Zheng (Migration)

[2019] AATA 4633

Zheng (Migration) [2019] AATA 4633 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dingqun Zheng

VISA APPLICANTS:  Ms Xiaofang Xie
Mr Jinrong Liu

CASE NUMBER:  1723124

DIBP REFERENCE(S):  BCC2016/3167819

MEMBER:Peter Smith

DATE:16 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 16 July 2019 at 4:48pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – parties do not have mutual commitment to shared life together to exclusion of all others – relationship not genuine and continuing – evidence appeared to favour interests of primary visa applicant and not joint interests of parties – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A, Schedule 1, Item 1220A, Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

THE APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration (the Minister) on 13 September 2017 to refuse to grant Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

1. Xiaofang Xie (the primary visa applicant), a national of the People’s Republic of China, made a valid application to the Minister on 23 September 2016 for the grant of a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa in which she claimed to be the spouse of an Australian permanent resident, namely the review applicant and her sponsor, Dingqun Zheng. Included also on her application is her son, Jinrong Liu (the secondary visa applicant), born on 21 January 1999.  The secondary visa applicant seeks a Partner (Provisional) (Class UF) visa on the basis of his claim to be a member of a family unit of the primary visa applicant who is also an applicant for a Partner (Provisional) (Class UF) visa. 

1. Item 1220A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations) provides that an application for a Partner (Provisional) (Class UF) visa is made at the same time and place as an application for a Partner (Migrant) (Class BC) visa. The application process involves a two stage process. If an applicant is granted a Partner (Provisional) (Class UF) visa, he or she will be granted a provisional or temporary visa to enter Australia for two years. At the end of the two year period, the relationship is reassessed, and if the Minister is satisfied that the relationship is, amongst other things, genuine and continuing, a permanent Partner (Migrant) (Class BC) visa will be granted.

1. At the time of visa application Schedule 1 to the Regulations provided for a particular class of visa known as the Class UF visa and contained only one subclass: Subclass 309 (Partner (Provisional)). At the time of visa application, Schedule 2 to the Regulations prescribed the criteria to be satisfied for the grant of a subclass 309 (Partner (Provisional)) visa. The criteria for this subclass of visa are set out in Part 309 of Schedule 2 to 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.

1. The Minister’s delegate decided under s.65 of the Act to refuse to grant the primary visa applicant a Partner (Provisional) (Class UF) visa because the primary criteria for it prescribed in clause 309.211 and 309.221 of Schedule 2 to the Regulations had not been satisfied at the time of application and at the time of decision. As the primary visa applicant did not satisfy the primary criteria the application made by the secondary visa applicant was also refused.

1. On 26 September 2017, the review applicant made an application to the Administrative Appeals Tribunal (the Tribunal) for review of the decision made on 13 September 2017 by the Minister’s delegate to refuse to grant Partner (Provisional) (Class UF) visas to each of the visa applicants.  Attached to the application for review is a copy of the Decision Record of the Minister’s delegate dated 13 September 2017 together with her notification letter both of which were sent to the visa applicants at the date of the delegate’s decision.

1. The application for review was heard by the Tribunal on 25 June 2019.  At the hearing the review applicant appeared with his authorised representative, a registered migration agent, and with the assistance of an interpreter in the English and Mandarin languages, gave oral evidence and presented arguments in support of his application.  The primary visa applicant, also with the assistance of the same interpreter, gave oral evidence to the Tribunal by telephone from China.

2. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. In the present case the question for the Tribunal to determine is whether the primary visa applicant is the spouse of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

10.  In considering this question, the Tribunal has had regard to the evidence on the file of the Department of Immigration and Border Protection (the Department) and the further evidence provided to the Tribunal by the review applicant in support of his application for review, and the oral evidence given by the parties at the hearing.

11.  Clauses 309.211 and 309.221 require that at the time the visa application was made, and at the time of this decision, the review 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.

12.  ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

Are the parties validly married?

13.  The review applicant claimed one previous marriage to another person which was solemnized in Australia on 16 March 1981 and dissolved on 18 October 2015.  There is a sealed copy of a Divorce Order on the Department’s file.  The Divorce Order records that on 17 September 2015 an order was made by a Deputy Registrar of the Federal Circuit Court of Australia to dissolve the marriage between the review applicant and his former wife with such order to take effect on 18 October 2015.

14.  The primary visa applicant claimed one previous marriage to another person which was solemnized in China on 15 December 1996 and dissolved by voluntary agreement between the primary visa applicant and her former husband on 13 April 2006.  There is a copy of a translated Divorce Certificate on the Department’s file.  The Divorce Certificate issued by the Ministry of Civil Affairs of the People’s Republic of China records that the marriage between the primary visa applicant and her former husband ended in divorce on 13 April 2006.

