Zhong (Migration)

Zhong (Migration) [2023] AATA 3827 (6 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr You Zhong
VISA APPLICANTS: Ms Yuping Feng
Miss Wan Murong

REPRESENTATIVE:  Mr Hua He (MARN: 1572790)
CASE NUMBER:  2006368
DIBP REFERENCE(S):  BCC2018/2845534
MEMBER:Meena Sripathy
DATE:6 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 06 November 2023 at 9:04am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – mature aged couple – both had a previous marriage – sponsor’s age and frailty – residing in institutional aged care – nature of the household – limited time spent together – financial aspects – self-supporting – pre-nuptial agreement – social aspects – qualified support from sponsor’s daughter – limited communication by phone – nature of the commitment – ‘live together or do not live separately and apart on a permanent basis’ – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.221, 309.321
CASES
He v MIBP [2017] FCAFC 206
SZOXP v MIBP [2015] FCAFC 69
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 January 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) applied for the visa on 30 July 2018 on the basis of their relationship with their sponsor, the review applicant. The second named visa applicant is her daughter, and applied for the visa as a member of her family unit. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 or cl.309.221 because the delegate was not satisfied the relationship between the primary visa applicant and sponsor meets the definition of spouse in s5F of the Act, taking into account all the circumstances of the relationship including the matters set out in r.1.15A(3).
The sponsor applied for review of the decision to the Tribunal.
The review applicant appeared by video hearing before the Tribunal on 18 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant. The review applicant was represented in relation to the review.
The issue in the present case is whether the visa applicant is the spouse of the sponsoring partner, the review applicant, within the meaning of that term in the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicant is a 50 year old female from Guangdong Province, China. Her daughter was included in the application as a secondary visa applicant. She declares one previous relationship, being a marriage to Mr Murong Rongxuan from 1988 to August 2011, from which there was one child, who is included in the application. The sponsor is an 85 year old, Chinese born Australian citizen. He declared one previous relationship, a marriage to Huang Guizen from 1968 which ended in her death in 2016. There were two children from this relationship, born in 1970 and 1973 who reside in Australia. The parties indicate that they met initially by video chat and then in person on 27 May 2017. The sponsor returned to China and they married on 5 March 2018.
The following information was provided in the application forms about the circumstances of the relationship: the sponsor lives in a 4 bedroom house with his son and his family and shares bills with his family. The sponsor’s wife died in 2016 and he became lonely and wanted to find a woman who was younger and was willing to look after him as he gets older. A friend introduced him to the visa applicant and they met over video chat. Both felt they had similar views and life opinions and were happy and understood each other’s conditions. The sponsor’s son suffers from mental illness and the visa applicant supports the sponsor by helping him to think differently about this. The visa applicant understood the house would be left to his son but she was permitted to live there and she is willing to work and help the family.
Details of the sponsor’s daughter and son in law were provided as supporting witnesses in the application form, however no written statements or statutory declarations (Form 888) from them appear on file.
The following documents in support of the relationship were included with the application: certificate of title and rates notice in sponsor’s name for a property in Granville; phone records for periods June – December 2017 and January, March – April 2018; visa applicant’s divorce certificate; visa applicant and sponsor’s marriage certificate; visa applicant’s ID card; visa applicant’s household register; translation and copy of a pre-nuptial property agreement between the visa applicant and sponsor dated 6 March 2018 stating, among other clauses, that the sponsor’s real property in Australia has already been gifted to his son and the visa applicant has no claim over it; the visa applicant agrees to waive any rights obtained upon marriage under local laws, although she is given the right to reside there until her death; birth and residence document relating to the secondary visa applicant; various photos, including of the parties celebration the sponsor’s 80^th birthday and with other family members; receipts for parcels sent to visa applicant by sponsor ; evidence of sponsor’s flight itinerary in January – March 2018 and Chinese visas.
On 3 September and again on 15 October 2019 the Department requested further evidence in support of the relationship from the visa applicant. As at the time of the delegate’s decision in January 2020, no further evidence was received. The delegate considered the evidence before the Department to that time and concluded that they were not satisfied that the applicant and sponsor were in a spouse relationship.
Evidence before the Tribunal
The sponsor applied for review of the decision to the Tribunal on 30 March 2020. No further evidence was submitted with the review application.
On 26 April 2023 the review applicant was invited to provide further and updated supporting evidence of the relationship. On 10 May 2023 the review applicant’s representative requested an extension of time to provide further evidence on the basis of the review applicant’s recent discharge from hospital and attached medical records in support of the request. An extension of time to provide information was provided to 24 May 2023.
Also submitted on 10 May 2023:
·copies of the visa applicant’s divorce certificate (untranslated) and divorce agreement (including translation) ;
·phone bills for periods in 2017-2018 (as provided to Department) and further periods in September- October 2018, and possibly 2019 (this is not clear);
·copy and translation of pre-nuptial agreement previously submitted; copy of review applicant’s will dated 22 August 2017;
·single status certificate for review applicant;
·evidence of joint travel, including photos of the couple and with others, receipts and travel tickets for trips in 2017, 2018 and 2019;
·copies of receipts of parcels sent by review applicant to visa applicant.
·a Notice of Payment Due for a Golden Age insurance police dated 8 August 2014 (not clear what relevance to this application).
On 24 May 2023 the Tribunal received:
·Statutory Declaration Form 888 by Liyang GOU dated 22 May 2023, known to the review applicant since 2015, who has met the visa applicant in China in May 2018, who attests to the relationship.
·Statement by Liang Yuzhen dated 21 May 2023, declaring that she met the visa applicant in 2009, before she immigrated to Australia in 2010 and considers the visa applicant to be her closest and dearest friend. She met the review applicant in Australia in 2013. The declarant introduced the parties to each other and attests to the genuine relationship.
·Support letter dated 22 May 2023 from Royal North Shore Hospital (RNSH) Intensive Care Unit relating to the admission of the review applicant to RNHS on 19 May 2023 and where he remained in a serious condition following a fall and supporting the request of the visa applicant to travel from China to support her husband.
Tribunal hearing 18 September 2023
The Tribunal took oral evidence from the review applicant, who advised that he is now residing in a nursing home. He said he had a fall earlier this year and following a stay in hospital he was discharged to home. He then had another fall and returned to hospital. Following this he was placed in a nursing home on the basis that the falls had seriously affected his mobility and he was unable to walk independently, or even hold a mobile phone. When asked what nursing home he was at, he said he does not know. His daughter arranged it all. She is not here today because she is presently in China with her family to visit her mother in law who is critically ill. The applicant said his daughter also initially arranged this application but now she does not support it.
The Tribunal asked the applicant if he understands whether his stay in the nursing home is permanent. He said his daughter told him he now has to stay in the nursing home because there is no one to care for him. When he told her that he will apply for his wife to come here to care for him she told him that it will not be approved. He repeated that she does not support his wife coming here any more.
The Tribunal asked where he lived before the nursing home. He said he lived at the home he owns in Granville with his son, daughter in law and two grandchildren. His daughter is married and has 6 children and lives separately. He lived at this address with his late wife until she passed away in 2016.
The Tribunal asked how he came to meet and marry the visa applicant. He said after his wife’s death he was very lonely and unable to sleep. He would go to church every day at 7pm. He met a woman there, Ms Liang, who suggested to introduce him to her friend in Guangzhou. She suggested he take some products over to her in China and meet her, so he did. He went there and stayed with his sister and they met and she took him around. After that he went there three times.
The Tribunal asked what his children thought about this. He said his son has mental health issues since his marriage. His daughter was against the marriage. She told him that this woman would take him for a ride. But he wanted someone to take care of him. The review applicant said after the first trip, his daughter took his passport away from him. She returned it after his brother in law told her that she cannot do this, and explained that he just wanted companionship. The review applicant travelled there again in 2018 and 2019.
They married in March 2018. The review applicant told the Tribunal that his daughter came with him and met the visa applicant but she did not get along very well. When asked if she attended the marriage, he said she did and she arranged it all. The visa applicant in her evidence gave different information. She said the daughter was present in China at that time, and arranged for the pre nuptial agreement to be signed but she did not attend the marriage celebration because she had to return to Australia for her child’s education.
The Tribunal asked the review applicant about the visa applicant’s circumstances. He said she lives in a small place, it is very expensive. When he goes there she rents him another place, because it is more convenient for him. He said she is retired but because she has expenses to pay she still works. Her daughter is now working, so she will not migrate to Australia with her mother.
The Tribunal asked whether they have sent each other any money since the marriage. He said they have not, they each support themselves. He said he told Centrelink that he married and since then they reduced his payment. The Tribunal invited him to provide evidence of this.
The Tribunal noted that he has not visited her since 2019 and asked why not. He said after this COVID happened. The Tribunal acknowledged this but noted that they have spent very little time together physically since marriage, in effect only three months in 2018 and one month in 2019 and now he resides in a nursing home. He said he makes frequent phone calls to her, though she does not ring him because it is expensive. But after COVID and then his falls and hospitalisations, he has not been in contact very often. When asked what support she has given him in this period he said she comforted him and told him not to worry and look after himself. He told her he is in a nursing home now. She told him that if she comes she will take him home and look after him.
The Tribunal asked what his plan is for the future. He said he wants to leave this place and live with his wife in his property at Granville. The Tribunal asked him what if his family do not agree to that. He said it is his home and if they don’t support him then he will ask them to move out. He has enough money to support the visa applicant and himself. The Tribunal asked about the pre-nuptial agreement and whether he was aware of and agreed to it. He said he is not sure but if his daughter or son take him to court, he does not believe they can evict him because the property belongs to him. The review applicant said he does not know what others think, but he really believes that he and his wife can live together and she will take care of him if she is allowed to come.
The Tribunal asked him why he believes she would look after him if she came here given that his situation has changed and he requires a lot of care and they have really spent very little time together to date. He said his first obstacle is his daughter. People told him that it was his mistake for giving her authority over him. The Tribunal asked how he can be sure his wife does not just want to come here for the visa. He said his marriage is real and genuine. He hired a lawyer for the application and has paid money for that.
The Tribunal addressed the representative who was present at the hearing, noting that very little evidence to support the ongoing relationship has been provided. The representative explained that it has been challenging to get evidence, particularly because of the lack of support from the review applicant’s family, and daughter in particular, for example, he has been unable to obtain copies of the phone records from her.
Evidence from visa applicant
The visa applicant gave evidence by video link. She confirmed her address where she has been living for the last two and a half years, and where she lives with her cousin, cousin’s daughter and her own daughter. This apartment belongs to her cousin. Before that she lived at various rental properties since she divorced her ex husband in 2011. She confirmed the address she provided in the application was the address she lived with her ex husband, because this was the address on her ID document, but she had already left that address. She confirmed that she is retired but she works now at a warehouse. Her daughter turned 23 years old and she is now working. The Tribunal explained to her that given her age and employment she would not meet the criteria now, and she indicated that she understood this.
The Tribunal asked how she came to meet and marry the review applicant. She said they were introduced by Ms Liang and had a number of phone calls at first. He came to meet her in May 2017 and she found him to be a humble and honest person. She described an interaction with him during his visit, in June 2017. She received a phone call from her daughter’s school and he immediately helped her to take a taxi and go to the school. She was very impressed by how caring he was. The visa applicant confirmed that the applicant travelled with his daughter and her children on that visit but he stayed with his sister and they stayed elsewhere. She met his daughter, as well as his sister and brother. The visa applicant confirmed that at first his daughter was not supportive of the relationship because she was afraid that she would take advantage of her father. The visa applicant pledged that she would not take anything from him and that she would take care of him. The Tribunal asked whose idea the pre-nuptial agreement was. She said it was her suggestion. She asked the daughter to arrange a lawyer and she agreed to pay for it. She told her she just wants companionship to the end of his life. The Tribunal asked who attended the wedding. She said his brother and sister attended and other relatives but not his daughter, as she returned to Australia for her daughter’s school before the celebration on 10 March 2018. From her side, her mother, aunties and factory workers attended.
The visa applicant confirmed that mostly they pay their own expenses, but he has sent small amounts to her from time to time. When he visits she arranges for him to stay in a hotel. When asked why, she said her place is very small and also there are stairs to access it and no TV and it would be difficult for him because she has to work. So she arranges a place that is more comfortable. When asked if she stays with him, the visa applicant said she stays on her rest days. When she has holidays they travelled to places together. She took him to see the terracotta warriors in Shaanxi, to Beijing and to Hainan Island.
The Tribunal asked who she has told about the relationship. She said she has told her mother, aunties, siblings and they support it. Some of her fellow workers advised her against it because of his age. The Tribunal asked how she supports him. She said she will try and look after him because he is a good person. But he is in a very bad way now. He cannot even hold a mobile phone. They used to speak on the phone twice a week but she has not spoken to him for about 6 months now because he has no ability to hold a phone and has to rely on his daughter to organise a Facetime with her. Since the second fall he was in ICU and she has not spoken to him. This was around March. The visa applicant said that as his wife she would look after him. Now he is only lying in bed and cannot move or walk. His situation is very sad now.
The Tribunal asked her given his situation and age and the limited time they have spent together, why would she pursue this relationship. She said she feels he was good to her and she should look after him. He is in trouble now and needs her help. She cannot leave him like this. When asked what she gets from this, she said that he cannot provide her with anything, no money or assets but they married and she pledged to him to live the rest of their lives together so she would like to do that. When put to her that his children don’t appear to support the relationship and he is now in a nursing him so what would she do if they don’t want her to live in his house. She said she had a Facetime with his daughter and she told her that she can stay in his room. She understands the son has his own problems but the daughter is in charge.
The Tribunal put to the visa applicant that it may have concerns that she is pursuing the application for the visa and not to be in a relationship with the review applicant and invited her comment. She said visa or no visa, she just wants to visit and care for him. When he was in hospital earlier this year she applied for a Visitor visa but was refused. Because of COVID they have been unable to see each other for a long time. The visa applicant reiterated she only wants to come here to care for him and she does not need to come here for another reason or benefits. She gets benefits in China. She wants to take the review applicant out of the nursing home back to his home and care for him and cook for him. Now he has a language barrier and he does not like the food there. She would be happy for a tourist visa to do that. The Tribunal explained it is only considering the Partner visa in this review.

The representative requested additional time to provide further evidence to address issues arising from the hearing.
On 20 September the representative requested additional time to 10 October 2023 for the parties to talk to the applicant’s daughter to get her support and are also gathering evidence of the applicant’s authority to decide where he lives and whether he can leave the nursing home. The Tribunal agreed to the requested additional time. Later that same day, the representative advised that the applicant had been transferred to hospital from the nursing home and this may affect their ability to provide the information.
On 20 September 2023 the Tribunal wrote to the applicant and invited him to provide evidence and/or submission addressing the following :
·the review applicant’s medical conditions, including his physical and
mental (cognitive) state;
·his current residential circumstances including where he is living at this time and whether it is a permanent or temporary arrangement;
·information relating to the situation with his children in Australia including their involvement and role in his care and decision making authority (if any)
·support letters from his treating health professional or a social worker familiar with his circumstances;
·evidence of contact between the review applicant and visa applicant prior to and since his hospitalisations;
·any other evidence or submissions addressing the issues arising in the review.
On 10 October 2023 the Tribunal received a submission dated 10 October 2023 from the representative, attaching a statement and translation from the visa applicant, statement from the review applicant’s daughter and a psychogeriatric assessment scale report from the nursing home.
The representative explains that the review applicant’s daughter wrote and signed the written statement after she met with the visa applicant on 21 September 2023 in China. However, when asked afterwards to present this in a Statutory Declaration she refused after she visited her father. The representative refers to the psychogeriatric assessment scale report to submit that it indicates no or minimal impairment and relies on this for the issue of the applicant’s authority to stay or leave the nursing home. Even if he has no authority it is submitted that proper arrangements can be made after the visa applicant arrives in Australia. While both parties want the review applicant to live with the visa applicant in his home, it is also not uncommon for one spouse to live at home and the other in a nursing home and the visa applicant would visit him there daily.
The representative submits that the circumstances of the lack of support for the application from the review applicant’s daughter and the review applicant’s limited mobility should be taken into consideration in understanding why phone records of their contact, a statutory declaration from him, and Centrelink records cannot be obtained. The representative makes submissions addressing the r. 1.15A factors in the circumstances of the particular case.
On 3 November an officer of the Tribunal contacted the representative to enquire whether the review applicant intended to provide any further evidence. The representative advised the Tribunal no further evidence will be provided.
CONSIDERATION
Whether the parties are in a spouse or de facto relationship
Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.
‘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).
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the Tribunal accepts 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?
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 visa applicant’s and review applicant’s 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.
For the following reasons the Tribunal is not satisfied, after careful consideration of the totality of evidence and circumstances of the relationship, that the requirements for a spouse relationship are met at time of decision.
In reaching this conclusion, the Tribunal accepts and has taken into consideration that the the relationship should be assessed in the context of the particular circumstances of the parties. In this case, the Tribunal has taken into account that the parties are a mature aged couple, who both previously had long term relationships and have adult children of those relationships. The review applicant is 85 years of age and currently of frail circumstances, and is residing, since March 2023, in institutional care in a hospital or nursing home setting in Sydney. The visa applicant is retired but still working, and lives with her cousin and daughter in an apartment in Guangzhou, China. These circumstances are relevant to the consideration of the matters specified in r.1.15A.
Nature of the household
The parties live, and have always lived, in different countries and therefore there is no evidence of any history of shared living arrangements or shared housework. Their children are all adults so there is no joint responsibility for care and support of children.
The Tribunal has also considered in this case the limited time they have been in the same country over the past six and a half years since their marriage, and their living arrangements in those periods. Since 2017 when they first met they have spent a total of around 4 months together. They evidence before the Tribunal, given consistently by both of them, is that the review applicant did not stay in the visa applicant’s apartment during those visits because it was not appropriately accessible for him. The visa applicant arranged accommodation for him at a hotel and stayed with him there on her rest days. The review applicant last visited her in China in 2019, and there have been no further visits by either of them since then. The circumstances of the pandemic was cited by both of them as the main reason for this. The Tribunal has also considered the visa applicant’s explanation in her post hearing statement that she was unable to apply to visit the review applicant in Australia due to her employment in the Chinese public security system and need to maintain her employment for the sake of her daughter’s education, and later because of the COVID 19 lockdowns. The Tribunal accepts she applied for a visitor visa in May 2023 which was refused.
While the Tribunal acknowledges, and accepts as reasonable, the explanations provided for the limited time they have spent together, it finds they have spent very little time together in the six and a half years since they first met in person in May 2017 and have not been physically together since December 2019. During this time the review applicant’s circumstances and independence has deteriorated substantially such that he is now living in institutional care. Given the minimal amount of time spent together, not ever having lived together, and significant period of time since they were last together in person, together with the review applicant’s current living situation the Tribunal is not satisfied that the household aspects of the relationship supports the existence of a spouse relationship at time of decision.
Financial aspects of the relationship
Regarding the financial aspects of the relationship, the Tribunal acknowledges that the review applicant and visa applicant are of mature age, they have come to the relationship after long term marriages and they each have their own adult children. They were previously, and continue now to be, self-supporting, and they have their own assets. In this context, the Tribunal accepts that they have no joint assets or joint liabilities, and there is no evidence that they pool financial resources or share household expenses, and it would not be reasonable to expect such evidence given this background and the fact that they live in different countries. There is evidence before the Tribunal that the visa applicant signed a ‘pre-nuptial property agreement’ around the time of the marriage, acknowledging the sponsor’s real property in Australia has already been gifted to his son and agreeing to make no claim over it. At hearing the visa applicant confirmed she suggested and initiated this agreement to demonstrate to the review applicant and his children that she was not seeking his money or assets. The Tribunal notes this issue is referred to again in the review applicant’s daughter’s recent statement dated 21 September 2023 specifically as a condition of her qualified support.
The Tribunal finds that there was, at time of application, and is, now, little evidence of financial aspects of the relationship in support of a spouse relationship, but taking their particular circumstances into account, the Tribunal draws no adverse inference from this.
Social aspects of the relationship
Regarding social aspects of the relationship, the Tribunal accepts evidence has been submitted to the Department of various photos of the review applicant and visa applicant in the presence of friends and family during his visits to China and celebrating his 80^th birthday. While their evidence about the presence of his daughter at the wedding was contradictory, the Tribunal accepts she is aware of the relationship noting her involvement in lodging the application and her recent statement. The evidence indicates that his daughter’s support for the relationship has changed over time, and she is still not a strong supporter of the relationship, demonstrated by her reluctance to provide sworn written or oral evidence to the Tribunal, and the qualified support demonstrated in her recent statement. There is no evidence of support from the review applicant’s son and the Tribunal accepts the explanation of this being the concerns of the daughter regarding their father’s property and information referring to the son’s health issues. On the other hand, numerous statements in support were provided from the parties’ friends, Ms Guo Liyang and Ms Liang Yuzhen and Ms Funk Kai Kwai who, the Tribunal notes, were available to give oral evidence.
On this evidence, the Tribunal accepts that the review and visa applicant represent themselves as a married couple. It accepts they were introduced to each other by Ms Liang Yuzhen and that these friends believe the relationship between them to be genuine. The Tribunal also accepts on the oral evidence of the parties that during the review applicant’s past visits to China they travelled together to various places.
However, there have been no visits to each other since 2019, and while they both gave oral evidence to the Tribunal that they have continued to communicate by phone up until this year, there is no documentary evidence to support this or demonstrate the frequency and duration of the contact. At hearing, the evidence of the parties was that they have not been able to communicate since his hospitalisation due to the review applicant’s infirmity. The visa applicant told the Tribunal at hearing that she has not spoken to the review applicant for over 6 months, although in her post hearing statement she contradicted by referring to ‘frequent (about once every three days) phone calls now’. In his oral evidence the review applicant said since he has been in hospital, he has been unable to communicate by phone with the visa applicant without assistance from his daughter and she is no longer supportive of the relationship.
The Tribunal accepts there is evidence of social aspects of the relationship that supports the existence of a spouse relationship. However, it finds that the review and visa applicant have had no visits or joint social activities since 2019 and limited communication by phone particularly since his falls and hospitalisations in March 2023.
Nature of the commitment
The parties first met in person in 2017 and married in March 2018, more than 5 years ago. In that time, they have only been in the same country for periods totalling around 4 months, they did not, during those periods, live together and the last visit by the review applicant was in December 2019, more than 4 years ago. They claim to have maintained communication by phone since then, but very limited evidence in support of this has been provided. Since March 2023 the review applicant has had multiple falls and has been hospitalised. He is now living in a nursing home, and the evidence before the Tribunal indicates that the applicants have had limited communication this year. While the review and visa applicant told the Tribunal in their oral evidence that she provides companionship and emotional support to him, the limited evidence before the Tribunal does not support this claim.
Having regard to the duration of the relationship, relatively short time spent together in the same country and limited evidence of communication, particularly in the past year, the Tribunal is not satisfied that the nature of their commitment supports the existence of an ongoing spouse relationship at time of decision.
Other circumstances
At time of decision the review applicant is residing in institutional aged care. The Tribunal requested further evidence including about his physical, mental and cognitive condition and evidence about who has authority regarding his living and care arrangements, but very limited information about these matters was provided. It has considered the single page document Psychogeriatric Assessment Scale from Garden View Aged Care, which makes reference to various physical and mental health and cognitive impairment conditions and somewhat contradictorily states ‘no or minimal impairment’. The Tribunal acknowledges that it was able to take oral evidence from the review at a video hearing before the Tribunal and he was able to give a generally coherent account of the history of the relationship with the visa applicant and explain why he has been unable to maintain contact in recent times. He was however less coherent and lucid about matters relating to his current health conditions and living and care arrangements. In the absence of any other probative evidence addressing these matters the Tribunal makes no determinative findings relating to his health conditions or care/living arrangements other than what arises from his current circumstances, being that he is living in a nursing home/hospital setting for reasons of his infirmity.
The evidence before the Tribunal indicates the review applicant is dependent on his daughter and she appears to have some authority regarding his situation, however evidence to confirm this has not been provided. A written statement from her dated 21 September 2023 indicating her (conditional) agreement for the visa applicant to reside at the review applicant’s house with her brother’s family was accompanied by advice from the representative that she was unwilling to confirm this in a Statutory Declaration after visiting the review applicant. In light of this reservation, and absence of other evidence to confirm her cooperation and support for the relationship, the Tribunal places little weight on the written statement.
Assessment of the relationship on the totality of the evidence and circumstances
The review applicant’s circumstances have changed substantially since the application was made in July 2018. Above, the Tribunal has considered the evidence before it relating to matters set out in r,.1.15A(3). It accepts that he has been limited in the evidence he can provide because of his age and frailty and his dependency on others at this time, in particular it appears, his daughter. It also accepts that other factors including the COVID pandemic have affected their ability to see each other since 2019, and his advancing age and frailty this past year has led to him now residing in a nursing home.
The Tribunal acknowledges the difficult circumstances the review applicant finds himself in and is mindful of his vulnerability and dependence arising from his age and frailty. It acknowledges his expressed desire for his wife to come to Australia to ‘accompany’ and care for him and that the visa applicant has indicated her desire and will to come to Australia for this purpose.
However, the Tribunal finds that the cumulative assessment of the evidence of the circumstances of the relationship does not support the existence of an ongoing spouse relationship at time of decision. The parties have spent very limited time together in the past 5 years and there is no history of having lived together in a joint household even in those short periods. They have not physically seen each other for almost 4 years. While they represent as married to friends and family, they have not seen each other in person or had any joint social activities since December 2019 and little evidence is before the Tribunal of the frequency and extent of communication they have had since then. Therefore, the Tribunal is not satisfied the evidence before it supports a conclusion that at time of decision, the review and visa applicant have an ongoing genuine and continuing spousal relationship as required by s5F(c).
Given he is now living in a nursing home, and there is no evidence before the Tribunal about whether this living arrangement is a temporary or permanent situation and whether he has authority and can exercise any control over the decision of where he lives, the Tribunal is not satisfied that the review and visa applicant will live together, or not live separately and apart on a permanent basis and therefore it is not satisfied that the requirement of s5F(d) is met.
In reaching this conclusion the Tribunal has considered the representative’s submission that, even if the review applicant does not have authority to determine where he lives, it is possible for one spouse to live at home and the other one to live at a nursing home. In this regard the Tribunal has considered the meaning of the phrase parties ‘live together or do not live separately and apart on a permanent basis’. In SZOXP v v MIBP [2015] FCAFC 69, at [59(1)], the Full Court found that the phrase “live separate and apart” involves both a physical and mental element which are concerned with a husband and wife who are living their lives separate and apart from each other as separate households; the phrase does not require that the parties live in a different home but rather focuses upon whether they have lived their lives separately as separate households (at [59(2)]). On the evidence of all the circumstances of the relationship in this case, the Tribunal is not satisfied that the review applicant and visa applicant will not live separately and apart on a permanent basis, on its assessment of all the circumstances of the relationship as described above.

On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision.
Therefore the first named visa applicant does not meet cl.309.221.
Secondary applicant
As at time of decision the second named visa applicant has turned 23 years of age. On the basis of her age, and the finding above that the primary visa applicant does not satisfy the primary criteria, the Tribunal finds she does not meet cl.309.321.
For the reasons above, the visa applicants do not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Meena Sripathy
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).

[2023] AATA 3827

6 November 2023

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