1. Therefore, the Respondent did not participate in this review.

Previous constitution of this review and Tribunal hearing

1. This review was first constituted to another Senior Member of the Tribunal who scheduled three Tribunal hearings, the first of which was conducted on 6 June 2024 and adjourned after the Senior Member had not taken any evidence from the applicant or sponsor. The first of the two subsequently scheduled hearings on 11 July 2024 was cancelled at the request of the applicant and the second subsequently scheduled hearing for 26 September 2024 was cancelled by the previous Senior Member who was constituted this review.
2. On 13 September 2024 the Tribunal as presently constituted requested detailed additional and updated information from the sponsor and the applicant.
3. On the same day the sponsor and the applicant provided a large amount of additional information to the Tribunal in response to requests for additional information by the Tribunal as previously constituted.
4. On 11 October 2024 the sponsor and the applicant provided a further large amount of additional information and documents to the Tribunal in response to the request of the Tribunal as presently constituted on 13 September 2024.
5. The sponsor as the review applicant in this review was represented by Ms Linda Tie Liu of Sydney Immigration & Student Services in relation to the review. Ms Liu is referred to as the representative in these reasons for decision.

No Tribunal hearing by the Tribunal as presently constituted

1. After reviewing the updated and additional information provided to the Tribunal, the Tribunal formed the view that it could make a decision wholly in favour of the applicant that adequately determines all issues in the proceeding based on the material before it without a hearing. This is permitted by sections 106(1) and (3) of the ART Act.

1. The issue in this review is whether the applicant and the sponsor are in a married relationship as defined in s 5F of the Act when considering the matters set out in reg 1.15A(2) and (3) of the Regulations.

Whether the parties are in a spouse relationship

1. Clause 309.211(2) requires that, at the time the visa application was made, the applicant is the spouse of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the applicant must continue to be the spouse at the time of the Tribunal's decision: cl 309.221.
2. In the present case the applicant claims to be the spouse of the sponsor who the Tribunal accepts is an Australian permanent resident.
3. '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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties provided to the Department a copy of a Chinese marriage certificate with a certified translation into English stating the parties were married on 12 January 2016 in China. The Tribunal accepts this evidence.
2. On the evidence before the Tribunal, the Tribunal finds 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) of the Act.

Are the other requirements for a spouse relationship met?

