Zhao (Migration)

[2021] AATA 5494

Zhao (Migration) [2021] AATA 5494 (10 December 2021)

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – at the time of application the applicant was the spouse of an Australian permanent resident – parties validly married – genuine married relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cl 820.211

STATEMENT OF DECISION AND REASONS

This is a statement in respect to a review, decision, and reasons in case 1816795, departmental reference BCC2016/465998, made on 10 December 2021 at 3:00pm in Melbourne by Member N. McGowan.

The Tribunal considered the circumstances of the parties as set out in r.1.15A(3) in forming an opinion as to the matters in s.5F(a)-(d). The evidentiary basis for the Tribunal’s findings is the oral evidence provided at hearing by the parties and the documentary evidence in the department and Tribunal files. The Tribunal found the parties’ oral evidence to be spontaneous and candid throughout the hearing, and therefore credible and reliable.

The applicant Yue Zhao applied for the subclass 820/801 partner visas on 31 January 2016 based on her married relationship with her Australian permanent resident sponsor Mr Wei Sin Sia. A delegate for the Minister refused to grant the visas on 31 May 2018.

In respect to the parties’ relationship, the Tribunal notes the applicant and sponsor married on 11 November 2015 and have provided valid evidence of such. Meaningfully, more documentary evidence has been provided to this Tribunal that was not previously provided to the Minister’s delegate at the time of the refusal decision. Further to the Act, the new evidence will be provided by this Tribunal to the Secretary of the Department.

Critically in this matter, the additional evidence speaks to the continued married relationship of the parties: including WILL particulars; insurance details (health); financial information (joint bank account); evidence of combined living arrangements - including reference to their pet dog; evidence of joint travel and attendance at social gatherings together; evidence of shared utilities; and, evidence of shared/joint taxation arrangements (including several other aspects such as vehicle registration, and digital chat history/records). Importantly, the parties have outlined their present circumstances, and addressed the delegate’s concerns in an articulate and responsive statement they have provided this Tribunal in support of their claims, which includes discussion of the sponsor’s work as a real estate agent and explains the applicant’s inability to work due to visa restrictions and the covid pandemic.

The Tribunal discussed with the parties’ their relationship and plans for their future. It also discussed their social activities, nature of their present household, and more broadly their commitment to one another.

From all the evidence, the Tribunal is satisfied that the parties meet the requirements of s.5F(2)(a)-(d) for a married relationship, and therefore satisfy the definition of ‘spouse’ contained in s.5F of the Migration Act.

Further to the above, the Tribunal is satisfied that at the time of application the applicant was the spouse of an Australian permanent resident, and that she was sponsored by him.

There is no evidence before the Tribunal which indicates that the sponsor is prohibited from being a sponsoring partner under cl.820.211(2B). Accordingly, the review applicant meets the requirements of cl.820.211(2)(a) and (c).

For the reasons above, the Tribunal is satisfied that at the time of application the review applicant meets the requirements of cl.820.211(2). Further, as the applicant continues to meet the criteria in cl.820.211(2), the applicant therefore also meets cl.820.221 at the time of decision.

Given all the above, the appropriate course is to remit the applications for the visas to the minister to consider the remaining criteria for a subclass 820 visa.

END