Qu (Migration)

[2024] AATA 640

Qu (Migration) [2024] AATA 640 (15 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Xincai Qu

VISA APPLICANT:  Ms Chunxue Song

REPRESENTATIVE:  Mr David Yang (MARN: 0744792)

CASE NUMBER:  1925772

DIBP REFERENCE(S):  BCC2018/394984

MEMBER:Wan Shum

DATE:15 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl 309.211 of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 15 March 2024 at 4:52pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – shared purchases – sponsor’s regular visits to China – joint international travel – evidence of communication – social but not official recognition of the relationship – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

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 27 August 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 January 2018 on the basis of her relationship with the review applicant. At that time, Class UF contained 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). Relevantly in this case, one of the primary criteria that must be satisfied by the visa applicant is that she is the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

3. The delegate did not consider that the evidence and information provided was sufficient to demonstrate that the visa applicant is the spouse, as defined under s 5F of the Act, of such a person and refused to grant the visa.

4. The review applicant (the sponsor) sought review of that decision and was represented in relation to the review. The review applicant appeared before the Tribunal on 12 December 2023 to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages. The Tribunal also received oral evidence from the visa applicant by videoconference, also with the assistance of the interpreter. The representative was present throughout.

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

   BACKGROUND

6. The visa applicant is a national of the People’s Republic of China (China), born in April 1972. She applied for the visa on the basis of her claimed relationship with the sponsor, who was born in China in October 1965 and now lives in Sydney. Various documents were submitted with the application and subsequently in support of the existence of a genuine relationship.

7. The parties claim that their first contact was online in November 2016, having been introduced by a mutual friend. They claim that they first met in China in January 2017 during the sponsor’s travel. They claim to have also met during the visa applicant’s trip to Australia in April 2017 for a meal. The sponsor returned to China on 29 May 2017 and proposed to the applicant on that occasion. The parties registered their marriage on 2 September 2017 and travelled to Japan together. The sponsor returned to Australia on 24 November 2017.

8. The parties claim that after returning to Australia, they maintained contact over WeChat and provided evidence of chats from November 2017 to February 2018. The visa application was lodged in January 2018 and the next time the sponsor returned to China was in February 2018. He then returned to Australia on 7 May 2018 and departed Australia on a further two occasions in 2019 prior to the visa refusal. They claim to have travelled to different cities in China together as a couple after their marriage.

9. After requesting additional information a couple of times, the delegate considered the evidence before the Department and refused the application on 27 August 2019 on the basis that the visa applicant did not satisfy cl 309.211(2).

10. 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 sponsor who is an Australian citizen.

11. ‘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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the parties are in a spouse or de facto relationship

    Are the parties validly married?

12. Only parties that are validly married may be considered to meet the requirements of a married relationship. As evidence of their marriage, a marriage certificate with translation was provided to the Department confirming that the marriage between the parties was registered on 2 September 2017. This is the sponsor’s fourth marriage – he was previously married to Ling Sun and had a child together, but the marriage ended in 2010 when they divorced, then he married Yuanli Wang and sponsored her for a partner visa in 2010 which was granted in July 2012, but they then divorced in July 2014. His third marriage was to Xiujuan Li who he sponsored for a partner visa, but later withdrew his sponsorship. The marriage to Ms Li was from 30 March 2015 to 18 August 2017, when the divorce order took effect.  

13. The visa applicant has been married once previously, which ended when her first husband died. They have one child together.

14. On the information before it, the Tribunal finds that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

15. The Tribunal has considered each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2), in forming a view as to whether the applicant and sponsor meet the definition of spouses as set out below.

    Financial aspects of the relationship –

16. As noted in the delegate’s decision record, it does not appear that any evidence was provided in respect of this aspect of the relationship. Prior to the hearing, the Tribunal received evidence of invoices for accommodation and travel as well as receipts for purchases made for the period since the visa was refused. The receipts for purchases of items such as Apple iPhone 7 dated 7 November 2019 were marked as a purchase made by the sponsor for the visa applicant.

17. Both parties displayed basic knowledge about each other’s financial circumstances. The sponsor holds a pensioner concession card which he claimed was issued in respect of a disability following a car accident in 1996. When queried about this, he explained that he had been receiving disability support since 2013. The most recent bank statements of the sponsor provided to the Tribunal reflect that he is receiving pension payments of around $1,281.50 per fortnight. The visa applicant claimed that she is retired and in receipt of a retirement pension.

