Zhongjie (Migration)

Zhongjie (Migration) [2023] AATA 4622 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Li Zhongjie
VISA APPLICANT:  Mrs Ke Yiqin
REPRESENTATIVE:  Mrs Samia-Marie Baysari (MARN: 1466659)
CASE NUMBER:  1830416
DIBP REFERENCE(S):  BCC2017/2179434
MEMBER:Meena Sripathy
DATE:11 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 11 December 2023 at 11:40am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – have no loans or assets in joint names – applicant still owns his marital property with his ex wife – lack of supporting evidence – no evidence of claimed transfers have been provided – reluctance to disclose his relationship to his daughters – evidence relating to the social aspects of the relationship is minimal – not satisfied that the parties see the relationship as long term – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5F,65, 359, 376
Migration Regulations 1994, r 1.15, Schedule 2, cl 309.211
CASES
He v MIBP [2017] FCAFC 206
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 8 August 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 20 June 2017 on the basis of her relationship with her sponsor, the review applicant. 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, if any, 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 because the delegate was not satisfied the visa applicant and sponsor were in a genuine and continuing spouse relationship. The delegate was of the view that the sponsor continued to maintain a spouse relationship with his ex spouse in their family home.
The review applicant appeared before the Tribunal on 28 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The issue in the present case is whether the visa and review applicants are in a spouse relationship at time of application and continue to be in a spouse relationship at time of decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The visa applicant is 56-year-old Chinese national and lives in Fujian, China. She has a mother, three siblings and three adult children residing in China and a sister in the USA. She indicates she has also been known under the name Han Hong and previously lived in Australia from 2008 until she was located for overstaying her visa and departed Australia in July 2015. She is sponsored by the review applicant who is a 57 years old, Australian citizen, born in Fujian, China. The visa applicant declared two previous marriages, the first from 1 January 1985 to 8 September 2003 to Lin Jinbao. which ended in divorce. There were three children from this relationship. The second marriage was to Xie Tingwi from 22 June 2005 to 10 June 2013, which also ended by divorce. There were no children in this marriage. The review applicant declared one previous relationship from February 1998 that ended in divorce on 4 October 2015. There were two children of this marriage.
The parties claim to have met in November 2008 through a mutual friend. They exchanged telephone numbers and kept in contact and became friends. The parties claim to have commenced living together from October 2010, although the review applicant was still married to his wife and stayed with his wife and children on the weekends to spend time with his daughters, until October 2013 when the review applicant and his former wife separately completely. The visa applicant was located and detained by the Department in 2015 and she departed Australia in July 2015. The review applicant travelled to China and they married on 15 October 2015.
In January 2016 they applied for a Partner visa but this application was refused by the Department and they appealed to the AAT. The AAT affirmed the decision to refuse the application on 18 April 2017. The parties claim they have kept in continuous contact through phone calls and We Chat since that time and continue to plan their future together.
The present application was lodged on 20 June 2017. The review applicant has made numerous visits to China since the visa applicant returned there in July 2015.
Documents provided in support of the application include relationship statements by each of them, two Form 888 Statutory Declarations from a mutual friend of the parties, Ke Yunren , and the review applicant’s nephew Li Bingxin; divorce certificates for the visa and review applicants; various identity documents including passports and birth certificates; and evidence of the review applicant’s travel to visit the visa applicant, accommodation during his stay and photos.
The visa applicant and sponsor were interviewed by an officer of the Department on 24 May 2018 and notes of the interview are included in the Department file.[1]
[1] BCC2017/2179434, folios 59-68
In a decision dated 8 August 2018 the delegate refused the application, citing numerous concerns arising from the history of the visa applicant’s previous stay in Australia and inconsistencies and omissions in their evidence, including at the interview.
Evidence before the Tribunal
The review applicant applied for review of the decision to the Tribunal in October 2018. No further evidence or information was provided.
On 11 July 2023, following constitution of the matter to the present Tribunal, a request for updated evidence, submissions and information was sent to the review applicant. No response was provided.
Tribunal hearing 28 August 2023
At hearing the review applicant provided the following information. In response to the Tribunal’s query why no evidence has been submitted since the review application was lodged he explained that he is no longer represented by the migration agent due to a dispute over fees and his wife has a low level of education.