1. The Tribunal received submissions and documents on behalf of the parties on 5 November 2020, 30 November 2020, 2 December 2020, 30 May 2023, 20 September 2023, 11 June 2024, 13 September 2024 and 11 October 2024.
2. The Tribunal summarises the background to and circumstances of the relationship of the applicant and the sponsor as set out below based on all of the information before the Tribunal, including information previously provided to the Department. These are not findings of the Tribunal:
   • The applicant and sponsor grew up as neighbours in China in Shanghai;
   • The parties' maternal grandmothers both worked at the same textile factory in Shanghai so their families were well known to each other;
   • The applicant's father died when he was 15;
   • The sponsor's mother died when she was 16;
   • The applicant and sponsor first married according to the visa application in "about 1980" but according to their personal statements dated 25 August 2024 for the applicant and 8 September 2024 for the sponsor, they were first married in August 1986;
   • On [date deleted] 1987 the parties had a son, AB (a pseudonym) who is now aged 37;
   • The applicant's father is deceased, but at the time of application his mother was alive and aged 86;
   • The applicant also has an older married sister, younger married brother and a younger married sister;
   • The sponsor's parents were both deceased at the time of the applicant's visa application and she has three sisters and two brothers, with the eldest brother also being deceased;
   • The parties lived with the applicant's mother and his brother's family in the one household in Shanghai, China;
   • On 6 March 1995 the first marriage of the applicant to the sponsor was terminated by divorce in China;
   • In January 1999 the sponsor met [Mr A], who is an Australian citizen of Chinese descent;
   • In July 2000 the sponsor and [Mr A] married in Sydney, Australia;
   • On 1 August 2001 the sponsor was granted a Subclass 309 Partner visa as the spouse of [Mr A], who sponsored her application;
   • On 16 September 2001 the sponsor arrived in Australia for the first time to live with her second husband;
   • On 19 November 2002 the sponsor was granted the permanent Subclass 100 Partner visa, becoming a permanent resident of Australia;
   • On [date deleted] 2003, the sponsor and her second husband had a son, CD (a pseudonym), who is now aged 22 and is an Australian citizen;
   • In July 2003 the sponsor, her second husband and CD returned to Shanghai, China to live so the sponsor's second husband could operate a business in China, which he did very successfully according to the sponsor;
   • The sponsor claims after the birth of CD she suffered severe depression causing her to receive psychological treatment in Shanghai "for a long time";
   • The sponsor further claims CD "had an allergic constitution" as an infant and often fell ill causing a hospital to issue "critical illness notices three times";
   • [Redacted];
   • In March 2007 the sponsor was diagnosed with [cancer];
   • During the sponsor's hospitalisation her second husband, whose business was in Hangzhou, Zhejiang - which is approximately 176 kilometres from Shanghai or over two hours by car - only visited [her];
   • The sponsor's eldest son, AB, who was then aged 20, informed his father, the applicant about his mother's illness and the applicant provided financial, emotional and practical day to day support for the sponsor and her younger son, CD, who was then aged only four during the sponsor's lengthy treatment and recovery;
   • On 19 June 2008 the marriage of the sponsor to her second husband was terminated by divorce in China;
   • In 2009 the applicant moved in with the sponsor and CD and they lived together as a family unit until September 2012;
   • During this period the applicant asked the sponsor to remarry him more than once, but the sponsor declined due to her ill health and not wanting to be an ongoing burden on the applicant;
   • On 12 September 2012 the sponsor and CD, who was then aged nine, returned to Australia so CD could go to school in Australia;
   • On 28 September 2012 AB was awarded a Bachelor of Arts in Architecture from the University of Canberra in Australia;
   • The applicant remained living in the sponsor's house in Shanghai, China;
   • At this time, the parties' son AB was studying at university in Sydney, Australia as an international student;
   • The applicant and sponsor agreed that the applicant would work in China and the sponsor would work in Australia to pay for AB's university study in Australia;
   • The sponsor received follow up cancer treatment in Australia and was eventually cleared as cancer free and unlikely (statistically) to experience a reoccurrence;
   • The sponsor returned to China during the following periods to visit the applicant and family and friends:
     • 24 December 2013 to 2 February 2014; and
     • 28 December 2015 to 25 January 2016;
   • On 31 July 2015, AB was awarded a Master of Architecture from the University of New South Wales in Australia;
   • On 12 January 2016, during the sponsor's second return trip to China, the sponsor remarried the applicant;
   • The sponsor returned to China during the following periods to visit the applicant and family and friends, with the visits occurring during CD's Australian school holidays:
     • 31 December 2017 to 1 February 2018 (one month);
     • 25 April 2018 to 13 May 2018 (18 days);
     • 23 September 2018 to 21 October 2018 (one month);
     • 2 December 2018 to 20 January 2019 (seven weeks);
     • 1 July 2019 to 23 July 2019 (three weeks);
     • 8 December 2019 to 27 January 2020 (seven weeks);
     • 22 June 2024 to 11 August 2024 (seven weeks);
   • During the COVID-19 global pandemic the applicant was diagnosed with early stage bladder cancer and received treatment for this in China including bladder surgery in 2021, with the sponsor being unable to visit or care directly for the applicant due to the restrictions on international travel at the time. [Redacted];
   • On 17 April 2024 the applicant was granted a Subclass 600 Visitor visa that permits the applicant to travel to Australia once and stay for up to 12 months;
   • On 11 August 2024 the applicant arrived in Australia for the first time (with the sponsor) and has remained in Australia since. The applicant's Visitor visa will cease on 11 August 2025;
   • The applicant is now retired and receives a pension from China;
   • On 14 August 2024 the applicant and the sponsor opened a bank account with a major Australian bank in their joint names and provided a copy of the first three statements for that account for the period 14 August 2024 to 6 October 2024 during which time AUD[Amount] was credited to the account and AUD[Amount] was debited from the account; and
   • On 30 August 2024 the parties each executed wills appointing each other as their executor with the applicant bequeathing his estate to the sponsor or AB if the sponsor predeceases him and the sponsor granting the applicant the right to live rent and charge free in her Shanghai property for life, with the balance of her estate shared equally between her sons.
3. On 8 July 2025 the Tribunal emailed the representative as follows (emphasis in the original):

