Zhang (Migration)

[2024] AATA 1674

Zhang (Migration) [2024] AATA 1674 (5 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mingfen Zhang

REPRESENTATIVE:  Mr Xin Cai Chen (MARN: 0100609)

CASE NUMBER:  1934978

HOME AFFAIRS REFERENCE(S): BCC2018/2433615 BCC20182433615

MEMBER:Ann Duffield

DATE:5 June 2024

PLACE OF DECISION:  Canberra

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(2)(a) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 05 June 2024 at 3:00pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – significant age difference – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

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 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 6 June 2018 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 did not satisfy cl 820.211 because they were not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The applicant appeared before the Tribunal on 23 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. 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.

   BACKGROUND

7. The applicant is a citizen of China born in September 1976. She has declared no previous marriages or children.

8. The sponsor is an Australian permanent resident born in January 1958. He first arrived in Australia on an aged or contributory parent visa in 2012. He has declared a previous marriage which ended in divorce in June 2003. There is one child of this relationship who now lives in Australia.

9. The parties claim to have first met in August 2017 at Bondi Beach and were married on 8 May 2018.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

    Before the Tribunal

11. The Tribunal has before it a copy of the department’s file and the delegate’s decision provided by the applicant along with his application for review. The parties also provided the Tribunal with additional documentation including bank statements, some photographs of the two of them together and with others, joint health insurance and evidence of a joint address. They also provided relevant and detailed letters of support from the applicant’s long-term employer, the tenant of the investment property in front of their granny flat and a further detailed statement from the sponsor that he provided after the hearing.

    Whether the parties are in a spouse or de facto relationship

12. 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 permanent resident.

13. ‘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?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in NSW on 8 May 2018. A copy of the marriage certificate is at Folio 30 of the Department’s file. 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?

15. The sponsor and the applicant were open and forthcoming when pressed and understood the importance of providing detailed and relevant answers to the Tribunal’s questions. The Tribunal was persuaded by their evidence and for the following reasons the Tribunal is satisfied that they have a mutual commitment to a shared life together as man and wife.

16. The Tribunal has considered the 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.

17. The parties operate a joint bank account where their wages are deposited and daily transactions, that are not conducted in cash, show what one would expect from a shared household. They have provided statements from that account from 2018 to 2014. Their evidence at the hearing in relation to their respective financial positions was consistent.

18. Since 2020 they have lived together in a granny flat at the back of the sponsor’s daughter’s investment property. They pay no rent or utilities in return for upkeep of both properties and the gardens. Both are on low incomes and work part time and casually. The granny flat shares the same address, number 44, as the main house which has been tenanted by the same person since they moved there in 2020. This person ensures whatever mail they receive at their street address is passed on to them.

19. The applicant sought the sponsor’s advice in relation to a significant sum of money that she was considering using to pay for her mother’s hospitalisation costs in China and they talked openly about the other’s financial position. They clearly saw what resources they had as shared.

20. The Tribunal is satisfied that the financial aspects of the parties’ relationship supports a finding that they have a genuine and ongoing marriage and that they do not live separately and apart.

21. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

22. The parties work part time or casually and spend a lot of time at home where the applicant has a kitchen garden growing vegetable. The sponsor takes care of maintenance of the grounds and whatever is required at the investment property he helps maintain for his daughter. They have no joint children. They have lived together for over six years.

23. The Tribunal is satisfied that the nature of the couple’s household supports a finding that they have a genuine and ongoing marriage and do not live separately and apart.

24. The Tribunal has considered the 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.

25. They told the Tribunal that they don’t have many friends or socialise very much but prefer to keep to themselves. They present as a married couple to the people in their small circle, including family and are considered a married couple for official purposes, including government services.

26. The applicant’s employer and neighbour have provided statements detailing their interactions with the couple, identifying them as a harmonious couple whom they witness always helping each other.

27. The Tribunal is satisfied that the social aspects of the couple’s relationship supports a finding that they have a mutual commitment to a shared life together to the exclusion of all others. 

28. The Tribunal has considered the 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.

29. The Tribunal notes the significant age difference between the two parties, however at the hearing the couple provided consistent evidence about the inception and development of their relationship including the multiple proposals from the sponsor to the applicant with the final one being accepted in December 2017. The sponsor recognises the character of the applicant and she in turn is grateful for his understanding, maturity and patience.

30. The couple have been married and living together now for over six years. They appear to have a genuine bond. Both became distraught at the hearing when the Tribunal asked the applicant what she would do if she had to return to China.  The sponsor has diabetes and high blood pressure and told the Tribunal that the applicant takes care of him an makes sure he eats properly and takes his medicine. He said that his wife is the reason that he is taking better care of himself and worries what would happen if she wasn’t with him.

31. The sponsor has been here for ten years, and his only child is resident here. They appear to rely on each other as well. The sponsor told the Tribunal that if theirs was not a genuine marriage it would not have lasted over six years.

32. The Tribunal is satisfied that the nature f the couple’s commitment to each other supports a finding that they have a genuine and long-term marriage and that they live together.

    CONCLUSION

33. 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.

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

35. 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

36. 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(2)(a) of Schedule 2 to the Regulations

    ·cl 820.221(1)(a) of Schedule 2 to the Regulations

    Ann Duffield
    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).