified translation.
Documents identifying the visa applicant as beneficiary of the review applicant’s superannuation, and the visa applicant’s life insurance policy naming the review applicant as beneficiary.
WeChat records of conversations between the parties from 2023 to 2025.
WeChat payment transaction statement, and Chinese shopping invoices and certified translations.
Documents relating to Airbnb rental.
Updated form 888 statements from Australian residents Ms Ixidi Xie and Mr Taing, Ms Ding Yang (work colleague of the visa applicant in the Airbnb business), Mr Mark Madetto (friend of the review applicant), and Ms Yi Ting Liang (the visa applicant’s niece), all prepared in April 2025. Form 888 statements from Chinese residents Ms Li Xie (the visa applicant’s cousin), Ms Qingqing Lu (visa applicant’s friend), and Ms Qing Chen (visa applicant’s sister in law), all prepared in June 2025.
Tribunal hearing on 23 June 2025: the review applicant’s evidence
13. The review applicant gave evidence to the Tribunal as follows. He first arrived in Australia in around 1984 and over the years has worked in a number of roles, including in a factory, a supermarket and a restaurant. He has worked as a handyman and managed his properties on Airbnb. His family are all in America, save for his mother who passed away a few years ago during the COVID-19 pandemic. He is not in contact with them, and they have lived separate lives for a long time.
14. His first marriage ended because his former wife fell ill and after that she did not like him and wanted to dispute everything. He believes she had mental health problems but said that she never accepted that. They had four children together, age between 31 to 37. He is still in contact with them but not often.
15. The review applicant was introduced to the visa applicant by her sister eight years ago. Her sister came to the restaurant in which he worked all the time and they would sometimes talk. She started asking him about himself, knew he was single, and said that she had someone to introduce him to, her sister who was divorced as well. The parties started communicating on WeChat regularly, usually at night. In the beginning, the visa applicant could not speak English but they could message and she could translate his messages from English to Chinese. When asked whether he had learned to speak Mandarin, the review applicant said that it was too hard and now the visa applicant can speak English.
16. After two months of chatting on WeChat, the review applicant decided that he wanted to meet the visa applicant in person, as he had been lonely for a long time. He booked a flight to see her in September 2018 and spent over a week with her. He said it was very touching when he saw her, and it was love at first sight.
17. As regards the decision to get married, after the first time he met her he felt very happy and had not felt like that for a long time. She has the looks that he likes and is a traditional woman, with “no nail painting”. He considered that she was the right person for him. He undertook a second trip in December 2018 and they went to another Chinese city. He said he felt closer to her and whilst maybe the decision was made a bit quickly, he felt like he wanted to marry her. They began to plan for the wedding, to take place in China. The visa applicant arranged the wedding as he cannot speak Chinese. However the wedding was done in the Western way, with the visa applicant wearing a white dress.
18. The visa applicant has an older sister who lives in Adelaide, and a younger brother who is married with one son, who lives in China as do her parents, near the apartment that the parties have purchased together.
19. As regards the visa applicant's first marriage, she told him that she had a cosmetic business which failed and they had to sell everything. Her husband was maybe not happy about that and so they divorced. She has a daughter, aged 16, who lives with her paternal grandparents. The review applicant was unsure about why her daughter lived with her grandparents. He has seen the daughter many times. Every time he is in China he takes her to buy clothes. He did not believe that the visa applicant’s daughter wanted to move to Australia, commenting that the other side (that is, the father’s side of the family) want to keep her with them.
20. The review applicant always discusses with the visa applicant when his trips to China will be. After the COVID-19 pandemic, it had been nearly three years since he had travelled to China and, after she was rejected for a visa, he was very sad. As her husband, he wanted to talk to her and needed to fly to her. He therefore travelled and stayed for six months, and since then he has gone back and forth between Australia and China. He usually stays until his visa expires, which is 20 days. He pays for the flights. He owns two properties In Australia, keeps one room in one of them to live, and rents out the remainder of the properties. He also has savings that he can draw on.