15.  If the parties are validly married to each other, they may meet the requirements of a married relationship, but not a de facto relationship.  The parties claim to be validly married to each other.  They claim that they were married to each other at a ceremony in Sydney on 8 December 2015.  On the Department’s file is a sealed copy of a Marriage Certificate dated 10 December 2015.  The Certificate, issued by the Registrar of the New South Wales Births, Deaths and Marriages, certifies that the parties were married to each other on 8 December 2015.

16.  In the absence of any evidence to the contrary, I am satisfied that the parties were validly

married for the purposes of s.5F of the Act.

Evidence from the review applicant

17.  The review applicant, originally from Guangdong Province, China, was born on 25 July 1957.  He is presently 61 years of age.  He works delivering seafood for a restaurant in Hurstville.  It is not a full time job.  He derives an income from his employment.

18.  At the hearing the review applicant told the Tribunal that he currently lives in a house at Hurstville.  He said that the house consists of two kitchens and six bedrooms.  He said that six people rent a bedroom at this house which includes him.  He said that he pays $200 per week in rent.  He said that he does not know the names of any of the other people that live at this house.  He said that the primary visa applicant has also stayed with him at this house. 

19.  The review applicant has two adult daughters from his previous marriage.  Both daughters live in Sydney.   He told the Tribunal due to his divorce with his former wife he has not seen his eldest daughter in ‘years’ and ‘sometimes’ sees his youngest daughter.  She runs a business.   He sets out in details the facts and circumstances leading to the breakdown of his first marriage in one of the statutory declarations he made on 20 February 2019 and provided to the Tribunal on 25 February 2019.

20.  The review applicant told the Tribunal that he has a circle of friends in Sydney however he seldom socialises with them due to work commitments.

21.  The review applicant told the Tribunal that he does not own any real estate and that he and the primary visa applicant do not have any joint liabilities.

22.  The review applicant told the Tribunal that he and the primary visa applicant opened a joint bank account with the ANZ Bank in 2015.  This claim is supported by copies of bank statements the review applicant provided to the Tribunal.  The statements cover the periods 9 November 2018 to 10 January 2019, 10 January 2018 to 9 March 2018, and 10 May 2017 to 10 July 2017.

23.  In his evidence the review applicant claimed that from November 2015 to January 2017 he lived at the primary visa applicant’s Wentworth Point property with the secondary visa applicant.   Records held by the Department show that from 2 November 2015 to 16 March 2018 the secondary visa applicant lived and studied in Australia on a student visa.  The records also show that the contact details of the secondary visa applicant while living in Australia was the Wentworth Point property.  When the secondary visa applicant first arrived and entered Australia he was 16 years of age.  He attended high school while on a student visa.  The review applicant told the Tribunal that the secondary visa applicant returned to China due to health problems.  The review applicant provided translated medical certificates which state that the secondary visa applicant has and continued to suffer from a mental health condition.  This condition appears to relate to ‘family problems’.  He is prescribed medication to assist in the management of his condition.

24.  The review applicant told the Tribunal that when he lived with the secondary visa applicant at the Wentworth Point property from November 2015 to January 2017 he was responsible for the housework including vacuuming, cleaning cooking and the shopping. 

25.  He told the Tribunal that when the primary visa applicant visits she is responsible for the cooking and that they do the shopping together. 

26.  The review applicant claimed in his evidence that he and the secondary visa applicant moved to Burwood when they left the Wentworth Point property in January 2017.   The primary visa applicant’s evidence is that it was closer for the secondary visa applicant to get to school.

27.  The review applicant provided documentary evidence to the Tribunal which shows that on 26 April 2018 the ANZ Bank sent a letter to the review applicant about a request he made to the bank about his superannuation interest with the ANZ Bank.  The letter states:

26 April 2018

Nomination of beneficiary – confirmation

Dear Mr Zheng

Thank you for your request to update your beneficiary details.  Your details have now been updated, as outlined below:

Name	Date of Birth	Percentage of Benefit	Relationship
Xiaofang Xie	16 February 1973	100.00%	Spouse

You may amend or revoke a non-lapsing nomination at any time.

…

28.  The review applicant has provided the Tribunal with a number of documents in support of his application for review including tax invoices issued to him from Optus in respect of his mobile phone account for part of 2017 and most of 2018.  For the year 2017 the tax invoices cover the periods from 1 November 2017 to 30 November 2017, 1 September 2017 to 30 September 2017 and 1 August 2017 to 31 August 2017.  For the year 2018 the tax invoices cover the whole of 2018 save and except for the month of February.  There are no records for the years 2015, 2016 and 2019.

