Peng (Migration)

Peng (Migration) [2019] AATA 3897 (28 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Bai Ling Peng
VISA APPLICANTS:  Mr Wenhui Mei
Miss Jinghong Mei
CASE NUMBER:  1803435
DIBP REFERENCE(S):  BCC2017/1011098
MEMBER:Christine Kannis
DATE:28 June 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 28 June 2019 at 6:19am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – genuine spousal relationship – marriage certificate – lack of evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2 cls 309.211, 309.221

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 December 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) applied for the visa on 14 March 2017 on the basis of his relationship with his 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, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.309.211(2) because the delegate was not satisfied that his relationship with the review applicant met the definition of spouse under the Act.
A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review.
The review applicant appeared before the Tribunal on 27 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Man Kit Chan and Ms Jindeng Chen. The Tribunal received oral evidence by telephone from the visa applicant and his son Mr Liren Wei. The Tribunal was assisted by an interpreter in the English and Cantonese languages.
At the commencement of the hearing the Tribunal informed the review applicant that information in folio 142 of the Departmental file was the subject of a s.376 certificate and advised her that such a certificate means the Minister has certified the disclosure of the information would be contrary to the public interest or that the information was provided in confidence. In this case the certificate stated that disclosure would be contrary to the public interest because folio 142 contained confidential Departmental records involving information sharing practice and procedures which would be disadvantageous to the integrity of the migration program should they be released. The Tribunal informed the applicant of its determination that the certificate was valid and told her it would not be releasing the information. The Tribunal informed her that it would not be relying on the information because it was not relevant to the issue for determination before it.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the relationship between the visa applicant and the review applicant meets the definition of ‘spouse’ in section 5F of the Act.
Section 5F 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 husband and wife 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the parties’ relationship, the nature of their household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.
Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant, a citizen of China, claims to be the spouse of the review applicant who is an Australian citizen.
The visa applicant was previously married and that marriage ended in divorce on 27 July 2016. The secondary applicant is a child of the visa applicant’s previous marriage. The review applicant was also previously married and that marriage ended in divorce on 9 December 2012. The review applicant has two children from her previous marriage.
The visa applicant and the review applicant claim to have first known each other in 1997 in China. They were friends for several years and started dating in 2015. The visa applicant proposed marriage and they were married in China on 17 November 2016.
On 5 May 2017, the visa applicant was interviewed by an officer of the Immigration Section of the Australian Consulate-General Guangzhou (the interview). The interview was conducted in Cantonese to ensure there was no misunderstanding of the questions and responses. The delegate took into account the interview notes in making the decision to refuse the visa.
A written statement dated 11 September 2018 was provided (the written statement). Although the statement was signed by both the review applicant and the visa applicant it appears to have been written by the review applicant only.
Following the hearing the review applicant’s representative provided a written submission (the written submission) and additional documents.
Whether the parties are in a spouse or de facto relationship
Are the parties validly married?
If the parties are validly married they may meet the requirements of a spousal relationship, but not a de facto relationship. A Marriage Certificate (translated and certified) issued by The People’s Republic of China was provided. The Marriage Certificate indicated the Date of Registration was 17 November 2016. The review applicant told the Tribunal that the date of marriage was 23 October 2016. The Tribunal requested the applicant’s representative to provide proof of the date of the marriage following the hearing. On 30 May 2019 the applicant’s representative advised:
During the hearing, Ms Bai Ling PENG stated that she and her husband Mr Wenhui MEI registered their marriage in China in October 2016. What she said was different from the date shown on her marriage certificate which is November 2016. This is because in Chinese culture, people often remember important dates on the Lunar calendar instead of the Gregorian calendar. According to the Lunar calendar, November 2016 was the 10th moon of 2016. Hence, Ms Bai Ling PENG insisted they were married in October (to her, meaning the 10th moon on the Lunar calendar) instead of November.
On the basis of the written evidence before it, and in the absence of any evidence to the contrary, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F(2)(a).
Financial aspects
The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including the extent of pooling of financial resources and any sharing of day-to-day household expenses.
The delegate noted that there was no evidence to demonstrate that the parties had any joint ownership of real estate or other major assets, joint liabilities, joint bank accounts or that they have pooled financial resources.
Following the delegate’s decision the parties opened a Westpac joint account and documentary evidence of this was provided. The opening balance was $75 and at as at 22 October 2018 the balance was $75. This account does not demonstrate any pooling of financial resources and the transactions which appear on the statements are monthly service fee transactions.
