Zhao (Migration)

[2024] AATA 2442

Zhao (Migration) [2024] AATA 2442 (28 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peng Zhao

REPRESENTATIVE:  Ms Amy Lee (MARN: 0215803)

CASE NUMBER:  2214702

HOME AFFAIRS REFERENCE(S):          BCC2020/1715860

MEMBER:Wan Shum

DATE:28 May 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(2)(a) of Schedule 2 to the Regulations

Statement made on 28 May 2024 at 12:11pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – validly married – a child of the relationship – financial aspects of their relationship are indicative of a couple in a spousal relationship – have been living together – social aspects of the relationship are consistent with a married relationship – couple had a mutual commitment to a shared life to the exclusion of all others – decision under review remitted          

LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, r 1.15, 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 a Partner (Temporary) (Class UK) visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa on 10 June 2020 based on his claim to be the partner of Mrs Yi Zhao. At that time, Class UK contained Subclass 820 (Partner) and Class BS contained Subclass 801 (Partner).

3. The delegate refused to grant the Subclass 820 visa as the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor, as defined under the Act. The Subclass 801 visa was also refused as he was not the holder of a Subclass 820 visa and did not meet the alternative criteria.

4. The applicant sought review of the decision to refuse to grant the Subclass 820 visa and was represented in relation to the review.

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

   BACKGROUND

6. The applicant is a national of the People’s Republic of China born in December 1975. The applicant came to Australia in July 2007 holding a student visa. He was granted further student visas and has remained onshore since then.

7. In June 2020 he made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas and was sponsored by Mrs Yi Zhao.

8. In order to be granted the Partner (Temporary) (Class UK) visa, the applicant must satisfy the applicable visa criteria set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations) which includes cl 820.211. In this matter, the delegate found that the applicant did not satisfy clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations.

9. These criteria relevantly require that the applicant is the spouse or de facto partner of the sponsor, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen at time of application and at time of decision respectively. In the present case, the applicant claims to be the spouse of Mrs Yi Zhao, who is an Australian citizen by grant. She was born in China in July 1989 and first came to Australia in 2011. For the purposes of this application, she is the sponsor.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are spouses

10. ‘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). 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?

11. The parties provided a copy of a marriage certificate which reflects that the marriage took place on 23 May 2020 and was registered with the NSW Registry of Births, Deaths and Marriages on 28 May 2020.

12. There is no evidence before the Tribunal that the marriage with the sponsor is not a valid marriage and the Tribunal finds that 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?

13. In determining whether the remaining requirements of s 5F are met, the Tribunal has carefully considered the evidence presented in respect of each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2) and set out its findings below.

    Financial aspects of the relationship

14. The parties have a joint bank account with National Australia Bank with account ending #5482. The statements provided show that the account was opened on 12 March 2020 and reflect that there have been regular transfers of money into this account attributable to the applicant since that time. There are also transfers from the sponsor, although these appear to be as and when required. The transactions appearing on the statements reflect that the joint account is used for payment of private health insurance with monthly payments to BUPA and for shopping. The applicant has provided copies of statements for his individual account and they have set up an account for their child, who is not yet 2 years of age, which has a small amount of money at present. The energy bills and mobile phone bills appear to be paid from the visa applicant’s account.

15. In respect of employment, the applicant explained in his personal statement provided on review that he works full-time while the sponsor takes care of their son. This is consistent with their reported incomes in the past two income years, noting that the applicant’s income was higher than the sponsor’s. Both the applicant and sponsor’s tax returns reflect that each of them had declared their main income through operating separate businesses and have described their main business as ‘courier pick-up and delivery services’. Both their occupations are recorded on the birth certificate of their child as ‘courier’.

16. In the Tribunal’s view, the evidence reflects that the parties’ financial circumstances are consistent with their claim to be in a married relationship.

    Nature of the household 

17. In a statement provided from their landlord for the unit at Oxford Street, Epping where they claim to have been living together, it is stated that the parties began renting the premises from 1 March 2020 to date. It appears based on this statement and the rental agreements that rental payments are weekly and made in cash.

18. They have provided typed ‘rental agreements’ which appear to have been produced upon request. Nevertheless, the Tribunal notes that the Epping address has appeared on various documents and correspondence addressed to each separately and together since at least May 2020 and the Tribunal is prepared to accept that they have lived at this address together since March 2020.

19. There is a child of the relationship who was born on 26 July 2022. It appears that the sponsor had fallen pregnant in late 2020 but this pregnancy was non-viable. According to the information provided to the Department, the sponsor was examined by her GP on 11 November 2020 and had early pregnancy at that date but the discharge referral note from Royal North Shore Hospital on 18 December 2020 indicates that she was diagnosed as having a ‘molar pregnancy’ which appears to have led to a miscarriage.

20. There is evidence that the applicant and sponsor have provided the same address to both private and government institutions since 2020 onwards. The evidence reflects that they have lived together as a couple since March 2020.

    Social aspects of the relationship

21. The parties claim that they first met in 2017 at a birthday party and were introduced to each other through a common friend. They started talking and exchanged numbers and later in June 2017, they had their first date meeting at Town Hall in Sydney. There are photographs of the parties together with their families and others in Australia and photographs with their baby.

22. The applicant’s brother and sponsor’s mother have provided Form 888s declaring that the parties are in a genuine relationship and setting out details about their respective knowledge of the development of the relationship.

23. In respect of joint activities, they have provided photographs which show the couple sharing the milestones of their baby with others, birthday celebrations and Chinese New Year gatherings and a hotel booking at Camden Valley.

24. The evidence reflects that the parties have represented themselves to their family and other people as being married to each other.

    Nature of persons' commitment to each other

25. The parties claim that they had initially met in 2017 and began dating. They began living together in March 2020 and have been married for 4 years now and have a child together who is nearly two years old. The evidence reflects that the parties are committed to each other as husband and wife.

    Other circumstances of the relationship

26. The applicant’s statement provided on review addresses the insufficiency of their evidence and explained that the parties were not informed that additional information had been requested on 3 separate occasions by their former representative. On review, screenshots of a series of WhatsApp messages between the sponsor and “Dixon Yapp”, their former representative, from October 2021 till January 2023 were provided which does include numerous messages in respect of the types of information the sponsor was asked by the former representative to provide, which includes evidence of her miscarriage and her subsequent pregnancy. The documents presented of this accompanied a submission seeking waiver of the Schedule 3 criteria as the applicant was the holder of a bridging visa at the time of application, connected to his lodgement of a Remaining Relative (Subclass 115) visa in Australia. The Tribunal has not proceeded to assess whether the Schedule 3 criteria should be waived in this case.

    Conclusion

27. The Tribunal has had the benefit of additional information on review and accepts that the parties are committed to each other and they see their relationship as long-term. The Tribunal finds that they have a mutual commitment to shared life as husband and wife to the exclusion of others; are in a genuine and continuing relationship; and that they live together and do not live separately and apart on a permanent basis. The Tribunal is of the view that the information supports a conclusion they had committed to each as a couple prior to the visa application being made.

28. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) are met both at the time of application and at the time of this decision. As the Tribunal has not considered whether the Schedule 3 criteria should be waived in this case, the Tribunal’s findings are limited to being satisfied that the requirements of cl 820.211(2)(a) are met. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa including whether the Schedule 3 criteria should be waived.

    DECISION

29. 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

    Wan Shum
    Member