29.  The review applicant claimed that he calls the primary visa applicant so that he can talk to her.  He says that he was a bit busy in 2016 to talk to the primary visa applicant but between 2017 and 2019 the parties talk daily by using WeChat.  In support of this claim the review applicant provided the Tribunal with copies of untranslated WeChat records however those records only cover the period between 2015 and 2016.

30.  The review applicant claimed that he has used Alipay to send money to the secondary visa applicant.  In support of this claim the review applicant has provided the Tribunal with untranslated Alipay records.

31.  When asked by the Tribunal what the party’s plans were if the visa is granted the review applicant said that the primary visa applicant will sell one of her properties in China, look at business opportunities, find employment and study a course in English.  The primary visa applicant gave the same evidence about future plans but added that she would pay off her mortgage. 

Evidence from the primary visa applicant

32.  The primary visa applicant was born in Chaoyang in the Province of Guangdong, China on 16 February 1973.  She is presently 46 years of age. 

33.  At the hearing the primary visa applicant told the Tribunal that she lives alone in a four bedroom house in Nanning City, China.  She told the Tribunal that she has lived at her current home since about 30 April 2016.  She works in a government office.

34.  In support of the application the review applicant provided copies of five remittance receipts from the Bank of China.  On 14 June 2014 the primary visa applicant remitted to the review applicant $5,000 AUD.  On 16 September 2015 an amount of $10,000 was remitted to the review applicant by an unnamed source.  On 30 September 2015 the secondary visa applicant remitted $50,000 AUD to the review applicant.  Also, on 30 September 2015 the primary visa applicant remitted $14,595.84 AUD to the review applicant.  On 6 June 2017 the primary visa applicant remitted $5,000 AUD to the review applicant.

35.  The primary visa applicant told the Tribunal each day after she finishes work she chats to the review applicant.

36.  The primary visa applicant says that when she visits Australia she stays with the review applicant and that she has stayed with him at the review applicant’s current residence in Hurstville.

37.  The primary visa applicant says that when the review applicant’s father passed away earlier this year he only stayed with the primary visa applicant in China for about 10 days.  She told the Tribunal that when she and the review applicant stay together she does the cooking and cleaning so that the review applicant can rest.  They do the shopping together.  She says that the parties like to take walks together after dinner.  She told the Tribunal that when she stays with the review applicant he pays for the day-to-day household expenses and when the review applicant stays with her she pays for the day-to-day household expenses.

38.  The primary visa applicant told the Tribunal that she currently rents out the Wentworth Point property and has done so since about March 2017.

39.  The primary visa applicant has one child arising from her former marriage, namely the secondary visa applicant who is included on the visa application.   She told the Tribunal that she has not seen her former husband for about 10 years.

40.  On 18 December 2013 the primary visa applicant, as sole purchaser, entered into a contract with the owner of the Wentworth Point property.  The purchase price of the Wentworth Point property was $685,000. 

41.  The primary visa applicant purchased the Wentworth Point property by obtaining a line of credit from the ANZ Bank in the amount of $568,000.  There are on file documents and statements issued by the ANZ Bank to the primary visa applicant that show that the mortgage repayments commenced on 4 January 2016.

Are the other requirements for a spouse relationship met?

The financial aspects of the parties’ relationship

42.  In considering the financial aspects of the parties’ relationship, I have had regard to all of the circumstances of the parties’ relationship, including whether the parties have any joint ownership of real estate or other major assets, any joint liabilities of the parties, the extent of any pooling of financial resources, especially in relation to major financial commitments, whether one party in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of day-to-day household expenses.

43.  As the parties live in different countries it is to be expected that they cannot pool or share their financial affairs in any substantial way.

44.  The evidence before the Tribunal is that the parties do not jointly own any real estate or other major assets.  This evidence shows the primary visa applicant to be the sole purchaser of the Wentworth Point property.  Based on this evidence, I am not satisfied that the parties have any joint ownership of real estate or other major assets.

45.  The evidence before the Tribunal does not include evidence that the parties have any joint liabilities.  The review applicant gave oral evidence that he and the primary visa applicant do not have any joint liabilities. Based on this evidence, I am not satisfied that the parties have any joint liabilities.

46.  In respect of the claims made by the parties that the review applicant has been assisting the primary visa applicant meet her monthly mortgage repayments, I am not satisfied that this claim is supported by the bank statements the review applicant has provided to the Tribunal. Firstly, none of the itemised transactions recorded on those statements identify the review applicant as the source of those repayments.  Secondly, none of the itemised transactions on those statements record the deposits made to the primary visa applicant’s account as home loan repayments. 

47.  In respect of whether there is any pooling of financial resources between the parties, especially in relation to major financial commitments, I am satisfied that the parties have a joint bank account.  The review applicant has provided statements for this joint account.  The statements show that both parties are the account holders of a bank account ending in 1002.  However, in my view none of the itemised transactions relate to any shared household expenses in the manner that is commensurate with that of a genuine married couple who have a joint bank account.  I am therefore not satisfied that there is any pooling of financial resources between the parties, especially in relation to major financial commitments.

48.  I am satisfied that there have been transfers of monies between the parties and between the review applicant and the secondary visa applicant.  I give this some weight in my consideration of this factor. 

49.  I am not satisfied on the evidence before the Tribunal that either party owes any legal obligation in respect of the other.

50.  There is evidence before the Tribunal that when the review applicant stays with the primary visa applicant she pays for all the household expenses.  There is evidence before the Tribunal that when the primary visa applicant stays with the review applicant he pays for all of the household expenses. 

51.  There are copies of bank account statements for the joint bank account held by the parties which were provided to the Tribunal by the review applicant however none of the itemised transactions on those statements show the parties sharing expenses associated with a household.  Based on the evidence, I am not satisfied that the parties share day-to-day household expenses.

The nature of the parties’ household  

52.  In considering the nature of the parties’ household, I have had regard to all of the circumstances of the parties’ relationship, including whether the parties have any joint responsibility for the care and support of children, the living arrangements of the parties, and any sharing of the responsibility for housework.

53.  I accept that the review applicant and the secondary visa applicant lived together at the Wentworth Point property from November 2015 to January 2017.  Relevantly, I am satisfied that during this period the review applicant was the secondary visa applicant’s guardian and that the review applicant was responsible for the care and support of the secondary visa applicant who was at that time a minor. I am also satisfied that the review applicant has become close to the secondary visa applicant and that he provided significant care and support to the secondary visa applicant as a guardian.  Based on this evidence I am satisfied that the parties shared in the joint responsibility for the care and support of the secondary visa applicant when during the period November 2015 to March 2018.

54.  There is no evidence before the Tribunal that the parties have any children of their own.

55.  Presently, the parties live in separate households in different countries.  I appreciate that there are practical difficulties for parties in a relationship to establish a shared household when they live in different countries.  I take this into account in my consideration of this factor.

56.  The primary visa applicant gave evidence before the Tribunal that when the review applicant stays with her in China she is responsible for the housework which includes cooking and cleaning.  This is confirmed in the primary visa applicant’s statutory declaration of 20 February 2019.  Based on this evidence I am not satisfied that the parties have shared in the responsibility of the housework when the review applicant has stayed with the primary visa applicant.

57.  The review applicant gave evidence that when the primary visa applicant stays with him and stayed with him and the secondary visa applicant that the primary visa applicant was responsible for the cooking but that they did the shopping together.  Based on this evidence I am satisfied that during the period the review applicant visited the parties have shared in the responsibility of the housework.  Based on this evidence I am satisfied that the parties have shared in the responsibility of the housework when the primary visa applicant has stayed with the review applicant and the review applicant and the secondary visa applicant.

The social aspects of the parties’ relationship

58.  In considering the social aspects of the parties’ relationship, I have had regard to all of the circumstances of the parties’ relationship, including whether the parties represent themselves to other people as being married to each other, the opinion of the persons' friends and acquaintances about the nature of the relationship, and the basis on which the parties plan and undertake joint social activities.

59.  I am satisfied that the parties represent themselves to their friends and family and to others as being a married couple and that their friends and based on those representations, family and friends of the parties see the parties as being in a genuine married relationship. There are copies of a number of photographs of the parties together with friends, wedding guests, and the secondary visa applicant, members of the primary visa applicant’s family and the review applicant’s extended family and others. 

60.  I have considered these photographs in my consideration of the social aspects of the parties’ relationship.  I am satisfied based on these photographs that the parties’ friends and the primary visa applicant’s family, the review applicant’s extended family and others are of the opinion that the parties are in a genuine spouse relationship.  I give these photographs some weight.

61.  I have also considered the evidence given by the parties’ friends by way of statutory declaration in April 2016.  I am satisfied based on the evidence of Mr Chen and Mr Yan that they see the parties’ relationship as being genuine and continuing and I therefore give this evidence weight in my consideration of this factor.

62.  There are copies of photographs on file that show the parties have planned and undertaken social activities together and with friends.  There is also the evidence of Mr Yan in his statutory declaration that he has spent time with the parties on holidays.  Based on the evidence I am satisfied that the parties have planned and undertaken social activities together and with others including friends and family.

The nature of the parties’ commitment to each other

1. In considering the nature of the parties’ commitment to each other, I have had regard to all of the circumstances of the parties’ relationship, including the duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see the relationship as a long-term one.

64.  Based on the evidence of the parties in their statutory declarations including their explanations for making different statements to the delegate about whether they were introduced by a friend or a mutual friend, I am satisfied that the parties have known each other since January 2015.  I am satisfied based on this evidence that the parties met in person in China for the first time in March 2015.  I am also satisfied that the parties were married to each other in Sydney on 8 December 2015 and that this marriage is valid for the purposes of s.5F(2)(a) of the Act.

65.  I note the claims made by each of the parties that they have, since the inception of their relationship, lived together when the review applicant is in China and when the primary visa applicant visits Australia. 

66.  In respect of whether the parties have lived together in China I note the evidence before the Tribunal shows that the review applicant has travelled to China to visit his family and the visa applicants and that he has, based on the photographic evidence, spent time with the visa applicant and their family, the parties have not provided any verifiable evidence that the parties have shared a household in China.

67.  In respect of whether the parties have lived together in Australia I note the evidence before the Tribunal shows that the primary visa applicant has travelled to Australia.  Based on the photographic evidence before the Tribunal I am satisfied that the parties have spent time together in Australia.  However I am not satisfied that the parties have shared a household together in Australia since January 2017 as none of the evidence provided by the review applicant such as joint bank account statements are addressed to the parties at the Hurstville property which is the address that both parties say they share when the primary visa applicant visits the review applicant.  The bank statements and other documents provided to the Tribunal by the review applicant are addressed to the Wentworth Point property however according to the evidence that property has been leased out since March 2017.

68.  There is evidence before the Tribunal that the secondary visa applicant lived at the Wentworth Point property from November 2015 to January 2017.  Based on the evidence given by the review applicant I am satisfied that he lived at the Wentworth Point property with the secondary visa applicant.  This is confirmed by the records held by the Department.  I give this significant weight in my consideration of this factor. 

69.  Although there is no verifiable evidence before the Tribunal to show that the review applicant and the secondary visa applicant lived together with each other at Burwood, I am prepared to accept that they did share a household together after they vacated the Wentworth Point property given that the secondary visa applicant was, according to the Department’s records, still living and studying in Australia under the care of the review applicant up to and including March 2018. 

70.  In respect of the degree of companionship and emotional support that the parties draw from each other, I am satisfied from considering the review applicant’s mobile phone records which he provided to the Tribunal that the parties stay in touch with each other either by telephone or WeChat however based on the evidence provided by the review applicant the telephone contact between the parties is limited to September 2017 to December 2017 and for the majority of 2018 and the WeChat between the parties is limited to 2015 and 2016 none of which are translated.  I give some weight in my consideration of this factor.           

71.  In relation to whether the parties see their relationship as a long term one, I note that the review applicant nominated the primary visa applicant as his beneficiary to receive his superannuation interest in the event of his death.  While this is significant I note that this can easily be changed.  The letter from the ANZ Bank is dated 26 April 2018 which is nearly 2.5 years since the review applicant’s marriage to his former wife was dissolved.  Based on this evidence I am not satisfied that the parties see their relationship as a long-term one.

72.  When asked by the Tribunal at the hearing what their future plans were if the visas were granted the parties’ evidence did not persuade me that the parties see their relationship as a long-term one.  Rather, the evidence that was given seems to be more about the interests of the primary visa applicant and not joint interests of the parties.  Based on this evidence, I am not satisfied that the parties see their relationship as long term one.

CONCLUSION

73.  Based on the evidence above and for the reasons given, I am not satisfied under s.5F(2)((b)-(d) of the Act that the parties have a mutual commitment to a shared life together to the exclusion of all others, that their relationship is genuine and continuing and that they live together on a permanent basis.

74.  On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2)(b)-(d) are met at the time of visa application and at the time of this decision.

75.  Therefore the primary visa applicant does not meet the requirements in cl.309.211 and cl.309.221.

76.  For the reasons above, the primary visa applicant does not satisfy the criteria for the grant of the visa.

77.  As the primary visa applicant does not meet the primary criteria the application made at the same time and place, as combined with, the application made by the secondary visa applicant, the application is refused.

DECISION

78.  The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Peter Smith
Member

ATTACHMENT  - Extract from Migration Regulations 1994

1.15ASpouse

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).