When asked if he was aware of the reasons for the delegate’s decision he said he has not seen the refusal letter and because of his lack of English language skills he cannot understand it. He believes the reasons relate to his wife not answering questions properly.
The review applicant confirmed his address and stated he has been living at this address since December 2019 and previously lived at another address in the same suburb. He lives in a share arrangement with two other people in a four bedroom house. He is the sole tenant on the lease and sublets to other tenants to help pay the rent. He needs a big house because he needs to store his tools. He has a business as a gardener for the past 20 years. He earns around $3000-$4000 per month.
He co-owns a property with his ex wife in Blacktown. They have not sold it as yet and he has no intention to because he intends to pass it to their children. He confirmed that they have obtained a divorce certificate but have not done a formal property settlement to date. He lived in the family property with his family until 2014. His children (two daughters aged 20 and 23 years) and ex wife still live in the property. His daughters are at university, one is studying law and one studies actuarial studies. After 2014 he moved to the previous address in Granville and then in 2019 to the present address.
Since 2014 he has been in contact with his children frequently and his ex wife only in relation to the children. He paid child support for his children until they turned 18 years. The Tribunal asked if he has evidence of this such as correspondence. The review applicant showed the Tribunal a letter dated 22 July 2023 showing a balance owed of $1096. He does have any other letters because he doesn’t keep them. He said he started paying child support since the divorce was finalised, and paid up to a maximum of $400 a month. He no longer provides financial support for his daughters because they have part time work. Sometimes he buys them dinner.
The Tribunal asked about their knowledge of his marriage to the visa applicant. In response he said his elder daughter knows now because she helped him to respond to the Tribunal regarding this hearing. He prefers not to discuss with them that he remarried because he does not want them to be emotionally affected. He only told his elder daughter recently, in August 2023. She did not say anything to him or ask him any questions, just helped him to fill out the form. He has not told his ex wife but feels she may have a feeling about it.
The Tribunal asked about his other family members in Australia. He said his father passed away in March 2023. He has a mother and younger brother who is marred and has one child who is 25 years old. They all live together in Blacktown. They know about the marriage after he married. None came to the wedding in China. His father was receiving dialysis and could not travel and his mother cared for him. The review applicant said his brother has returned to China for spring festival. He has met the visa applicant. The review applicant said he has another brother who used to live in Australia but returned to live in China many years ago. They do not speak to each other.
The visa applicant has met his brother. The review applicant has met her family, including her two older brothers and 2 younger sisters. Her parents are deceased. Her mother passed away this year. The review applicant named the visa applicant’s siblings.
The Tribunal asked about how he came to meet and marry the visa applicant. He said she worked here and was referred to him for work around the end of 2008. They started a relationship around 2010. They initially spent weekends together about one year into the relationship. The review applicant said he was still married to and living with his ex wife during this time and she was unaware of the relationship. It continued like this until the visa applicant left Australia. Later he stated that he had started to live full time with the visa applicant about two months before she was picked up and taken to Villawood. When asked if he knew about the circumstances of her leaving he said he was aware she came on someone else’s visa.
He visited her when she was at the detention centre in Villawood. After she left they stayed in contact. Later he divorced his wife and he travelled to China and married the visa applicant. No one from his side of the family attended the wedding in China. From her side, her brothers, sisters and mother all attended.
The Tribunal asked what he knows of the visa applicant’s living arrangements. He stated the address and said she has lived there for the past 7 years. She owns this property having bought it off the plan. It settled in 2014 when she was in Australia. She renovated and furnished it after she returned and has been living there since. She has no loan and lives there alone.
Regarding her relationship history, he knows she has a daughter and two sons and had two previous marriages. He does not know much detail about them. He understands she had arguments in her first marriage and after the second marriage she came to Australia.
Regarding her employment he said she does not work now. They jointly invested in a steel investment company and she gets income from that which she lives off. He said he may have contributed around 2/3 of the 200,000 RMB investment but he cannot remember exactly, it was before the pandemic. She used her savings for the remainder. She does not send him any money and he no longer sends her any money, since the pandemic. The Tribunal noted there is no evidence before it of any remittances by him. He said he used currency exchanges or sometimes when he went there he brought money with him. He indicated he has no evidence. He said since he moved he does keep documents. When they first applied for the visa they submitted photos but these were not returned. He does not even have photos of the wedding.