In the written statement the review applicant said they had no immediate plans to purchase property in joint names because of rules restricting property ownership by a foreigner. She said they did not send money to each other because they were financially independent and self-sufficient. She is in receipt of disability support pension and the visa applicant believed she was able to support herself. His income as a renovation contractor is limited and he supports his daughter who is attending university. In contrast to this however Westpac statements in the review applicant’s name showing deposits of $985 made on 9 February 2018, 28 June 2018 and 24 December 2018 and a deposit of $5,685 on 4 April 2019 were provided. The deposits were identified as “RTGS High Value Payment Mei Wenhui Living Expense”.
The review applicant told the Tribunal that the visa applicant sent her $1,000 (less $15) on three occasions, the most recent of which was in December 2018. The statements provided show three such transactions. She said the visa applicant gave her cash when he visited Australia in May 2017 and when she visited China in 2018. Following the hearing the review applicant’s representative advised that the deposit of $5,685 was made in anticipation of the visa applicant being granted a visa to live in Australia.
The Tribunal accepts that the parties reside in different countries and it is likely that they have not established any joint financial arrangements.
Nature of the household
No evidence was provided in relation to the nature of the household.
The Tribunal accepts that the parties reside in different countries and that they have not shared a household together other than for short periods when the review applicant visited China and when the visa applicant visited Australia.
Social aspects of the relationship
The Tribunal considered the evidence in relation to 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.
In the Sponsorship for a partner to migrate to Australia form and in a Relationship statement dated 3 April 2017, the review applicant said all their friends and families knew about the relationship. Noting that the delegate said the review applicant’s adoptive mother, her two sons and her goddaughter were not told about the relationship the Tribunal put this information to her. She said her adoptive mother passed away in February 2016 and she did not tell her about the relationship because her adoptive mother was a conservative person who believed in one marriage for life and did not accept divorce. The Tribunal asked the review applicant whether her adoptive mother was aware that her previous marriage ended in divorce in 2012. She said her adoptive mother knew she was divorced but described this as “somewhere between knowing and not knowing”.
The review applicant said she has not told her two sons, currently aged 19 and 13, about her marriage to the visa applicant. She told the Tribunal she did not tell her sons about her wedding because the younger one was too young (then aged 10) and the older one has problems which the Tribunal understands are attention deficit disorder related. She has still not told her sons about the marriage because if the visa applicant is refused a visa then there will be no reason to introduce him to them.
The review applicant said she told her goddaughter about the relationship in June 2016. She told her that the visa applicant was her boyfriend and that they planned to marry but had not set a date. She told the Tribunal she invited her goddaughter to the wedding but she was sick and depressed and did not attend.
In relation to her goddaughter the Tribunal noted that in the written statement the review said:
I did not want to tell her about it when I first started dating with Wenhui Mei because I was not sure whether Wenhui Mei was the one. I did not contact my goddaughter when I was engaged in July 2016 because she was heavily pregnant and I did not want to disturb her. I did not invite her to my wedding in October 2016 because I knew that she just gave birth to her child in September and she was still recovering from a caesarean section. Moreover, she was suffering from postpartum depression and I wanted her to rest well, Therefore, knowing her health condition and the fact that she had to look after a newborn child, I decided not to tell her about my relationship and wedding.
The Tribunal pointed out the inconsistencies in her oral evidence and in the evidence in the written statement in relation to whether she told her goddaughter about the relationship and whether she invited her to the wedding. She could not explain the reason for the inconsistencies.
The Tribunal noted that during the interview the visa applicant said the review applicant’s goddaughter was not aware of the relationship at that time (5 May 2017). The Tribunal put this information to the review applicant pursuant to s.359AA of the Act. She could not explain the reason the visa applicant said her goddaughter was not aware of the relationship.
The visa applicant told the Tribunal that the review applicant’s goddaughter was told of the relationship after they were married.
A statement purported to have been made by the review applicant’s goddaughter in September 2018 was provided prior to the hearing. In the statement she said the reason for writing the statement was to explain why she was not aware of the review applicant’s relationship until recently. She said when they became engaged on 1 July 2016 she was heavily pregnant and did not make much contact with her friends and family. She said this was the reason she did not know about the upcoming marriage. She said the review applicant had recently told her about the relationship and said the review applicant told her she did not invite her to the wedding because she knew she was recovering from a caesarean section. This written statement did not name the writer, was not a certified English translated copy of a statement written in Cantonese and was not in the form of a Statutory Declaration. The written statement was inconsistent with the review applicant’s oral evidence to the Tribunal.
The Tribunal informed the applicant’s representative that a Statutory Declaration and/or a certified English translation of a statement made by the review applicant’s goddaughter could be provided following the hearing. On 30 May 2019 the applicant’s representative advised :
This witness has been suffering from depression and other illnesses since she gave birth to her child. She does not want to be disturbed. Hence Ms Peng has not approached her to get a statutory declaration or statement to clarify the evidence she gave in her statement.