Your client's application for review remains under active consideration by the Presiding Member.

The last information before the Tribunal was that the visa applicant, Mr Gu, has been in Australia since 11 August 2024 as the holder of a Visitor visa living with Ms Yao and their two adult children.

Please confirm by return email whether there has been any material change in the personal circumstances and relationship of Mr Gu and Ms Yao.

1. On 9 July 2025 the representative responded by email to the Tribunal:

I confirm that no material change [has occurred] in the personal circumstances and relationship of Mr. Gu and Ms. Yao.

Financial aspects of the relationship - including any joint ownership of real estate and other major assets; any joint liabilities; the extent of any pooling of financial resources; whether the parties owe any legal obligations in respect of each other; the basis of any sharing of day-to-day household expenses

1. The sponsor claims that her house in Shanghai is jointly owned with the applicant.
2. The sponsor provided the Tribunal with a copy of an original certificate of real estate for her property in China and a certified translation of that document into English. The certificate is dated 6 January 2020 and is accompanied by a notarial certificate stating the certificate of real estate is authentic. The certificate of real estate states that a property in a district of Shanghai is owned 95% by the sponsor and 5% by the applicant.
3. However, the Tribunal notes that in the respective August 2024 wills of the parties it is only the sponsor's will that specifically deals with the Shanghai property, confirming she has if not sole, then effective ownership, of that property.
4. The parties do not claim to jointly own any other major assets, to have any joint liabilities or to owe legal obligations in respect of each other.
5. The Tribunal notes that the parties now have an Australian bank account in joint names but the statements provided to the Tribunal reveal very modest deposits into and use of that account by the parties. In the Tribunal's view the opening and use of this account does not represent a meaningful pooling of financial resources by the parties.
6. The Tribunal was also provided with a statement covering the period 12 September 2024 to 6 October 2024 for a bank account with a major bank in the name of the sponsor only. The statement shows two transfers from a bank account held by the applicant to the sponsor, totalling AUD[Amount] and debits from the sponsor's account totalling AUD[Amount]. This statement gave the Tribunal little meaningful insight into how the parties pool their financial resources other than to confirm that the applicant continues to financially support the sponsor, which is consistent with historical money transfer information
7. In a statement made by AB dated 28 August 2024, he stated:

In late 2017, our ancestral home in Shanghai, which my father, my mother, and I jointly inherited, was demolished. In early 2018, the demolition compensation that I and my parents jointly inherited was transferred by my parents and our relatives in Shanghai to my bank account in Sydney, Australia. This asset was intended to help with our family's plan to purchase a property in Sydney for our future living and joint use. However, due to the outbreak of the COVID-19 pandemic and the economic downturn, the funds have remained in my bank account as a reserve for the family's first property purchase.

1. A certified translation into English was provided of a copy of details of a house in China being expropriated and compensation. It appears from the translation to the Tribunal that seven people were registered as residents of the house and five people were living there at the time it was acquired by Chinese authorities. It is not evident to the Tribunal how much compensation the Chinese authorities agreed to pay or to whom.
2. There is no updated evidence before the Tribunal in relation to these claims, such as copies of statements from the personal bank accounts of AB or even the sponsor (apart from less than one month from September 2024) to show either where these funds continue to be saved or how these finds have since been used.
3. The Tribunal notes it was provided with statements for the applicant's Bank of China (Australia) bank account. While these statements appear to show a balance of AUD[Amount] in a savings account held by the applicant, the statements appear to date back to mid-2018. Up to date information has not been provided to the Tribunal.
4. The Tribunal accepts that the parties have now been living together in Australia for 11 months and according to the various statements before the Tribunal they share day to day household expenses.
5. Given the lack of up to date information before the Tribunal about the parties' respective and joint savings and how they are pooling their financial resources the Tribunal finds that overall, the matters relevant to the financial aspects of the parties relationship do not support a finding by the Tribunal that the applicant and sponsor are in an ongoing married relationship at the time of this decision. The Tribunal gives this finding some weight.

Nature of the household - including any joint responsibility for the care and support of children; the parties' living arrangements; and any sharing of the responsibility for housework

1. AB and CD both provided statutory declarations declared on 7 October 2024 in which they declare their residential addresses to be the same address as the applicant and sponsor. As noted in paragraph 26 of these reasons for decision, at the time of this decision AB is 37 years old and CD is 22 years old. Other than the award of AB's bachelor's and master's degrees in architecture and the sponsor's November 2020 statement that AB is in stable employment in Australia, little information has been provided about the personal circumstances of AB and CD to the Tribunal. The Tribunal does not consider AB or CD to be children for the purposes of this consideration.
2. However, the Tribunal accepts that both AB and CD live with the applicant and sponsor and further accepts their respective and consistent evidence of the happy nature of their shared household, the care and affection the parties' display toward each other and that the four of them - the applicant, the sponsor, AB and CD - are living together as a genuine family unit. Both AB and CD separately stated in their declarations how important the applicant is to their family unit and they both hope he is granted a visa to remain in Australia. The Tribunal gives this evidence great weight.
3. At the time of this decision the applicant and the sponsor have now lived together for 11 months with AB and CD in Australia. The Tribunal considers this a meaningful period of time in which the parties' have been able to establish their own household as a family unit with AB and CD.
4. The sponsor in her most recent statutory declaration also declared on 7 October 2024 stated:

My husband (Hui GU) and I live together with our two sons. Our sons are usually out for work and studies, so the daily household tasks are mainly handled by my husband and me. I primarily take care of cooking food and washing cloth, while my husband is mainly responsible for cleaning the food and doing the dishes. On weekends, our whole family works together to clean the house, such as sweeping, vacuuming, mopping, and dusting.

1. The applicant also declared a statutory declaration on 7 October 2024 but in this respect it is identically worded to the sponsor's declaration. Given the evidence before the Tribunal of the applicant's limited English, the Tribunal gives this aspect of his statutory declaration little weight as reflecting his own words and views of how he and the sponsor share responsibility for housework.
2. However, the Tribunal accepts the evidence of the sponsor in this regard and accepts that the parties share the responsibility for housework since they have been living together in Australia in a manner that is consistent with them being in an ongoing married relationship.
3. The Tribunal finds that overall, the matters relevant to the nature of the parties' household support a finding that the applicant and sponsor are in a genuine married relationship at the time of this decision. The Tribunal gives this finding significant weight.

Social aspects of the relationship - including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the parties plan and undertake joint social activities

