Xin (Migration)

[2022] AATA 3712

Xin (Migration) [2022] AATA 3712 (25 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dechang Xin

REPRESENTATIVE:  Mrs Yi Zhang (MARN: 1463250)

CASE NUMBER:  1831845

HOME AFFAIRS REFERENCE(S):          BCC2016/3117774

MEMBER:M. Edgoose

DATE:25 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl 820.211(2)(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 25 October 2022 at 11:59am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine relationship – financial, household and social aspects of relationship, and nature of commitment – substantial supporting evidence provided to tribunal – statutory declarations from family, friends and colleagues, and financial and communication records – long marriage and two children – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65, 360(2)(a)
Migration Regulations 1994 (Cth), r.15A(3), Schedule 2, cls 820.211(2)(a), 820.221

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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 19 September 2016. The delegate refused to grant the visa on 25 October 2018.

2. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) as the delegate was not satisfied that the relationship was genuine.

4. Since 30 October 2018 the day the applicant submitted his application for review form to the Administrative Appeals Tribunal the applicant has provided a substantial amount of evidence in support of his claim that he is in a genuine relationship with the sponsor, his wife. The applicant has been married to the sponsor since 20 December 1981 and in that time has raised two children. The applicant submitted a copy of the marriage certificate to the Tribunal. Further evidence the was submitted to the Tribunal in support of the applicant being in a long standing genuine relationship with the sponsor were multiple relationship statements, multiple Form 888 Statutory declaration from family, friends and work colleagues, joint Westpac and CBA bank statements, Australia Tax Office information, WeChat communication records, phone bills and a substantial submission from the applicant’s representative.

5. Given this the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

6. The Tribunal is satisfied that the applicant and sponsor meet the requirements of reg 1.15A(3). The evidence submitted includes evidence of the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

7. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

8. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   decision

9. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

   ·cl 820.211(2)(a) of Schedule 2 to the Regulations

   ·cl 820.221 of Schedule 2 to the Regulations.

   M. Edgoose
   Member