The Tribunal noted that no medical evidence was provided to verify the depression and other illnesses referred to and further noted that the birth of the child was three years ago.
The Tribunal asked the review applicant whether she told her aunt in Australia about the relationship and if so, whether she was invited to the wedding. She said she tried to phone her aunt to invite her to the wedding but she didn’t answer the phone. The review applicant said she told her aunt about the marriage in May 2017 when the visa applicant visited Australia. The Tribunal asked her the reason she did not share her happy news earlier. She said she was not in the right mood because her mother had passed away in 2016.
The review applicant told the Tribunal that none of her family attended the wedding and only one friend, Ms Jindeng Chen attended. She said about 20 people attended and they were the visa applicant’s family and friends.
The visa applicant’s son and daughter did not attend the wedding. The visa applicant said the reasons were that his son was working in another city and was not happy with the marriage and his daughter was studying in another city. His daughter met the review applicant when she visited China before the wedding and they all had lunch together. A photo of this occasion was provided. The visa applicant’s daughter provided a written statement (translated, certified and notarised) which was consistent with this evidence.
The visa applicant’s son, Mr Liren Wei, told the Tribunal he previously told the Department he did not know about the relationship because he did not want his father to marry the review applicant because she is ill. He told the Tribunal he was aware of the relationship. He provided a written statement (translated, certified and notarised) consistent with his oral evidence however given his admission of previously providing untruthful information to the Department, the Tribunal gave his evidence minimal weight.
A statutory declaration made on 9 February 2017 by Mr Man Kit Chan, was provided. Mr Chan stated that he met the visa applicant 10 years ago and met the review applicant three years ago. He said he visits the review applicant every weekend.
Mr Chan told the Tribunal the visa applicant is his mother’s friend. He said he met the visa applicant about 12 years ago and he sometimes sees him when he visits China. He has spent time with the review applicant and the visa applicant as a couple when the visa applicant visited Australia in May 2017. He said they met up a few occasions however following the hearing the applicant’s representative provided a written statement from Mr Chan in which he said spent time with the parties on two occasions when the visa applicant visited Australia in 2017. Mr Chan said he believed the relationship was genuine because he had seen the wedding photos and because the parties talk about each other to him. Given the brief period Mr Chan has spent with the parties as a couple and his reasons for his belief that the relationship is genuine, the Tribunal gives his evidence minimal weight.
A statutory declaration made by a friend of the parties, Ms Yuexing Lin, on 20 January 2017 was provided. Ms Lin declared that she believes the parties’ relationship is genuine and continuing. A later statutory declaration made by Ms Lin on 3 October 2018 was provided in which she declared she had known both parties for 20 years. She said she had spent time with the parties when both she and the review applicant were in China and the most recent occasion was at New Year in 2011. The Tribunal noted this was five years before the parties commenced dating. Ms Lin’s reasons for her belief that the relationship is genuine were general in nature and given that she has not spent time with the parties as a couple after the nature of their relationship changed from friendship, the Tribunal gives this evidence minimal weight.
The Tribunal had regard to a written statement dated 6 September 2018 made by Ms Jasmine Jindeng Chen. She said the review applicant is her best friend and she had spent a lot of time with her since her second cancer diagnosis. She said the visa applicant was a high school mate and said they have met regularly at old school gatherings. She said they also contact each other quite often in a WeChat group. She said the visa applicant has been worrying about the review applicant’s health and said he had tried to ask her about it but she did not want to talk about it. She said the review applicant cried easily and the visa applicant did not want to make her cry and so he asked her about the review applicant’s health. Ms Chen’s oral evidence to the Tribunal was consistent with the information contained in her written statement. She also told the Tribunal she attended the parties’ wedding and has spent time with them as a couple in October 2016 in China and in May 2017 in Australia.

The Tribunal had significant concerns about the lack of satisfactory evidence of social recognition of the parties’ spousal relationship. The review applicant did not tell her adoptive mother and has still not told her two sons about the relationship. She did not tell her aunt in Australia until May 2017, several months after she married the visa applicant. The evidence regarding whether she told her goddaughter about the relationship and whether she invited her goddaughter to the wedding was unsatisfactory. The Tribunal did not accept her oral evidence and preferred the evidence in her written statement and the information provided by the visa applicant during the interview. In summary the Tribunal found the review applicant did not tell any family members about the relationship prior to the marriage and did not invite any family members to the wedding.