21. As regards where he lives when he is in China, before they bought the property together and before the COVID-19 pandemic, when he visited he would live in her rented place but it was small. After the pandemic, they moved to another place nearby that was bigger. Then they bought a property together in Gedian which is around an hour and a half outside Wuhan. They moved there because it was cheaper to buy.
22. They stay in contact by having video chats every day. They put the video on and leave it on and can do things around the house, or watch movies together. They normally do this at night but they talk all the time. It is the same on the weekends. Before she could speak English, they would communicate only by messages but during the lockdown in 2020, there was more free time for her to learn English and he arranged for her to attend an English school.
23. As regards their financial affairs, he sends the visa applicant AUD$1,000 a month if he is not with her. If he is with her, he usually has the same amount with him in cash to give her. They decided to buy an apartment in order to cut down on rent, as rent in Wuhan was not cheap. They wanted a cheaper property so they had to look outside Wuhan which is why they went to Gedian. The apartment is in their joint names. It is 52 square metres with two bedrooms, a small kitchen and a small balcony. They do not have pets as neither of them like pets. Now that they own their own property, which they own outright, they do not need to pay rent but they still need to pay phone, gas, water bill and their living expenses. However, living in China is cheaper than living in Australia.
24. Last year he created an opportunity for them to work together by renting a noodle shop from the Chinese government. It has been rented for a year and the rent was paid in advance. The shop is in the visa applicant’s name but the money for the rent all came from him. The rent was around the equivalent of AUD$1,200 a year. He does the cooking and she cuts and prepares the vegetables and takes orders from customers. The shop is open when he is there but, when he is not in China, it is not open as it needs two people. The visa applicant used to work part time in fast food service but has never, whilst he has known her, worked full time. She doesn't work other than working in their noodle restaurant because their home is in the countryside, and she lives on the money that he gives her.
25. He was unsure whether the visa applicant had the equivalent of superannuation in his name and said that they had not made a will yet because they're too young and will do this another time.
26. The visa applicant used to assist him in running his Airbnb business by dealing with customers online but he said they stopped doing that when they started operating the noodle shop. Her sister living in Australia used to help out but cannot help anymore as she does not have the energy to assist so now the properties are subject to long term rent.
27. As regards their routine when they are together in China, before they open the shop they don't do much, he usually cooks their meals but sometimes she will cook breakfast. The visa applicant does all the cleaning and clothes washing, and he will manage repairs and cooking. They go grocery shopping together but, if they can, they order online for convenience and buy food for both home and the noodle business. He leaves a lot of clothes in China and most of his clothes are in China now. At around 3 pm they go to the noodle shop. They finish at 10:30 pm and are open seven days. There are over 100 shops and they have made friends amongst other shop owners. They enjoy working. People will talk to his wife but he stays quiet, given the people are speaking Chinese. She has a lot of friends back in Wuhan but not many where they live now and sometimes they will go back to visit her friends. The Tribunal raised with him the reference to them undertaking volunteer work together and he said that, when they moved to their new home in Gedian, his wife took him to help with cleaning up litter on the grounds.
28. The Tribunal asked the review applicant about the passing of his brother-in-law, Mr Forrester. He said that he had cancer for a long time so they were predicting that he would pass away. When he died, the review applicant was in China and they sent sympathy to the family. His closest friend is his former brother-in-law, Mr Sokky Taing. When asked who his wife’s closest friend was, he said that she has a lot of friends but he doesn't know which one is best. He said that she was close to her parents.
29. For Chinese New Year, for three years in a row he has attended a big reunion at his parents in-law’s place.
30. As regards future plans, they want to open a small restaurant, just the two of them, serving Chongqing noodles as he believes these are going to be popular soon. They may go back to managing his Airbnb properties. It doesn't matter where they live. They might want to spend time in China so that he can learn the Chongqing noodles and they could run the business. Back in Australia, they would live in one room and rent the rest of the property out on Airbnb. If they were not living in China anymore they would sell the property in Gedian. They would also sell the shop if there was someone who wanted to buy it.
