Xue (Migration) - [2024] ARTA 823

XUE (MIGRATION) [2024] ARTA 823 (6 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Longjie Xue
Visa Applicant:  Mrs Qianzhen Shen
Respondent:  Minister for Home Affairs
Tribunal Number:  2101079

Tribunal:General Member S Durvasula
Place:Sydney
Date: 6 November 2024
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 of Schedule 2 to the Regulations; and
·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 6 November 2024 at 3.11pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – parties validly married – parties have joint financial arrangements – planning a family together – visa applicant is the spouse of the sponsor and meets the requirements of s 5F(2) – parties provide one another with companionship and emotional support – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F ,65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221
CASES
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 on 14 January 2021 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 visa on 3 September 2019 on the basis of her relationship with their 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, finding the visa applicant did not satisfy
cl 309.211 and cl 309.221. The delegate was not satisfied the visa applicant and the review applicant were in a genuine and continuing relationship at the time of application and decision as there was insufficient evidence about the relationship.
The review applicant and the visa applicant appeared before the Tribunal on 6 November 2024 by video link to give evidence and present arguments.
The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the visa applicant is the spouse of her sponsoring partner (the review applicant).
Background
The visa applicant is a 29-year-old Chinese national from Guangdong Province. She is being sponsored by Mr Longjie Xue (the review applicant), a 32-year-old Australian permanent resident who was born in China in Fujian Province.
The parties first claim to have met on 14 April 2017 through an online computer game. They entered into a romantic relationship on 14 May 2018 and first met in person on 20 December 2018 when the review applicant travelled to China. They registered their marriage in Fujian on 24 December 2018. A marriage certificate issued on 14 January 2019 has been provided. The parties took wedding photos in August 2021 and had a larger wedding banquet and celebration on 12 January 2023.
The visa application was lodged on 3 September 2019.
The review applicant has made the following trips to China since meeting the visa applicant: 19 December 2018 to 1 March 2018 (2.5 months); 16 December 2019 to 14 June 2020 (6 months); 26 August 2021 to 28 February 2023 (18 months); and 17 May 2024 to current

(6 months).
Whether the parties are in a spouse or de facto relationship
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 Australia citizen.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the 2 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 the sponsor’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.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. In this case, the Tribunal is satisfied that the parties were married in China on 24 December 2018 and the marriage is valid under Chinese law. A marriage certificate is before the Tribunal. On the evidence, 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?
The Tribunal found both the review applicant and the visa applicant to be credible witnesses who gave consistent and detailed evidence about their relationship that was supported by documentary evidence. They demonstrated sound knowledge of each other’s circumstances and genuine affection for each other. The Tribunal accepts that the visa applicant may have been nervous when she was interviewed by the Department. The Tribunal therefore accepts their evidence as to the circumstances in which they met and decided to marry, got married, how they have subsequently maintained their relationship and their future plans.
The delegate refused the visa as there was limited evidence about the relationship at the time of application. The Tribunal now has considerably more evidence available to it than was available at the time of application and at the time of the delegate’s decision, including documentary evidence and oral evidence. In this regard, the Tribunal has had regard to the subsequent history of the relationship and the additional supporting documentation to establish that it was genuine and continuing at the time of application.
The delegate had concerns that the parties met online and got married within a few days of meeting in person. At the hearing, the parties gave a credible explanation as to how their relationship developed. The Tribunal accepts that their relationship developed online and they formed a commitment to each other and discussed marriage before they met in person. They had both discussed their relationship with their respective family members and the visa applicant had met the review applicant’s parents through WeChat before they married.
The Tribunal now considers the factors under reg 1.15A(3).
Financial aspects of the relationship
In relation to the financial aspects of the relationship, the parties have provided documentary evidence that the review applicant financially supports the visa applicant and they pool his income and financial resources. The Tribunal accepts that the visa applicant has worked in reception jobs while the review applicant has been in Australia and the review applicant works in construction in Australia. As the review applicant does not have a bank account in China, he transfers money into the visa applicant’s bank account and they pool that money for their shared expenses. ‘Alipay’ statements and money transfer receipts have been provided as evidence of these transfers. The Tribunal therefore accepts that the review applicant provides substantial financial support to the visa applicant, consistent with a genuine relationship.
The delegate was concerned that the review applicant had transferred large amounts of money to the visa applicant (approximately $30,00) before they had met in person. At the hearing, the review applicant gave a detailed explanation of the purpose of these funds. He had transferred this money to support the visa applicant after she stopped working, but also to pay for their wedding; for their shared use when he visited China; and as a gift for the visa applicant’s parents. He acquired the money through his savings from working in construction.
The parties have also provided evidence, such as receipts, that they have purchased gifts for each other and their respective family members. At the hearing, they gave consistent evidence about their current and future financial arrangements. On the basis of the above evidence, the Tribunal accepts that the parties have joint financial arrangements, consistent with a genuine and continuing relationship.
Nature of the household
At the time of application in September 2019, the Tribunal accepts that it was difficult for the parties to establish a joint household as they lived in different countries. Nevertheless, the review applicant spent approximately 2.5 with the visa applicant after they registered their marriage.
At the time of decision, the Tribunal is satisfied that the parties have lived together as a couple in China for substantial periods between 2019 and 2024. The review applicant spent 6 months with the visa applicant between 6 December 2019 and 14 June 2020, 18 months between 26 August 2021 and 28 February 2023 and 6 months from 17 May 2024 to the current time.
The Tribunal accepts their evidence that during the review applicant’s trips to China, they have mostly stayed at the review applicant’s parents’ property in Fuqing, with trips to see the visa applicant’s adoptive and biological parents in Guangzhou. The parties have provided photographs and documentary evidence demonstrating that they have stayed at the same address.
At the hearing, the parties gave consistent evidence about their household arrangements, sharing of household tasks and daily routine during the periods they have lived together. The Tribunal accepts the parties’ evidence that in Australia, they initially plan to live with the review applicant’s parents and later purchase their own property. The partied do not yet have children but they are planning to have a family.
Overall, the Tribunal finds the evidence about the nature of the household establishes that the parties are in a genuine and continuing relationship.
Social aspects of the relationship
The Tribunal accepts that the parties present as a couple to their friends, family and the community in both Australia and China. The Tribunal accepts that their wedding celebration/banquet was delayed due to the COVID-19 pandemic. They have provided evidence (such as photographs and receipts) that they held a large wedding banquet in January 2023 with approximately 220 people, where family and friends from both sides attended. This represents a public celebration of their relationship. The parties have provided several photos of them together, along with friends and family members in China, undertaking social activities in both Fuqing and Guanzhou.
The Tribunal has statements from the review applicant’s parents, the visa applicant’s adoptive parents and the review applicant’s siblings, attesting that the couple’s relationship is genuine and continuing. The statements from their parents are detailed and speak of particular incidents, time spent together as a family and the personal qualities and character of the parties. The Tribunal accepts that the parties have regularly spent time with their respective parents and extended family members in China. At the hearing, they demonstrated good knowledge of, and affection for each other’s family members.
Based on the evidence about the social aspects of the relationship, the Tribunal is satisfied that the parties plan and undertake joint social activities together and that their relationship has been declared to and accepted by their friends, family members and acquaintances.
Nature of the commitment
The Tribunal has accepted that the parties commenced their relationship in May 2018 and they married in December 2018. At the time of application, they had been married for approximately 9 months. At the time of decision, their relationship has been ongoing for over 6 years. The Tribunal accepts that during periods of separation, they have daily contact as demonstrated by detailed call and chat records.
The Tribunal is satisfied the parties provide each other with companionship and emotional support. The review applicant has demonstrated a significant commitment to the relationship by leaving his job and travelling to China to spend long periods of time with the visa applicant. He has also financially supported her and her family. The visa applicant has demonstrated commitment to the relationship by moving from Guanzhou to Fuqing while the review applicant has been in China. At the hearing, the parties both spoke of the emotional and moral support they give to each other and the companionship they provide to each other.
The parties have provided medical evidence that they are currently undergoing IVF treatment to conceive a child. The fact that they are planning a family together demonstrates a significant and long-term commitment to the relationship. The parties are both a similar age and have similar interests and common values. The Tribunal accepts the parties have discussed and made plans for their future together in Australia.
On the evidence before it, the Tribunal is satisfied the parties had a long‑term commitment to each other at the time of application. The Tribunal is satisfied that their commitment remains at the time of decision.
Conclusion
Having regard to all aspects of the relationship, the Tribunal is satisfied that, at the time of application and decision, the visa applicant and the review applicant had, and continue to have, a mutual commitment to a shared life as a married couple to the exclusion of all others. The Tribunal accepts their relationship is genuine and continuing. The Tribunal accepts that they do not live separately and apart on a permanent basis.
The Tribunal finds the visa applicant is the spouse of the sponsor and meets the requirements of s 5F(2) at the time the visa application was made and continues to meet it at the time of this decision. Therefore, the visa applicant meets cl 309.211 at the time of application and cl 309.221 at the time of decision.
Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa 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 of Schedule 2 to the Regulations; and
·cl 309.221 of Schedule 2 to the Regulations.
Date of hearing:  6 November 2024
Representative for the Applicant:           Ms Charmaine Chong
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).