Regarding her friends, the review applicant offered the evidence of Ms Lin, Mr Chan and Ms Chen. Ms Lin has not spent any time with the parties as a couple. Mr Chan has spent very limited time with the parties as a couple. Neither Ms Lin nor Mr Chan attended the wedding. The only satisfactory evidence of social recognition provided by the review applicant was the evidence of Ms Chen.
Written statements made by the visa applicant’s children were provided. His son told the Tribunal he was previously untruthful when asked about the relationship by the Department, the Tribunal because he didn’t want his father to marry the review applicant because she was sick. The Tribunal placed minimal weight on this evidence.
The information provided by visa applicant’s daughter’s in her written statement was simply that she was aware of the relationship when the parties became engaged and they she had lunch with them before they were married. She did not attend the wedding because she was busy with her studies.
Having considered all circumstances, the Tribunal was not satisfied that there is sufficient and convincing evidence to demonstrate that parties present themselves as spouses to their families and to the wider community.
The nature of the parties’ commitment
The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.
The interview notes say the visa applicant said he did not know about the review applicant’s illness when he proposed in July 2016. The Tribunal put this to the review applicant pursuant to s.359AA of the Act. She did not know why the visa applicant said he didn’t know about her illness and repeated that he knew of the illness but said he didn’t the details or seriousness of the illness. The visa applicant gave similar evidence in this regard. The Tribunal asked her the reason she did not share the details of her sickness with him. She said she started crying when he tried to discuss it with her.
The review applicant told the Tribunal that she and the visa applicant are in contact every day by WeChat and by calls. She said her health is stable but she requires chemotherapy every three weeks.
The visa applicant told the Tribunal that they communicate every day by WeChat or calls.
When asked what it would mean if the visa is refused the review applicant said she needs the visa applicant to look after her. She said because she has chemotherapy every three weeks she can only travel to China for brief periods of 10 to 14 days. The Tribunal asked the review applicant whether she would relocate to China if the visa is refused. She said she would not relocate because she would not have access to the medical treatment she needs in China.
In contrast to the review applicant’s evidence at hearing the written submission said:
If Mr Wenhui MEI cannot be granted an Australian visa for him to live with Ms Bai Ling PENG in Australia, Ms Peng will have no choice but move to China to live with her husband. There will be a great impact on Ms Bai Ling PENG’s health and financial situation. The medical standard in China is not as advanced as in Australia and hospitals in China may not be able to offer the medical treatments that Ms Peng has been receiving in Australia. This may worsen her health condition. Apart from that, as Ms Peng migrated to Australia many years ago and she had renounced her China citizenship, she is not entitled to any government benefit in China. She is also not covered by any private health insurance in China. Hence, she will have to pay for all her medical expenses out of her own pocket which will result in financial hardship.
When asked what it would mean if the visa is refused the visa applicant said the review applicant needs him to look after her. He said when he was in Australia in May 2017 she was in hospital for ten days and he stayed with her because she was lonely and depressed.
The Tribunal noted that since the parties commenced their relationship they have spent 19 days together in China from 10 November 2016 to 29 November 2016, 15 days together in China from 1 April 2018 to 15 April 2018 and 10 days together in China from 30 October 2018 to 9 November 2018. The visa applicant also visited Australia from 19 May 2017 to 25 June 2017.
The Tribunal accepts that the parties communicate with each other daily and that they both want the visa to be granted so that the visa applicant can look after the review applicant.
The parties have been married two years and seven months. They did not spend any time together as a couple prior to their engagement and they have spent only short periods of time together since they were married. The evidence did not demonstrate that the visa applicant provides emotional support to the review applicant in relation to her illness. The evidence was that the review applicant will not talk about her illness with the visa applicant because it makes her cry.
Matters raised by the delegate
The delegate raised areas of concern with respect to the nature of the parties’ commitment, notably issues with respect to the review applicant’s illness and the evidence of the parties’ communication.
The delegate noted that when the visa applicant was asked about the decision to enter a committed relationship knowing the review applicant was suffering from a serious illness, he said he didn’t know about her illness when he proposed in July 2016 and said he did not mind her illness at all. The delegate decided the visa applicant did not seriously consider the decision to enter the relationship. The parties told the Tribunal that the visa applicant did know about the review applicant’s illness when he proposed but he did not know the details or seriousness of the illness. The Tribunal accepted this evidence.