31. When asked what they argue about, he said that sometimes she talks too much and they have different personalities. Sometimes she wants to do things her way and sometimes he wants to do things his way, so, just normal life. When he is angry he does not talk. The hardest time for them was during the COVID-19 pandemic when they were apart nearly three years. He stopped sending her money for a while because he was finding it tough financially during lockdown. They spent a lot of time, during the pandemic, on her English studies and kept training her day by day. They kept saying to each other to wait until he could visit. He said it was also difficult when her visa application was rejected. For nearly three years he could not go anywhere, he could not help her and she got rejected because of that.
32. The Tribunal asked him about the refusal of the visa applicant’s applications for a tourist visa. He said that her sister asked her to visit Australia, before he knew her, and the third application is the only one he knows about. He said that he understood that the Australian government was worried that, because he was she was not working, if she came to Australia she would not return to China.
33. The Tribunal raised with the review applicant the fact that the Department's documents contain emails referring to a third party raising an allegation suggesting that the marriage was not a genuine one. The Tribunal noted that it had no detail of the allegation nor of the identity of the person making the allegation. The review applicant was invited to comment. He said it might be someone that he knows but he doesn't really care because he does everything right and his love is true, his marriage is real and not fake. He thought it was maybe someone close to him because they know a lot of his details but he did not know who it was.
The visa applicant’s evidence to the Tribunal
34. The visa applicant told the Tribunal that her parents and younger brother live in China, her brother in Wuhan and her parents around half an hour's drive away. She has a sister, Xie, who lives in Australia.
35. When asked about her previous marriage, the visa applicant said that at the time she was undertaking business together with her husband. They were not from the same province in China and after marriage he came with her to Hubei Province. He wanted to become rich and she supported him a lot financially. He invested in three stores and lost around ¥1,000,000. She did not have the money to support him so he wanted to get a divorce. He said it was because they had different values but it was really because she did not have money. Her daughter, now 16, lives in Wuhan and is looked after by her paternal grandparents. The visa applicant took care of her daughter for three years when she was running a cosmetic shop and it was very difficult to work and take care of her. Her daughter’s grandparents are retired.
36. The visa applicant was introduced to the review applicant by her sister in Australia. Her sister told her that she had met a good man in Adelaide, who was divorced, and liked Asian women. She had told him about the visa applicant’s age and family situation and he was happy to meet her and to see if they could have some plans together. They began by chatting on WeChat and they chatted every day. They told each other about their respective situations. As she did not know how to speak English, they used the translation function in WeChat. They spoke on WeChat for almost two months and were really happy, already like old friends, and wanted to get to know each other better. The review applicant decided to come to China to meet her in person. She went to the airport to pick him up and prepared her English sentences to speak but wasn't able to speak them when they met. She recalled thinking that his skin was really good and he was handsome. The first day, she took him to have hot pot and after that they bought beer and went to the hotel and sat by the window.
37. After they had met in person on two visits, they each thought that they were suitable for the other and they liked each other so they decided to live together. After returning from a trip together within China, he proposed to her. They got married in the Wuhan Jin Jiang International Hotel on 25 April 2019. She invited family members and good friends, including her daughter and cousins. She wore a white dress for the ceremony and changed into a red dress for toasts.
38. Because her daughter does not live with her, when the review applicant visits China, she takes him to Wuhan to meet her daughter and they have meals together. Her daughter and the review applicant also video chat together. Her daughter's English listening skills are not good so it is good for her to practise. The Tribunal asked the visa applicant about a photograph from 2022 of the review applicant standing next to her daughter and holding a handwritten card, which she said was a birthday card from her daughter (the Tribunal notes that the card refers to him as “dad”).
39. His family are in the United States, although his parents have both passed away, his mother in 2021 and his father earlier than that. He has three younger brothers and one elder sister as his mother adopted a daughter. He has four children, two daughters and two sons, and the visa applicant knew their names and whether they were married or single. She said he is not very close to his family. One of the reasons he wanted to get married again is because he's quite lonely.