The Tribunal put to the review applicant that given the history of application and the reasons for refusal being insufficiency of evidence it is surprised that he has not retained and collected evidence to support the application. In response he said his understanding was that the first application was refused because of information about a friend that visited her in the detention centre and the Department insisted that she was making a false application. She gave inconsistent answers at an interview but it was conducted in Mandarin and she speaks a different dialect and didn’t understand properly and this is the reason for her answers. She is of low education background.
The review applicant said the past time he sent her money was on 20 May 2022 and it was RMB 5200 via WeChat. He said he has no chat history evidence to provide. She does not send him any money. She receives around RMB100,000 dividends in cash from the investment and lives off that. They have no loans or assets in joint names.
They live in their own separate places and have been doing so since the marriage. When he visits her they stay together. The last trip was in 2019. Before that he travelled around 8 times. When asked why he has not travelled since then, after the COVID restrictions were lifted in 2022, he said there are two reasons for why he hasn’t travelled. The first is financial and the second is that he was busy with things here.
The review applicant said he has made a travel plan for next month. He is travelling from 8 to 23 September. He is travelling with his two daughters and will visit the visa applicant for 5 days in that period. The main reason for his trip is to show his two daughters around. The elder one is currently in China on an exchange for two weeks and they are meeting there when she finishes. The review applicant said he will not be taking his daughters to visit the visa applicant. Because of the history of their relationship he does not want them to get involved in this relationship because he does not want it to affect them negatively. When asked to explain this more, he said that because he divorced their mother he does not want his daughters to lose faith in marriage. He is traditional in his thinking on this. Even if the visa applicant comes to Australia he will not share this marriage with them for this reason. He is okay to share it with everyone else, just not his daughters.
The Tribunal asked if the visa applicant is aware of his views on this. He said she is and she is fine with it. She does not feel the same about sharing the relationship with her children and he has met all of them. The Tribunal put to him that its concern may be whether it is satisfied he is genuinely committed to the relationship given this. He said the reason she is more open is that she has been married again before this marriage. The review applicant then said, if the visa is granted and the visa applicant comes to Australia he may slowly bring it up with his daughters.
The Tribunal asked about plans for the future. He said they have talked about if she comes here they will work hard together and buy a property to live in. He said they communicate by phone once or twice a week, or sometimes daily. Regarding how they support each other, he said they talk about their health, his business and work. He referred to an operation she had, he was not present with her but came just afterwards. He referred to health conditions he has and said she asks him about these.
The Tribunal noted the history of applications and asked why he continues to pursue this application after so long. He said he hopes she can come to live here. He cannot live there because he holds an Australian passport and has two children here.
The Tribunal asked if they have any topics they argue or fight about. He said she sometimes blames him for not sending money. Otherwise they don’t really have much to argue about because they only communicate by phone. Her mother recently passed away during the spring festival time and he tried to go back but failed to get a visa. Then he said he did not actually apply for a visa because it takes three months and it was too late.
The Tribunal put to the review applicant that at the Department interview the visa applicant referred to him giving her RMB100,000 for the apartment she bought in China in 2014 which is inconsistent with his evidence that he did not contribute to that. In response he said that she may have referred to money he paid her when she was working for him. During that time he often paid her more than he paid other employees. They never had any formal agreement regarding wages. The Tribunal noted at interview she said she worked for him until 2010 and after that he financially supported her. In response he said she was contributing to his business until she left.
Evidence from visa applicant 21 November 2023
On 28 August 2023 the Tribunal adjourned the hearing to resume with an interpreter who could communicate in the Fuzhou dialect, after observing difficulties between the Mandarin interpreter and visa applicant.
A further hearing was arranged on 21 November 2023 and the Tribunal was assisted by an accredited interpreter in the Mandarin language who was also able to speak the Fuzhou dialect. A summary of evidence obtained at this hearing follows.
The review applicant confirmed he travelled to and returned from China between 8 and 23 September 2023. He met his two daughters in Shanghai and travelled to several places with them before returning to Shanghai. They went on to Hong Kong and he travelled alone to Fuzhou to visit the visa applicant.
