Yao (Migration) - [2025] ARTA 1966

Yao (Migration) [2025] ARTA 1966 (11 July 2025)
DECISION AND
REASONS FOR DECISION
Review Applicant:  Ms Hong Yao
Visa Applicant:  Mr Hui Gu
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2000835

Tribunal:Senior Member M Ison
Place:Melbourne
Date: 11 July 2025
Decision:The Tribunal sets aside the decision in relation to the visa applicant and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the 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 11 July 2025 at 4:34pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – previously married and divorced in home country – sponsor’s second marriage to Australian citizen, and own partner visa and permanent residency – return to home country, illness and support from applicant – divorce from second husband and re-establishment of relationship with applicant – return to Australia and remarriage during return visit – applicant’s illness during COVID restrictions, with sponsor unable to travel – no updated financial information provided – detailed updated and additional information about household and social aspects of relationship and nature of commitment provided – supporting statements from adult children and siblings – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 348A(1)
Administrative Review Tribunal Act 2024 (Cth), 106(1), (3)
Migration Regulations 1994 (Cth), r 1.15A(2), (3), Schedule 2, cls 309.211, 309.221
CASE
He v MIBP [2017] FCAFC 206
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The visa applicant in this review is Mr Hui Gu who is a 71-year-old national of China. Mr Gu applied for a Partner (Provisional) (Class UF) Subclass 309 visa on 27 June 2018.
The purpose of Mr Gu’s Partner visa application was to be able to join his wife, Ms Hong Yao, who is a 60-year-old Australian permanent resident, in Australia. Ms Yao was born in China and obtained Australian permanent residency through a previous Partner visa application. Ms Yao sponsored Mr Gu’s application for the Partner visa.
On 4 December 2019 Mr Gu’s application for the Partner visa was refused by a delegate of the Minister under s 65 of the Migration Act 1958 (Cth) (the Act).
On 17 January 2020 Ms Yao, as the review applicant, applied to the Administrative Appeals Tribunal (AAT) to review the decision to refuse Mr Gu’s application for the Partner visa.
Mr Gu is referred to as the applicant and Ms Yao as the sponsor in these reasons for decision.
Outcome of this review
For the following reasons, the Tribunal has concluded that the decision under review is set…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yao (Migration)

Details

AGLC: Yao (Migration) [2025] ARTA 1966
Case: [2025] ARTA 1966
Decision Date: 11 July 2025

CaseChat Overview and Summary

In the case of Yao (Migration), the applicant, who was previously married and divorced, sought a review of the refusal of her Subclass 309 (Partner (Provisional)) visa application by the Australian Government. The applicant, who is a citizen of China, is in a relationship with a sponsor who is an Australian permanent resident. The applicant claims that she and the sponsor have re-established their relationship and are now married, despite the applicant's illness during the COVID-19 restrictions, which prevented the sponsor from travelling to Australia. The Tribunal was required to determine whether the applicant and the sponsor were in a genuine and continuing married relationship as defined in section 5F of the Migration Act 1958 (Cth) at the time of the application and at the time of the Tribunal's decision. The Tribunal had to consider the validity of their marriage, their mutual commitment to a shared life, the financial and social aspects of their relationship, and any other relevant circumstances.

The key legal issues involved in this case were whether the applicant and the sponsor were validly married, and if they met the requirements for a genuine and continuing married relationship. The Tribunal had to assess the evidence provided by the parties, including the Chinese marriage certificate and the supporting documents and statements from family members. The Tribunal also needed to determine if a hearing was necessary to make a decision, considering the detailed updated and additional information provided by the parties.

The Tribunal found that the applicant and the sponsor were validly married, as evidenced by the Chinese marriage certificate and its certified translation. The Tribunal accepted that the applicant and the sponsor were in a genuine and continuing married relationship, as supported by the detailed updated and additional information provided, including statements from the applicant's adult children and siblings. The Tribunal concluded that a hearing was not necessary to make a decision, as the material before it was sufficient to determine all issues in the proceeding. Consequently, the Tribunal remitted the decision to the delegate for reconsideration in light of the updated and additional information provided.

The Tribunal ordered that the decision be remitted to the delegate for reconsideration. This decision and statement of reasons were made by the Tribunal on 14 October 2024.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

After reviewing the updated and additional information provided to the Tribunal, the Tribunal formed the view that it could make a decision wholly in favour of the applicant that adequately determines all issues in the proceeding based on the material before it without a hearing. This is permitted by sections 106(1) and (3) of the ART Act.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant and the sponsor are in a married relationship as defined in s 5F of the Act when considering the matters set out in reg 1.15A(2) and (3) of the Regulations.Whether the parties are in a spouse relationship Clause 309.211(2) requires that, at the time the visa application was made, the applicant is the spouse 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 applicant must continue to be the spouse at the time of the Tribunal’s decision: cl 309.221. In the present case the applicant claims to be the spouse of the sponsor who the Tribunal accepts is an Australian permanent resident. ‘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.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. The parties provided to the Department a copy of a Chinese marriage certificate with a certified translation into English stating the parties were married on 12 January 2016 in China. The Tribunal accepts this evidence. On the evidence before the Tribunal, the Tribunal finds 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) of the Act.Are the other requirements for a spouse relationship met?Background The Tribunal received submissions and documents on behalf of the parties on 5 November 2020, 30 November 2020, 2 December 2020, 30 May 2023, 20 September 2023, 11 June 2024, 13 September 2024 and 11 October 2024.

Decision

Reasons for decision

Under the transitional provisions in the Transitional Act, applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.The primary decision The applicant provided the Tribunal with a copy of the primary decision. At the time the applicant applied for the Partner visa, 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 (Cth) (the Regulations). The applicant must satisfy the primary criteria for the grant of the visa. There are no secondary applicants in this review. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of clauses 309.211 (at the time of application) and 309.221 (at the time of decision) of Schedule 2 to the Regulations. The delegate found the documentary evidence provided by the parties to support the visa application was “weak” and the delegate was not satisfied they were in a genuine and continuing married relationship. The Minister for Immigration and Citizenship is listed as the respondent in this review on the cover sheet to this decision. Section 348A(1) of the ART Act provides:The Minister is taken to be a non‑participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act. Therefore, the Respondent did not participate in this review.Previous constitution of this review and Tribunal hearing This review was first constituted to another Senior Member of the Tribunal who scheduled three Tribunal hearings, the first of which was conducted on 6 June 2024 and adjourned after the Senior Member had not taken any evidence from the applicant or sponsor. The first of the two subsequently scheduled hearings on 11 July 2024 was cancelled at the request of the applicant and the second subsequently scheduled hearing for 26 September 2024 was cancelled by the previous Senior Member who was constituted this review. On 13 September 2024 the Tribunal as presently constituted requested detailed additional and updated information from the sponsor and the applicant. On the same day the sponsor and the applicant provided a large amount of additional information to the Tribunal in response to requests for additional information by the Tribunal as previously constituted. On 11 October 2024 the sponsor and the applicant provided a further large amount of additional information and documents to the Tribunal in response to the request of the Tribunal as presently constituted on 13 September 2024. The sponsor as the review applicant in this review was represented by Ms Linda Tie Liu of Sydney Immigration & Student Services in relation to the review. Ms Liu is referred to as the representative in these reasons for decision.No Tribunal hearing by the Tribunal as presently constituted

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.