40. As regards the review applicant’s first marriage, the visa applicant said that he told her in the past that he had invested a lot of money with his ex-wife. Their company failed which she couldn't accept and suffered mental illness issues, and then asked for a divorce to which the review applicant agreed.
41. When asked how they stay in touch when they are not together, the visa applicant said they use WeChat and have video chats daily. They both live on their own so they spend a few hours every day video chatting with each other, talking about everything including their day, their families, her daughter and her studies, and their future plans including when he can visit her again.
42. As regards their financial arrangements, every month the review applicant transfers AUD$1,000 to her and when he returns to China he brings cash so that she can put it in the bank. She uses it to buy big items. The review applicant hopes that her English can improve and that's why she does not go to work and has been financially reliant on him since they were married.
43. The time of their marriage, she was renting an apartment in Wuhan but it was expensive, around ¥2,000 a month and after the visa application was rejected she realised she would be in China for a while. They did research about real estate nearby and thought the price and environment were good in Gedian and it was financially sustainable for them to buy property there. She said that she did a lot of research and sent him the price and layout of each property and finally they both thought the one that she now lives in was quite good. When he came to China, they visited the property together and together made the decision to buy. They both paid for the property. She had her own savings that she was able to use.
44. Neither of them have a will.
45. As regards the noodle shop, the common practice is to pay rent a year ahead. She paid for it using money in her bank account including money that the review applicant had deposited. The rent was around ¥4,500 for a year. As regards big purchases for the home, they usually buy the items online so that they can make a choice together. He particularly likes two brands, Haier and Hisense, so she looks at those two brands online and then sends links to him and together they make the decision to buy.
46. As regards the household, when they are together in China, they get up together and she makes breakfast, or sometimes he will make breakfast. They go grocery shopping for fresh vegetables and meat. She does the cleaning and prepares lunch. Because their business is in the night market, they usually work from 3 pm to 9:30 pm but then they need to clean the shop which takes around an hour so they get home at around 10:30 or later. To relax in their free time they visit restaurants in Wuhan or go on pleasure trips or have meals at home. When the review applicant is not in China, the noodle shop is not open because the business requires two people. When it's open he makes the meals while she greets guests, takes the cash and cleans up.
47. As regards their social network and family, the visa applicant said that her family thinks he is really good and that he has been taking care of her for many years. They like and respect him. When asked about the language barrier, she said that she has known the review applicant for many years, her English has improved and they have no problem communicating. It does mean that she is the interpreter between the review applicant and her family and they keep their conversation simple so they can understand each other. When he is in China he is with her every day so that she can help him communicate with family and friends although he has learned some Chinese. Her good friends are Qingqing and Qing Chen and she arranges their catch ups with them.
48. When asked what they argue about, she said that, after he takes a shower and she asks him to go to sleep, he often doesn't want to go to sleep. Sometimes she criticises him when he's working on the noodles and says they're not soft enough and he will say he's working hard every day and that she shouldn't have said that to him and that makes him angry. They generally have similar views on many things, they both enjoy a simple life and have similar habits and enjoy food of similar tastes, such as beef and fish and chicken.
49. The Tribunal asked what their long term plans would be if granted a visa, and she said that they ran an Airbnb business for around two years but because later on her sister was busy, they changed to long term renting. They may continue to operate an Airbnb business and open a small restaurant with both Vietnamese and Chinese noodles. They plan to stay in China for about a year so that the review applicant can improve his skills in making the local noodles and then move to Australia.
50. When asked about a time in their relationship that was difficult and how they got through it, she said that after they got married they couldn't be together for about three years because of the COVID-19 pandemic. They had video chats every day and he taught her English pronunciation and grammar. They would have the videos on for a few hours every day so they said they were able to contact each other at any time to see each other on the video chat and discuss problems and provide emotional support.
51. When asked about the rejection of her tourist visa applications she said that she was told that she had insufficient domestic economic constraints (that is, within China).
52. The Tribunal explained that an anonymous allegation had been raised to the effect that it was not a genuine marriage and asked her if she knew anything about it. She said that she did not think her friends in China would do this and said she had asked her husband and he didn't know who might have made the allegation. She said that maybe the person was jealous and didn't want them to have a good life, or a better life than them.
