Zhao (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by a national of the People’s Republic of China, sponsored by Mrs Yi Zhao, an Australian citizen. The delegate had found that the applicant did not satisfy clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994, which require the applicant to be the spouse or de facto partner of the sponsor.

The primary legal issue before the Tribunal was whether the applicant and Mrs Zhao were in a married relationship for the purposes of the Act. This required determining if they were validly married, had a mutual commitment to a shared life to the exclusion of others, were in a genuine and continuing relationship, and lived together or did not live separately and apart on a permanent basis, as stipulated by section 5F of the Migration Act 1958. The Tribunal was also required to consider the financial and social aspects of their relationship, and the nature of their household, in accordance with regulation 1.15A(3).

The Tribunal found that the parties had provided a valid marriage certificate, satisfying section 5F(2)(a). Furthermore, the Tribunal was satisfied that the financial aspects of the relationship, including the operation of a joint bank account used for household expenses and the establishment of an account for their child, indicated a mutual commitment to a shared life. The Tribunal concluded that the requirements of section 5F(2) were met at both the time of application and the time of the decision.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 820.211(2)(a) of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa, including any potential waiver of Schedule 3 criteria.