Peng (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The visa applicant, a citizen of China, claimed to be the spouse of the review applicant, an Australian citizen. The core dispute revolved around whether the relationship between the parties met the definition of a "spouse" as defined by section 5F of the Migration Act 1958 (Cth). The decision was made by Christine Kannis, a Member of the Tribunal.

The Tribunal was required to determine whether the relationship between the visa applicant and the review applicant constituted a "married relationship" for the purposes of the Act. This involved assessing whether the parties were married to each other under a marriage valid for the purposes of the Act, whether there was a mutual commitment to a shared life to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A of the Migration Regulations 1994.

The Tribunal's reasoning focused on the validity of the marriage and the evidence presented. While a marriage certificate from the People's Republic of China indicated a registration date of 17 November 2016, the review applicant had stated during proceedings that the marriage date was 23 October 2016. The applicant's representative explained this discrepancy by referring to the Chinese cultural practice of remembering dates according to the Lunar calendar, where November 2016 corresponded to the 10th moon. However, the Tribunal found this explanation insufficient to resolve the conflict between the documentary evidence and the oral evidence regarding the marriage date. This inconsistency, coupled with the lack of other substantial evidence demonstrating a genuine and continuing spousal relationship, led the Tribunal to conclude that the criteria for the visa were not met.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.