18. The sponsor gave evidence that they use their own money as they live apart, but that when they travel together, he generally pays. When asked for further detail, he referred to the visit to Thailand, where the visa applicant’s daughter lives, and said that they stayed with her for a few days, and each paid for their own airline tickets and the visa applicant explained that she flew from China while the sponsor had flown from Australia. The sponsor said that when they went to Pattaya together, he experienced some issues with his credit card, so the visa applicant paid for the accommodation, but then he paid for food.

19. There is no evidence of joint ownership of assets or joint liabilities; nor are there any legal obligations owed to the other party. In respect of sharing of day-to-day household expenses, the typical evidence of household expenses in the form of bills or receipts has not been provided but the Tribunal notes that they live in different countries and have spent only a limited period of time together.

20. While the evidence of joint finances is limited to purchases they claimed were made by the sponsor which for the visa applicant, the Tribunal accepts that the evidence would be limited given the parties live apart in different countries and based on their individual financial circumstances.

    Nature of the household -

21. As noted above, the parties do not live together as the visa applicant lives in Yingkou city in Liaoning Province in China, while the sponsor lives in a unit in Riverwood, a suburb of Sydney, Australia which he said he shares with another tenant.

22. The sponsor’s claim is that every time he returns to China, he spends time with the visa applicant. The visa applicant gave evidence that when the sponsor visits her in China they travel together and that they otherwise stay in her home as a married couple. The parties provided copies of records of temporary residence forms for overseas visitors with translations for some of these visits, the earliest record was from 9 November 2019. In terms of the total period of time spent together in person, prior to their marriage in April 2017, they claim to have spent time together on two occasions when the sponsor had returned to China and shared a meal when the visa applicant had come to Australia with a tour group. In respect of concerns that the sponsor had not stayed with the visa applicant for the entirety of his trips to China, the Tribunal notes that the sponsor had family members, including his mother, who lived in a different province in China and accepts that he would have visited his family as well. Since then, the sponsor claims to have returned to China a further 10 times and he would spend a couple of days with his mother before going to see the visa applicant. He claims to spend 2 and a half month in China each time he travels there. This is consistent with departmental records which reflect that, other than from 2020 to 2022, the sponsor had departed and returned to Australia on 12 separate occasions with the majority of these trips averaging 80 days. He most recently departed on 18 December 2023 and provided evidence after the hearing that he was staying with the visa applicant. At the time of this decision, he remains offshore.

23. The photographs provided reflect that they have spent time together in what appear to be parks and tourist spots in different locations in China as well as in domestic scenarios having meals together as well as eating out with the visa applicant’s sisters and mother. In respect of children, there are no children of the relationship, with each party having one child from their previous relationships. The parties gave evidence that the sponsor has met the visa applicant’s daughter when they both met up in Thailand and the visa applicant has not met the sponsor’s daughter. The Tribunal notes that both parties’ children are adults, and they are not claiming to have any joint responsibility for care and support of children.

24. Based on the information provided, the Tribunal accepts that there is evidence that the sponsor has registered stays in the visa applicant’s house from 9 November 2019 and 18 December 2023. The visa applicant gave evidence at the hearing that they do household chores together and cook together when the sponsor has stayed with her.

25. Given that they live in different countries, the Tribunal does not consider that the limited evidence in respect of this aspect and the lack of shared finances of itself undermines their claims of being a married couple.

    Social aspects of the relationship –

26. When the application was made, there were no witness support statements provided about their relationship, but the parties claim to have represented themselves to other people as being married to each other, with the sponsor giving evidence at the hearing that their wedding dinner was attended by around 40 people. It was claimed that the sponsor’s mother, his uncle and aunts and older brother attended the wedding from his side and that the visa applicant’s mother, daughter and son-in-law attended from her side. There are several photographs of their wedding day, including one together with their mothers. The visa applicant claims that they met each other’s family before the marriage, and photographs have been provided of the parties together with several others which were described as the visa applicant’s relatives and said to have been taken in September 2017, and other photographs taken at another location with the friend that they claim introduced them to each other also in September 2017. There are also photographs of the parties with the sponsor’s mother and brother and with the sponsor’s family and friends at a dinner in November 2019, as well as photographs of the two of them and the visa applicant’s family at different sightseeing locations and Yingkou city marked as taken in October 2023 and January 2024.

27. Following the hearing, brief statements from one of the sponsor’s brothers and daughter were provided both stating that they believe the relationship is genuine and continuing. Both parties displayed a reasonable knowledge of each other’s family at the hearing, although the visa applicant did not demonstrate that she knew that all of the sponsor’s siblings now live in Australia. The sponsor thought she must have forgotten and he claimed that his older brother and only moved to Australia the previous year.