53. When asked whether there was anything else she wanted to raise with the Tribunal, the visa applicant said that their relationship has lasted for seven years already, the review applicant has visited China 12 times and the air tickets alone have costed him a lot of money. To reach where she lives takes 10 hours on route, transferring twice. They have overcome a lot of difficulties in those seven years, including the language barrier, the distance and the three year separation because of the COVID-19 pandemic. Every time there are new issues they have faced the difficulties together and overcome all of them.
Whether the parties are in a spousal relationship
54. 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. The Tribunal is satisfied, based on the information provided by the review applicant and the information recorded in the Departments records, that the review applicant is an Australian citizen.
55. 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.
56. “Spouse” is defined in s 5F(2) 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 the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship and the nature of the parties’ 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?
57. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
58. The visa applicant provided the Department with a copy of a registered marriage certificate recording that she and the review applicant were married on 5 August 2019 in Hubei Province, China, and the marriage was registered on 8 August 2019.
59. Based on the registered marriage certificate, the Tribunal is satisfied that the review applicant and visa applicant are 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?
Financial aspects of the relationship:
60. Both parties gave evidence of the financial support provided by the review applicant to the visa applicant and this is supported by documents provided to the Tribunal. The Tribunal accepts that this is the primary source of money used by the visa applicant to live on and by the parties when the review applicant is in China. Therefore to that extent there is a pooling of financial resources and (at least when the review applicant is in China) shared day-to-day household expenses.
61. The property in which the visa applicant now resides, and where the review applicant lives when he visits her, is held in their joint names. The business license on their noodle shop is in the visa applicant’s name alone but the Tribunal accepts that the parties understand that they own and operate the business jointly. The Tribunal is satisfied that the parties have joint ownership of real estate, and notwithstanding the legal documentation in respect of the noodle shop, they share jointly any liabilities for the noodle shop. There is no evidence before the Tribunal that either party owes the other any legal obligation.
62. The financial aspects of the relationship, therefore, provide some support to the parties being in a genuine and continuing relationship at the time of application and stronger support at the time of decision.
The nature of the household:
63. The parties gave broadly consistent evidence about the nature of their day when they are together, which is to a large extent focussed on running the noodle business. When in the same country the parties live together and share responsibility for household chores. They share decisions about the purchase of larger household items. They do not share any joint responsibility for the care and support of children, although the Tribunal acknowledges the evidence regarding the relationship between the review applicant and the visa applicant’s daughter.
64. As regards when they are apart, the parties gave consistent evidence about spending significant amounts of time in video chats with each other during the course of a day, and sharing their daily lives together in that way. The documents contain screenshots recording videocalls lasting, for example, 292.39 minutes, 238.55 minutes and 141.31 minutes, supporting their oral evidence.
65. Taken together and noting in particular the evidence of daily contact between the parties and the involvement of the review applicant in significant decisions to do with the household, the Tribunal considers that the evidence as regards the nature of the household provides some support that the parties were in a genuine and continuing relationship as at the date of application and strong support as at the date of decision. That is so notwithstanding the fact that the parties have only physically shared a household for limited periods of time.
The social aspects of the relationship:
66. The parties’ social interactions with others when the review applicant is in China appear to be limited by the language barrier. However, the Tribunal notes the visa applicant’s evidence regarding her family's affection for the review applicant and his relationship with her daughter. The Tribunal accepts that they socialise together with family and friends, notwithstanding the language barrier, with the visa applicant acting as interpreter. The Tribunal notes the oral evidence regarding attending family Chinese New Year celebrations. The photographs provided to the Tribunal appear to cover a range of dates and show the parties with friends and family.
67. The April 2025 Form 888 statements from Ms Ixidi Xie (the visa applicant’s sister living in Australia), and Mr Taing, and from Ms Ding Yang (friend of Mr Forrester, work colleague in the Airbnb business), Mr Mark Madetto (friend of the review applicant), and Ms Yi Ting Liang (the visa applicant’s niece) are detailed and all provide support to the parties’ relationship being seen as a genuine and committed one by their friends and family. The Tribunal notes in particular: her sister, Ms Xie, Mr Masetto and Ms Yang each witnessed their long videochats including during chores, walks and card games; and Ms Xie referred to the support the review applicant provided when her husband, Mr Forrester, was dying, and the gifts of clothing to the visa applicant’s father when he visited Australia in 2020.
68. The June 2025 Form 888 statements from Chinese residents Ms Li Xie (the visa applicant’s cousin), Ms Qingqing Lu (the visa applicant’s friend), and Ms Qing Chen (the visa applicant’s sister in law) refer to visiting the parties’ home in Gedian, meals with them and seeing them interact as a couple on multiple occasions.
69. The Tribunal considers that, taken together, the evidence provides strong support to parties representing themselves to other people as being married to each other and being seen by their family and friends to be in a relationship that is a genuine and continuing one. The Tribunal considers that this is the position both at the time of application and the time of decision.
Nature of the persons’ commitment to each other:
70. As at the date of this decision, the parties had been married for around six years. Whilst the parties have only lived together for a limited period of time, during the review applicant’s visits to China, the Tribunal notes the high number and frequency of his visits, broken only by the COVID-19 pandemic. The Tribunal notes that the review applicant returned to China very soon after China reopened its borders and that he undertook quarantine in order to do so.
71. The Tribunal notes the consistent evidence from each of them about their daily lengthy video chats, which is supported by the call records in the documents provided to the Tribunal. The Tribunal notes their plans to continue to operate the noodle business that they have established together in China for a while and then to do the same in Australia, as well as potentially to restart the Airbnb business.
72. The parties have undertaken significant efforts to remain close to one another even though they have spent the majority of their married life living in separate countries. The Tribunal accepts that it is always been their intention to live together and that they do not intend to live separately and apart on a permanent basis. The Tribunal notes the obstacles they have overcome, including geographic distance, the difficulties during the COVID-19 pandemic, the language barrier as well as the rejection of the visa applicant’s visa application.
73. The Tribunal is satisfied that the evidence regarding the nature of the parties’ commitment to each other gives support (and strong support) to their relationship being a genuine and continuing one, both at the time of application and at the time of this decision. The Tribunal places no weight on the anonymous allegation noting in particular that it contained no details and was made in 2019.
Conclusion
74. The Tribunal has considered all the circumstances of the relationship as required pursuant to reg 1.15A(3), and is satisfied that at both the time of application and at the time of decision, the review applicant and the visa applicant were in a spousal relationship within the meaning of s 5F. That is, the Tribunal is satisfied that they are validly married, 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 they do not live separately and apart on a permanent basis.
75. For these reasons, the Tribunal is satisfied that the requirements of s 5F are met and finds that the review applicant and visa applicant were in a spousal relationship at the time the visa application was made and at the time of decision. The Tribunal is therefore satisfied that the visa applicant meets the requirements of cl 309.211(2)
76. There is nothing in the evidence before the Tribunal to suggest that the review applicant is prohibited from being a sponsor and the Tribunal is satisfied that cl 309.212(2) does not apply. The Tribunal is therefore satisfied that the visa applicant meets the requirements of cl 309.212.
77. The visa applicant is sponsored by an Australian citizen whose date of birth is 10 December 1964 and who was therefore aged over 18 at the time of application. The Tribunal is therefore satisfied that visa applicant meets the criteria in cl 309.213.
78. Noting the Tribunal’s findings above, the Tribunal is satisfied that the visa applicant continues to meet the requirements of cl 309.211 at the time of this decision. Therefore, the Tribunal finds that the visa applicant meets cl 309.221 of Schedule 2 to the Regulations.
79. Given the above findings, the appropriate course is to set aside the decision under review and remit the application for a visa by the visa applicant to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
- cl 309.211, cl 309.212, cl 309.213, and cl 309.221 of Schedule 2 to the Regulations.
Date) of hearing: 23 June 2025
Representative for the Applicant: Mr Xiaotian Liu
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