Zhong (Migration)

This matter concerned an appeal by a visa applicant against the Tribunal's decision to affirm the refusal of a Partner (Provisional) (Class UF) visa. The applicant, a 50-year-old female from China, sought to be granted a visa as the spouse of an 85-year-old Australian citizen. The sponsor, who had been widowed in 2016, met the applicant via video chat, and they married in March 2018. The sponsor resided with his son and family, sharing household expenses, while the applicant lived in China with her daughter.

The primary legal issue before the Tribunal was whether the parties met the requirements for a "spouse relationship" as defined by section 5F of the Migration Act 1958 (Cth). This definition requires that the parties be validly married, have a mutual commitment to a shared life to the exclusion of others, that the relationship be genuine and continuing, and that they live together or do not live separately and apart on a permanent basis. The Tribunal was required to consider all the circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A of the Migration Regulations 1994.

The Tribunal acknowledged the parties were validly married but found that, after considering the totality of the evidence, the requirements for a spouse relationship were not met at the time of the decision. The Tribunal took into account the parties' mature ages, previous long-term relationships, and adult children. Crucially, the sponsor was 85 years old, frail, and residing in institutional care, while the applicant lived in China. The Tribunal noted the limited evidence of shared finances, the pre-nuptial agreement indicating the applicant had no claim over the sponsor's property, and the limited social interaction and communication between the parties. The Tribunal concluded that, given these circumstances, the parties did not demonstrate a mutual commitment to a shared life as a married couple to the exclusion of all others, nor did they live together or not live separately and apart on a permanent basis.

Consequently, the Tribunal affirmed the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas, finding that they did not satisfy the criteria for the grant of the visa.