28. The evidence given with the visa application reflects that they travelled to Japan together in October 2017 and had also travelled to different parts of China by train. There are photographs of the parties visiting different parts of China with their relatives and friends from November 2019. There are also copies of train tickets, boarding passes and travel bookings for both parties evidencing travel together. On review, they provided two invoices for accommodation at Cape Dara resort in Pattaya, one in each of their names for 16 to 20 January 2023 and boarding passes for the visa applicant’s travel to Bangkok via Guangzhou which have the dates “11 Dec” and “12 Dec” and a stamp reflects that the flight into Bangkok was 12 December 2022 as well as a photograph of the two of them together at what appears to be an airport terminal as there is a luggage tag for one of the suitcases which has BKK printed on it, which is the airport code for Bangkok. The sponsor’s movement records reflect that he departed Australia on 12 January 2023 on a flight bound for Bangkok and returned to Australia on a flight departing from Xiamen in China on 1 April 2023. It appears that the visa applicant had travelled to Thailand about a month prior to the sponsor’s travel and they only spent a few days together that trip.

29. While apart, they claim to have kept in contact mainly by WeChat and also phone calls. Following the hearing, translations of a selection of conversations was provided from 10 June 2017 until now which reflect conversations regarding daily matters. The Tribunal accepts that they have maintained contact throughout their periods of separation.

30. It does not appear to the Tribunal that the sponsor had declared that he was married to any public or private institutions in Australia. The information before the Tribunal reflects that the sponsor had not informed Social Services of his marriage. When this was put to the sponsor, he stated that they had never asked him. Although of some concern, the Tribunal notes that he also appears to have an address in Villawood on his driver’s licence and said that this was his daughter’s address which he explained was so that all his correspondence goes to his daughter as his English was not good. It appears that he is not concerned about the accuracy of his recorded address and marital status.

31. So, while the evidence reflects that their married relationship is recognised by their family members and other friends and acquaintances, the sponsor did not formally declare his marriage to the Social Services.

    Nature of persons' commitment to each other –

32. Based on their statements regarding their relationship, they had spent time together and met each other’s family before getting married in September 2017 the parties have been married for over 6 years now. The visa applicant has been to Australia once with a tour group in 2017, while the sponsor has returned to China twice yearly except for the period from 2020 to 2022 which the Tribunal accepts was due to border closures and restrictions on travel due to the COVID-19 pandemic. In that time, they claim to have spent most of the time the sponsor has been in China together, which is around 18 months altogether, and also a trip to Thailand to meet each other when travel was still restricted. However, the supporting evidence reflects a shorter period of time of possible cohabitation, with the registration of overseas visitor forms provided, with the earliest reflecting the dates from 9 November 2019 until 6 February 2020. However, the sponsor had returned to Australia on 10 December 2019 so did not stay the full period recorded on the form. The more recent record was from 18 December 2023 until 18 March 2024, which appears to reflect that the dates are maximum periods of stay rather than actual periods of stay. While the exact period of time spent together is difficult to determine on the information before the Tribunal, there is evidence that they have maintained regular contact via messaging, phone and video calls on their mobile phone devices. These screenshots (some translated) indicate that they have maintained contact since at least mid-2017.

33. The parties gave evidence that they communicate daily, emotionally support each other and desire to reunite and live together in Sydney as a married couple.

34. In respect of the requirement that they live together or do not live separately and apart on a permanent basis, the parties live in different countries, with the visa applicant in China and the sponsor living in Sydney, Australia. There is some supporting evidence that the sponsor lives with the visa applicant in her home based on registration of overseas visitor forms provided for a couple of his trips to China. Having considered all the evidence, the Tribunal has formed the view that they intend to live together as a couple when the visa applicant is able to travel to Australia to join the sponsor and the Tribunal considers that the evidence supports a conclusion that, while they live in different countries, they do not live separately and apart on a permanent basis.

1. Having considered all of the circumstances and evidence provided, the Tribunals finds that they have a mutual commitment to shared life to the exclusion of others; are in a genuine and continuing relationship; and that they do not live separately and apart on a permanent basis. While the information provided to support their claims that they were in a married relationship at the time of the visa application was considered to be limited, the information presented on review and at the hearing reflects that they have maintained a marital relationship which is recognised and supported by those closest to them. Overall, the Tribunal considers that the evidence tends to support a conclusion that the relationship was genuine when the application was made.

2. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

3. Therefore, the visa applicant meets cl 309.211 and cl 309.221.

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

   DECISION

5. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl 309.211 of Schedule 2 to the Regulations

   ·cl 309.221 of Schedule 2 to the Regulations

   Wan Shum
   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).