He stayed with the visa applicant for 5 days from 17 September to 22 September, then drove back to Xiamen and flew back to Sydney from there. He did not tell his daughters he was travelling to Fuzhou to visit his wife, the visa applicant. When asked why not he said he does not want them to know about his marriage because he does not want them to be affected by this or have unpleasant thoughts about marriage given they are yet to marry. He later said, if the visa applicant does come to Australia on a visa, he would inform his daughters about this relationship but not before that.
He stayed with the visa applicant at her home, they had dinner together, went shopping and they celebrated her birthday at a dinner with her sister. He did not bring her any birthday gift because he was rushed for time. When asked why he stayed only 5 days with the visa applicant given how long it has been since he last saw her, he said the main purpose of this trip was to accompany his daughters in China. He is very busy with his projects at present and it is not the usual time for him to take holidays so he could not stay longer. He said the visa applicant was aware he was accompanying his daughters in this visit and she was very happy he visited her. When asked if she knew he had not told his daughters about visiting her he said she did not ask about this.
Evidence from visa applicant
The visa applicant confirmed her address and that she lives alone in this property which she owns. She bought it in 2013. She contributed RMB 500,000 and the review applicant contributed RMB 250000. The property is under her name. When asked when the review applicant gave her this money she said it was not in one amount but at different stages.

The visa applicant is not working at present. She has some investments and receives dividends from that. The review applicant has not sent her money since COVID because his income reduced substantially. She cannot recall exactly when he last sent her money, she thinks it was around RMB 10,000 for her son’s wedding before COVID. Then she said he most recently gave her RMB 10,000 for her nephew’s wedding. This was sent through the bank.
The Tribunal asked what work the review applicant does. She said he is in landscaping, gardening work. When asked about his living arrangements, she said she has known him a long time and while they were together she knows he rented a house. He has told her now he lives alone.
The Tribunal asked how often they talk to each other. She said he calls her and says he misses her. They miss each other. When asked again how often they speak, she said he calls her once every two or three days. He calls her because it is too expensive for her to call him.
The visa applicant was aware the review applicant has two daughters and two brothers and a mother. His father passed away recently. His brothers and mother know about their marriage. She knows he has not told his daughters. This does not concern her because they have been together many years and their relationship is still good. The visa applicant said her whole family knows about the relationship. His distant relatives attended the wedding celebration in China, but not his parents.
The visa applicant said he last visited her in September 2023. He had to rush back because of his work projects. He was accompanying his daughters on this trip. While together they went shopping, had meals together and celebrated her birthday.
The Tribunal asked the visa applicant how they support each other and how they keep the relationship going. She said they talk over the phone. They care about each other.
The visa applicant referred to her knowledge of his health conditions and that she asks him about that, advises and consoles him.
When asked what topics they fight or disagree on she said there are no issues between them. Their relationship is very good. The Tribunal asked how is this so given so little time spent together in last 4 years. She said there is nothing she is not happy about. She hopes the Tribunal can approve the application.
Regarding financial matters between them the visa applicant confirmed she has no mortgage on her property since she returned from Australia. She was aware the review applicant still owns his marital property with his ex wife but she believes it may be passed on to his daughters. The Tribunal asked if they have any financial assets together. She referred to her investment asset. She initially had RMB50,000 and after that the review applicant contributed RMB150,000 and now they have RMB200,000. That was in 2012 when she was still in Australia.
The Tribunal discussed the visa applicant’s evidence with the review applicant and the issues arising in the review. It noted there were inconsistencies between their evidence about his contributions to her property and the amount and means of his last remittance to her. Regarding the first matter he said he gave her some money but did not know she used it towards her property. Regarding the remittances he said he sent RMB10,000 for her nephew and also gave her RMB 5200 through a special 520 WeChat event. The Tribunal noted that she did not mention the RMB 5200 amount and he did not mention the RMB 10,000 amount in their respective evidence. In response the review applicant said she has a tumour on her head and her memory is not good. He is very busy with his work and doesn’t recall everything.
The Tribunal put to him its main issue is the lack of supporting evidence and concern that arises about whether they are in an ongoing relationship at time of decision. In response the review applicant said why would he continue with this review application if it is not a genuine relationship. He referred to all the evidence previously provided and the application was refused. Some of this evidence was not returned to them. He has made many phone calls to her but he does not keep records. They once had a plan to have a child but she had health issues and they could not achieve this. He visited her regularly until 2019 and planned to visit in 2020 but then COVID happened. This last trip was primarily a trip for his daughters but he also visited her before he had to return to his projects.
The Tribunal indicated it would allow a further one week for him to submit any further evidence to support his claims.
On 28 November 2023 the Tribunal received three emails from the review applicant, including 4 pages from a mobile phone bill for his mobile phone showing international mobile calls for the period 23 September to 14 November 2023 indicating regular calls to the visa applicant’s mobile number in that period and an email in the Mandarin language containing a folder of documents in a zip file which was unable to be opened by the Tribunal. An officer of the Tribunal subsequently contacted the review applicant by phone and email to inform him that the content of the emails he sent are unable to be accessed and request that he resubmit the documents in these emails in a format which can be opened by the Tribunal and that any written information he wants the Tribunal to consider will need to be translated by an accredited translator. On 4 December 2023 the review applicant sent the same email containing material that was unable to be accessed.
On 5 December 2023 the Tribunal received an email from the applicant attaching a bundle of JPEG photos showing the review and visa applicants together and with others in social settings. No annotations or descriptions were included, however the Tribunal notes some images are screenshots with dates going back to 2016 and 2017.
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). 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.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence of the Notarial Certificate of married status, the Tribunal accepts the parties were married to each other in a marriage registered on 24 October 2015 at Fuzhou City Civil Affairs Bureau and the marriage is valid for the purposes of the Act as required by s.5F(2)(a).
Are the other requirements for a spouse relationship met?
The Tribunal observes that this is the second Partner visa application made by the visa and review applicants. The procedural history is described above. The Tribunal has considered the evidence referred to in the decision records relating to the earlier application in addition to the evidence submitted with the present application that was lodged on 20 June 2017.
While the Tribunal considers this material is relevant to the history between the review and visa applicants, the issues in this application are whether the visa and review applicant were in a spouse relationship at time of (this) application (20 June 2017) and continue to be in a spouse relationship at time of decision (the current time).
For the following reasons, having considered the evidence relating to the matters referred to in r r.1.15A(3)(a), (b), (c) and (d), and other circumstances of the relationship under r.1.15A(2) the Tribunal has reached the conclusion that it is not satisfied the requirements of the spouse are met at time of decision. The reasons for this decision follow.
Financial aspects of the relationship
The visa applicant and review applicant live in different countries and have lived in different countries since the time of application. The Tribunal takes this into consideration in assessing this aspect of the relationship. However it also takes into account that they have known each other, and claim to have commenced a relationship of some kind since at least 2010, when they were both in Australia, although there are various claims about the date they commenced living together as a couple in the material before the Tribunal. For present purposes, it accepts that they married in October 2015, and at least from that date it is not unreasonable to expect that they would consider joining or pooling their finances in some manner.
There is no evidence before the Tribunal that the review applicant and visa applicant have any assets held in joint names nor any evidence of joint liabilities. The evidence before the Tribunal is that the visa applicant acquired a property in around 2013 which she claims the review applicant financially contributed to, however the property is solely in her name. The review applicant continues to be on the legal title of the property purchased with his now ex wife, and at hearing indicated that he had no plans to finalise a property settlement with his ex-wife because they intend to leave the property for their children. The parties gave consistent oral evidence that the visa applicant relies on dividend income from an investment for her daily living expenses, and that the review applicant made some financial contribution to that investment. However their evidence about whether and now much the review applicant contributed is inconsistent and unclear, and there is no documentary evidence to support the claim of the review applicant’s financial contribution. There is also no evidence before the Tribunal relating to the investment asset to indicate whose name it is in. Regarding sharing of day to day expenses, the oral evidence of the parties is that the review applicant has not sent financial transfers to the visa applicant since COVID due to his reduced income. The parties gave inconsistent evidence about the amount and means of sending the last transfer. No evidence of these claimed transfers have been provided.
The Tribunal has had regard to the above, and also the circumstances that the review applicant and visa applicant live in different countries. It has considered that they are a mature couple who substantially acquired their own assets prior to the commencement of the relationship, although this is contradicted by the visa applicant’s claim that the sponsor contributed to her acquisition of her property in China and her investment asset. Despite this claim, there is no evidence that either of these appear are held jointly. The Tribunal also takes into consideration in its assessment of the financial aspects the length of time since the parties married, now 9 years and considering this length of time, it is not unreasonable to expect more evidence of combining or pooling of their financial affairs by now.
On balance, taking all of the above into account and on the evidence, the Tribunal is not satisfied the financial aspects of the relationship support the existence of a genuine spouse relationship at time of decision.
Nature of the household
The Tribunal acknowledges that the visa applicant and review applicant live in different countries and have adult children from previous relationships. There is no evidence therefore of joint responsibility for care and support of children or of joint living arrangements or sharing of housework. The Tribunal acknowledges evidence of movement records support the review applicant’s claims of numerous visits to the visa applicant between 2015 to 2019, and there is some evidence including photos that they spent time and stayed together during those visits. However, apart from 5 days in September 2023, they have not physically been together since 2019. The Tribunal acknowledges the explanation of the circumstances of COVID for why no visits were possible at least between 2020 and 2022 and takes this into account, but this does not explain why the parties have not sought to spend more time together since the end of the pandemic restrictions. In particular the Tribunal found it notable that, despite the length of time since they have seen each other, the review applicant elected only to stay with her for 5 days in September when he last visited.
The Tribunal finds there is little evidence relating to the nature of the household to support the existence of a genuine spouse relationship at time of decision.
Social aspects of the relationship
The review applicant has not disclosed his marriage relationship to his adult children to date. He explained this at some length to the Tribunal at hearing and became quite irate and emotional explaining this. The Tribunal acknowledges his explanation and accepts his reasons for not wanting to reveal this to his daughters. However, given that it has been 9 years since his marriage, the Tribunal considers this to be of some significance as an indicator of his commitment to the relationship. The parties referred in their oral evidence to other members of their families who are aware of the relationship, however no recent evidence to support that they are still representing themselves to other people as being married to each other or evidence of the opinion of friends and acquaintances about the nature of the relationship has been provided. The review applicant visited the visa applicant for 5 days in a three week holiday he recently took to China. A bundle of photos were submitted to the Tribunal after the hearing, but in the absence of any annotation the Tribunal cannot be certain any of these photos relate to this recent visit. Despite this, the Tribunal is willing to accept some of the photos may be from this visit and accepts that the review an visa applicant recently spent time together in person. A mobile phone bill was provided to the Tribunal indicating regular phone calls between the parties from 23 September to 14 November 2023.
The Tribunal finds the evidence relating to the social aspects of the relationship is minimal and does not strongly supportive of the existence of a genuine spouse relationship at time of decision.
Nature of persons' commitment to each other
The parties married in October 2015 and claim to have met and started their relationship as far back as 2010. In all of that time they have lived together for very short periods, and only 5 days in the past 4 years. There is minimal evidence before the Tribunal to support their claims of ongoing regular phone contact by which they claim to give each other companionship and emotional support. To this end, the Tribunal notes and has considered the evidence of the review applicant’s mobile phone account provided recently – for the period 23 September to 14 November 2023 which indicates regular phone calls between them of reasonable duration. The Tribunal observes this period followed immediately from his last visit, noting he returned to Australia on 23 September. In the absence of evidence of records of communication for previous periods the Tribunal is not satisfied that the parties have been communicating regularly in a manner consistent with a genuine and ongoing relationship.
The Tribunal has considered their claim that the perseverance by both of the applications for a Partner visa is evidence that they see the relationship as long term, but it does not find this persuasive, taking into consideration the review applicant’s conduct such as his reluctance to collect and submit supporting evidence, his reluctance to disclose his relationship to his daughters despite how long it has been going, and his failure to spend more than 5 days with the visa applicant recently. It accepts their perseverance of the application demonstrates a commitment to obtain a visa for the visa applicant but is not satisfied it, of itself, demonstrates a commitment to the relationship. The Tribunal is not satisfied on the evidence before it that the parties see the relationship as long term.
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.
There is no evidence to indicate the visa applicant meets the alternative criterion in cl.309.211(3) (intention to marry).
Therefore the visa applicant does not meet cl.309.221.
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
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 4622

11 December 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice