YUAN (Migration)

[2024] AATA 281

YUAN (Migration) [2024] AATA 281 (12 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs HONGYING YUAN

REPRESENTATIVE:  Ms QUEENIE YU (MARN: 0427214)

CASE NUMBER:  1825791

HOME AFFAIRS REFERENCE(S):          BCC2015/3287500

MEMBER:SM Michael Cooke

DATE:12 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211 of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 12 February 2024 at 3:59pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – applicant unable to return from visit to home country for some time because of COVID travel restrictions – relationship accepted by applicant’s family and sponsor’s sister – sponsor’s health and applicant’s physical and emotional support – decision under review remitted

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

CASE
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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 November 2015 on the basis of her relationship with her sponsor. 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 (the applicant) did not satisfy cl 820.211 because she did not meet s.5F of the Act.

4. The applicant appeared before the Tribunal on 15 February 2023 and 7 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the applicant’s sister in the first hearing and the applicant and sponsor in the second. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the parties meet the definition of spouse in s.5F of the Act.

   Whether the parties are in a spouse or de facto relationship.

8. Clauses.820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

9. ‘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 parties’ 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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?

    Findings and reasons about each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2):

    ·Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

11. The applicant indicated that the sponsor is a Centrelink client and the parties’ rent and other bills would be deducted from her husband’s Centrelink. She indicated she buys food for the parties from her account as she brought money from China. The applicant travels each year to China where her son is well situated, and she has a flat and a Chinese pension. So, during the pandemic (when she was forced to remain in China), she was able to survive without assistance from her sponsor. She has also worked part time in Australia. The parties had a joint bank account which was scammed and closed. The applicant was nominated as a beneficiary on the sponsor's insurance policy.

12. The Tribunal is satisfied that the financial aspects of the parties’ relationship are spousal.

    ·Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

13. The applicant and sponsor live in Mudgee in a governmental social housing duplex house. They have no children together as both are mature persons with grown families. They have shared the housework (according to the oral evidence) with the applicant primarily looking after the house and her husband doing outside maintenance. However, he has been prevented recently from doing so by a significant leg injury.

14. The Tribunal is satisfied that the parties’ household is spousal in nature.

    ·Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

15. The applicant’s sister lives in Sydney and the parties lived with her at one time. The sponsor takes the applicant to visit her regularly. The sponsor indicated he had travelled to China and met the applicant’s family and had been accepted by them. Unfortunately, the applicant’s family live in a part of China with intensely cold winters which has pre-empted a further visit by him. They undertake joint social activities in Mudgee such as restaurants but present as a more home-based couple.

16. The Tribunal is satisfied that the social aspects of the relationship are spousal in nature.

    ·Nature of persons' commitment to each other – including duration of the relationship, the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

17. The parties met in 2015 and married in 2016. The applicant was prevented from returning on a family visit to China for more than two years by the pandemic. Despite this unfortunate time and the applicant’s lack of English fluency they have remained committed to each other. The sponsor was a truck driver for 40 years but has recently had some serious issues with his leg and the applicant has provided emotional and physical support to him. They both insist in oral evidence that they see their relationship as long-term.

18. The Tribunal is satisfied that the nature of the parties’ commitment to each other is spousal.

    ·Any other circumstances of the relationship.

19. The parties come from two very different cultures but are very satisfied with sharing their lives together. The applicant, in particular, finds the personal qualities of the sponsor very admirable from her own Chinese cultural perspective.

20. The Tribunal has considered “the full circumstances of the relationship” and makes the following findings on these matters against s 5F(2)(b)-(d) of the Act. The parties have a mutual commitment to a shared life to the exclusion of others; a genuine and continuing relationship and they live together and not separately and apart on a permanent basis.

21. 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 at the time of this decision.

22. Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).

23. The Tribunal finds that that the additional time of application sub-criteria are met such as the sponsorship criteria in cl 820.211(2)(c). The applicant was a substantive visa holder and met the Schedule 3 requirements in cl 820.211(2)(d) as well as the additional time of decision sub-criteria for sponsorship in cl 820.221(4).

24. 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 820 visa.

    DECISION

25. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211 of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).