1. Apart from a small number of photos and some travel documentation there was what the Tribunal considers to be very limited information before the Department about the social aspects of the parties' relationship.
2. The Tribunal has now been provided with multiple updated statements and statutory declarations from the sponsor, the applicant, AB and CD. The Tribunal has also been provided with translations into English of detailed statements, both in declaration form, from the sponsor's eldest sister in China, Ms Hongdi Yao dated 9 October 2024 and from the applicant's older sister in China, Ms Hua Gu dated dated 4 October 2024. Both declarations were made on behalf of the sponsor's and applicant's families in China respectively.
3. The Tribunal has also been provided with:
   • statutory declarations using the Department's Form 888 from a neighbour of the parties and a friend of the sponsor's who has become a friend of both the sponsor and the applicant;
   • 38 fully annotated photos of the applicant and the sponsor in Australia socialising with family and friends; and
   • 61 fully annotated photos of the applicant and sponsor in China socialising with both sides of their family and many friends in China.
4. The photos reveal that the parties celebrate normal family milestones such as birthdays and events such as Chinese New Year together and with friends and confirm that when the sponsor and CD regularly returned to China they spent considerable time with the applicant. The photos in Australia confirm the claims of the parties in their statements that they are a family unit with AB and CD and the four of them live, often socialise and celebrate normal family events together.
5. Collectively, the updated and additional information provided to the Tribunal demonstrates to the Tribunal's satisfaction that the parties, in both China and Australia, represent themselves to other people as being married to each other, their respective families, friends and acquaintances accept them as a married couple and they have an active social life as a couple and as a family with AB and CD.
6. The Tribunal finds that overall, the matters relevant to the social aspects of the parties' relationship each support a finding that the applicant and sponsor are in a genuine married relationship at the time of this decision. The Tribunal gives this finding great weight.

Nature of persons' commitment to each other - including the duration of their relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as a long-term one

1. The parties have now been remarried for over nine and a half years, which the Tribunal finds to be a long-term partner relationship. The term 'long-term partner relationship' is defined in reg 1.03 as meaning a relationship between the applicant and sponsor as spouses that has continued for at least two years if there is a dependent child or otherwise for at least three years.
2. Since remarrying the applicant in 2016 the sponsor has returned to China seven times and stayed there for a total of approximately 35 weeks. The parties' respective evidence, supported by their photographic evidence and statements of AB, CD and the parties' respective older siblings in China, is that they spent a great deal of these 35 weeks living together in China. The Tribunal accepts this evidence.
3. In addition, the applicant has now been in Australia since 11 August 2024 and they have now spent 11 months or almost 48 weeks living together as spouses in Australia according to their updated statements and the statements of AB and CD, again supported by the recent annotated photographic evidence provided to the Tribunal.
4. It is clear to the Tribunal from all of the evidence before it that the parties are in a genuine married relationship where they draw a great degree of companionship and emotional support from each other. The applicant has supported and assisted the sponsor through both her cancer treatment and recovery from and management of her mental health while the sponsor provided emotional support to the applicant whilst he underwent treatment for bladder cancer, with the COVID-19 global pandemic preventing the sponsor providing in-person support.
5. The parties have worked together to financially support their son AB with the completion of his studies in Australia and for CD to undertake his schooling in Australia as an Australian citizen, with AB and CD providing evidence that CD considers the applicant to be a father-like figure in his life.
6. The Tribunal is also satisfied that the parties see their relationship as a long-term one.
7. The Tribunal finds that overall, the matters relevant to the nature of the parties' commitment to one another each support a finding that the applicant and sponsor are in a genuine married relationship at the time of this decision. The Tribunal gives this finding great weight.

1. The Tribunal did not specifically ask the parties for additional time of application information given the visa application was made over seven years ago on 27 June 2018 and the primary decision was made over five and half years ago 4 December 2019.
2. Having reviewed all of the evidence before the Tribunal, the Tribunal is satisfied that from at least the time the parties remarried on 12 January 2016, which was almost 18 months prior to the visa application being made, the parties were in a genuine and continuing married relationship.

1. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met both at the time of application for the visa and at the time of this decision.
2. Therefore, the Tribunal finds the applicant meets cl 309.211(2) and cl 309.221 of Schedule 2 to the Regulations.
3. Given the findings above, the appropriate course is to remit the applicant's application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

1. The Tribunal sets aside the decision in relation to the visa applicant and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 309 (Partner (Provisional) visa:
   • cl 309.211 of Schedule 2 to the Regulations; and
   • cl 309.221 of Schedule 2 to the Regulations.

Date of hearing: 6 June 2024 (Tribunal as previously constituted).

Representative for the Applicant: Ms Linda Tie Liu, Sydney Immigration & Student Services

ATTACHMENT - Extract from Migration Regulations 1994

(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).

(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).