The delegate noted that when the visa applicant was asked to provide details in relation to the review applicant’s prognosis, he said that he did not know the details and said he knew the cancer cells had spread to her brain and that she may pass away because of the illness. The delegate decided his limited knowledge about the review applicant’s prognosis was an indicator that he had little interest in the review applicant’s health. The Tribunal asked both parties about the review applicant’s prognosis. The review applicant said she has not been given an expected life expectancy. In response to asking about her prognosis the visa applicant did not explain what he understood to be the likely outcome or development of review applicant’s illness. He said he is willing to look after her and referred to spending time at the hospital with her in 2017.
Regarding evidence of the parties’ communication, the delegate noted the visa applicant’s phone bills did not match the review applicant’s declared number. In her written statement the review applicant said that number was her mobile number before she changed to a new number. A copy of the review applicant’s phone bill was provided which showed her previous number.
The delegate noted the visa applicant’s WeChat records show he had frequent and in-depth conversations with Ms Chen and it appeared he had more meaningful communication with her than the review applicant. It was noted that he asked for information about the review applicant from Ms Chen. Ms Chen told the Tribunal that she and the visa applicant were classmates and said they communicate with each other every few days. She goes to the hospital with the review applicant and knows what is happening regarding her illness. She said the visa applicant asks her for information about the review applicant’s illness because she cries when he asks her. The Tribunal accepted this evidence.
Representative’s submissions at hearing
The review applicant’s representative submitted that the reason for the discrepancies in the review applicant’s evidence may have been due to her illness. He said her responses may have been emotional responses and referred to her mental state. The medical evidence provided did not refer to the review applicant’s emotional or mental health.
The review applicant’s representative also contended that the review applicant’s failures to satisfactorily respond to the Tribunal’s questions at times during the hearing may have been because of difficulties with the interpreter or may have been because she chose not to understand the questions. The Tribunal requested the representative to specify the difficulties with the interpreter. Only one difficulty was identified and that was in relation to a question asked of Mr Liren Wei. As noted, the Tribunal placed minimal weight on his evidence.
Post hearing submissions and evidence
The matters raised in the written submission also included:
·The apparent inconsistencies in the review applicant’s statements can be attributed to her deteriorating state of both physical and mental health. The discrepancies are more incoherence resulting from her illness and stress rather as inconsistencies per se.
·Following the hearing the review applicant fell ill. A letter dated 29 May 2019 from a social worker was provided. The letter advised that the review applicant had fallen ill after lunch on 27 May 2019 and had taken a taxi to St John of God Subiaco where she was admitted to the ward for treatment.
·The review applicant’s admission to hospital indicates her fragile state of health.
No medical evidence was provided to substantiate the contention that the review applicant’s deteriorating mental health contributed to the inconsistent evidence she provided during the hearing.
Conclusion
In considering whether the requirements of s.5F are met at the time of application and the time of decision, the Tribunal has had regard to all the circumstances of this relationship.
The Tribunal finds the parties are married to each other under a marriage that is valid for the purposes of the Act.
There was minimal evidence of the financial aspects of the relationship. The joint bank account appeared to have been opened after the delegate’s decision for migration purposes only.
The parties have not had the opportunity to establish a joint household.
The evidence of social recognition of the parties’ relationship was limited and was largely not persuasive. In addition, the inconsistent evidence from the parties about whether the review applicant’s goddaughter was aware of the relationship and was invited to the wedding is most concerning. This inconsistency reflects poorly on the parties’ credibility.
The evidence with respect to the nature of the parties’ commitment to each other was limited. They have spent only short periods of time together since they were married. The Tribunal was not satisfied that the visa applicant provides emotional support to the review applicant which, given her illness, would be expected in a genuine spousal relationship. Her evidence was that she doesn’t want to share this information with him because she becomes upset. In addition the visa applicant’s lack of knowledge about the review applicant’s prognosis is also concerning. In a genuine partner relationship the visa applicant would be expected to have taken more of an interest in the review applicant’s illness, even if he obtained information from others. This omission, in the Tribunal’s view, reflects poorly on his commitment to the review applicant.
The evidence taken as a whole tends strongly to suggest an application driven by an immigration outcome and there is very little, if anything, to support a finding that the parties are in a genuine and committed relationship.
For the above reasons, the Tribunal fails to be satisfied that there is a level of commitment to this relationship that is commensurate with a genuine and continuing spousal relationship.
On the basis of the above the Tribunal is not satisfied that these other requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.
Therefore the visa applicant does not meet cl.309.211 and cl.309.221.
Member of Family Unit – Secondary visa applicant
As the visa applicant does not meet criteria that are essential for the grant of the visa, the secondary visa applicant therefore does not satisfy criteria for the grant of the visa as is required by cl.309.311 or cl.309.321.
For the reasons above, the visa applicants do not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Christine Kannis
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).

[2019] AATA 3897

28 June 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction