• cl 309.211 of Schedule 2 to the Regulations; and,
• cl 309.221 of Schedule 2 to the Regulations.

MIGRATION - Partner (Provisional) (Class UF) visa - Subclass 309 (Partner (Provisional)) - genuine and continuing relationship - no documentation or submissions with application - validly married - financial, household and social aspects of relationship and nature of commitment - previous marriages and relationship history - review applicant's investments and occasional transfers, and visa applicant's family property - review applicant's temporary residence permit allows 3-month stays - family occasions and domestic and international travel - consistent oral evidence, extensive documentation, submissions and supporting statements - member of family unit child now young adult - decision under review remitted

Migration Act 1958 (Cth), ss 5F(2), 65

Migration Regulations 1994 (Cth), r 1.15A(2), (3), Schedule 2, cls 309.211(2), 309.221

He v MIBP [2017] FCAFC 206

Jayasinghe v MIMA [2006] FCA 1700

Re MILGEA and Dhillon [1990] FCA 144

Singh v MIEA [1996] FCA 1429

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).
2. The first named visa applicant (the visa applicant) applied for the visa on 4 June 2019 on the basis of her spousal relationship with her sponsor, the review applicant Mr Danian Zhang. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). 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.
3. The delegate refused to grant the visa on 16 August 2022 on the basis that Mrs Duan did not satisfy cl 309.211(2) of Schedule 2 to the Regulations. Whilst accepting that Mrs Duan and Mr Zhang (hereinafter referred to as the couple) are married, the delegate was not satisfied the couple were mutually committed to a shared life as a married couple, to the exclusion of all others, as required by reg 1.15A of the Regulations. The couple did not have the benefit of professional advice at the time Mrs Duan's Subclass 309 visa application was lodged with, and considered by, the Department.
4. Following refusal of the visa application, review of the delegate's decision was sought in the Administrative Appeals Tribunal (the AAT). Inconsistent with cl 2.3 of the AAT's President's COVID-19 Special Measures Practice Direction - Migration and Refugee Division dated 27 April 2020, the couple's newly appointed representative did not provide a clear and concise written submission addressing the matters the Tribunal must determine and lodge all necessary documentary evidence on which the couple seek to rely. The only documentation lodged with the Tribunal was a copy of the delegate's decision.
5. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
6. After constitution of the matter to the Member, the couple were invited to attend a hearing on 2 May 2025. The Tribunal's hearing invitation expressly requested the couple provide a submission supported by current information and probative evidence to address the delegate's reasons for refusing Mrs Duan's Subclass 309 Partner visa application. Aware that the couple were in China, the Tribunal invited them to attend the hearing by way of MS Teams videoconference. The hearing invitation noted the couple may wish to have family members or friends based in Sydney attend the in-person hearing. Alternatively, it suggested such parties may wish to provide an updated Form 888 Supporting statement in relation to a Partner or Prospective Marriage visa application or, for parties located overseas, a Statutory Declaration addressing the genuineness of the couple's relationship and thereby address the delegate's reasons for refusing Mrs Duan's Subclass 309 visa application. The Tribunal requested any documentation be lodged at least 7 days prior to the hearing.
7. The representative advised the Tribunal 4 business days before the hearing that the couple wished to have the Tribunal take oral evidence from 13 witnesses and he provided their respective overseas and local telephone numbers. In the circumstances, the Tribunal invited the couple to provide Forms 888 or Statutory Declarations from some of the proposed witnesses and it reminded the representative of the opportunity for witnesses based in Sydney to attend the in-person hearing.
8. The day before the hearing, the Tribunal was advised that Mr Zhang's Sydney-based daughter and Mrs Duan's sister in China would attend the MS Teams videoconference hearing to give evidence. The representative also submitted some documentation including evidence of funds transfers from Mr Zhang to his wife, further photographs of the couple with family and friends as well as Forms 888 from:
   1. Mr Zhang's daughter Linda Peate (nee Linda Zhang) (Mrs Peate) sworn 1 May 2025; and,
   2. Mrs Duan's sister Xiao Feng Duan signed 1 May 2025.
9. On the day of the hearing, the representative submitted over 400 pages of further documentation including his submission addressing the delegate's reasons for refusing Mrs Duan's Subclass 309 visa application, the couple's WeChat records for the 6 week period from 18 September - 31 October 2022 (in Mandarin together with a certified English translation thereof), further evidence of the transfer of funds from Mr Zhang to his wife in the period 30 May 2024 - 20 March 2025 and multiple captioned photographs of the couple with family and friends, including with dates and locations of the photographs as well as the names of parties identified. The locations range include the couple meeting with family and friends in Shanghai, Fuzhou to Chongqing.

1. Mrs Duan and her husband Mr Zhang appeared before the Tribunal to give evidence and present arguments by way of MS Teams videoconference given their current location in China. It also received oral evidence from Mr Zhang's daughter Mrs Peate and Mrs Duan's sister Xiao Feng Duan by way of MS Teams videoconference. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. Only Mrs Duan and her sister Xiao Feng Duan used the services of the interpreter. The couple were represented in relation to the review by immigration lawyer Terry Zhang who also attended the hearing by way of MS Teams videoconference. The Tribunal found all persons appearing before it to be credible witnesses. Evidence provided at the hearing is discussed below.
2. The Tribunal discussed during the hearing the nature of the couple's relationship including the financial and social aspects of the relationship, the nature of their household as well as their commitment to each other. It also identified a number of shortcomings in documentation lodged prior to the hearing. The couple proactively engaged with the Tribunal's invitation to provide further documentation after the hearing and thereby have the opportunity to address any shortcomings in documentation provided before the hearing.
3. During the hearing and in response to the Tribunal's request for evidence addressing the social aspects of the couple's relationship from Mrs Duan's family in China, the representative provided a copy of the unsigned undated statement from Mrs Duan's son, the second named visa applicant Yuan Chen, which had been provided to him just after the delegate refused Mrs Duan's Subclass 309 visa application. The representative apologised profusely to Mr Zhang and Mrs Duan as well as to the Tribunal for his failure to lodge Yuan Chen's statement earlier. In light of the representative's failure to comply with the AAT's Practice Direction referred to above at para [4], the Tribunal reminded the representative that failure to act in his client's best interest and comply with relevant Practice Directions may result in referral to the relevant regulatory authority. The representative acknowledged the Tribunal's comments in this regard.
4. After the hearing, the representative provided further extensive documentation to address the concerns raised by the Tribunal during the course of the hearing. Evidence provided is discussed below.
5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. It acknowledges that it has significantly more information than that which was available to the delegate at the time of their decision, in particular, oral evidence at the hearing as well as the extensive documentation (in excess of 1,400 pages) submitted prior to the hearing and thereafter. It also notes that, as confirmed at the hearing, the couple did not have the benefit of any professional advice when Mrs Duan lodged her Subclass 309 Partner visa application: rather, they just relied on Mrs Peate to help them.

1. The review applicant Mr Zhang is a 66-year-old Australian citizen. He arrived in Australia on 2 October 1988 as the holder of a Student visa. [Information redacted][1] Subsequently, Mr Zhang acquired Australian citizenship on 23 July 1998: this is confirmed by the Certificate of Australian Citizenship lodged with the Department.
2. As set out in the delegate's decision, prior to his current marriage to Mrs Duan, Mr Zhang has been previously married twice and he also had one prior de facto relationship. His first marriage to Ms Huoxing Chen was from 18 June 1986 to 25 July 1995 as confirmed by the Decree Nisi dated 25 July 1995 issued by the Family Court of Australia. That marriage produced one child, Mr Zhang's daughter Mrs Peate. His second marriage was to Ms Yu Yu from 13 February 1996 to 17 November 2002. That marriage, too, ended in divorce as confirmed by the Certificate of Divorce issued by the Family Court of Australia on 17 November 2002 lodged with the Department. There were no children of Mr Zhang's second marriage. In addition, Mr Zhang confirmed that he had a de facto relationship with Meijun Hellena Zhao from 1 May 2006 to 1 August 2015: however, the relationship ended in the parties separating and there are no children of that relationship. Although he has skills as a Chef in western cuisine, Mr Zhang's main source of income is from investments discussed below.
3. Mrs Duan is a 42-year-old citizen of China. In her visa application, Mrs Duan declared 2 prior marriages. Her first marriage to Xianqiang Chen from 15 March 2004 to 17 August 2009 ended in divorce as confirmed by the Divorce Certificate issued 17 August 2009 by the Ministry of Civil Administration of the PRC lodged with the Department. Mrs Duan and her first husband had one child from their relationship, the second named visa applicant Yuan Chen. Her second marriage was to Japanese national Mr Murakami Yoshikatsu from 17 November 2010 to 4 July 2016. That marriage ended in divorce with no children as confirmed by the Certificate of (Divorce) Acceptance dated 4 July 2016 issued by the Ministry of Foreign Affairs of Japan lodged with the Department.
4. The couple claimed to have first met through a Chinese dating website in March 2017. At the time, Mr Zhang had been living in China since December 2016. Within a week, the couple had their first face-to-face meeting in Fuzhou, Fujian. Their relationship developed quickly and Mr Zhang introduced Mrs Duan to his mother in Fuzhou before they headed off on the 1,800 km trip to Mrs Duan's home town of Chongqing. The couple married in Chongqing just over a month later on 20 April 2017 and have essentially been living together since then. Initially, the couple lived together at Mr Zhang's mother's apartment in Fuzhou and, after she died in January 2023, the couple moved to live at Mrs Duan's family home in Chongqing with her now 18-year-old son Yuan Chen after a short say with her sister Xiao Feng Duan.
5. Mr Zhang's Movement Records confirm his oral evidence at the hearing that he has regularly returned to China since acquiring Australian citizenship. He told the Tribunal that he has a Residence Permit with allows him to remain in China for at least 3 months at any one time. Apart from his near 2½ years in Australia during the COVID-19 pandemic, in the last 15 years Mr Zhang has spent the majority of his time living in China. A copy of Mr Zhang's Chinese Residence Permit issued by the Shuijiang Police Station in Chongqing (in Mandarin together with a certified copy English translation thereof) was provided to the Tribunal. As explained during the hearing, Mr Zhang said he leaves China every 3 months to renew his Residence Permit. This sometimes requires that he travels to Hong Kong and then return on the same day or, he and Mrs Duan take the opportunity to travel together for holidays: so far, they have been to Japan, Taiwan and Bali. Evidence of the couple's flight bookings and hotel stays as well as photographs have been provided to the Tribunal to confirm this information.

1. The issue in the present case is whether Mr Zhang and Mrs Duan were in a genuine spousal relationship at the time of application and the continue to be in such a relationship as at the time of this decision. Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision.

1. Clause 309.211(2) of Schedule 2 to the Regulations requires that, at the time the visa application was made, Mrs Duan was the spouse or de facto partner 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 visa applicant Mrs Duan must continue to be the spouse or de facto partner at the time of the Tribunal's decision: cl 309.221 of Schedule 2 to the Regulations. In the present case, Mrs Duan claims be the spouse of her sponsor, Australian citizen Mr Zhang.
2. The word 'spouse' is defined in s 5F of the Act and provides that a person is the spouse of another where the 2 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 also 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) - s 5F(2)(d) of the Act.
3. 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 of the parties' relationship as well as the nature of the visa applicant's and the sponsor's household and their commitment to each other as set out in reg 1.15A(3) of the Regulations. These provisions are extracted in the Attachment to this decision. Each of the specific matters contained in reg 1.15A(3) of the Regulations are effectively questions which must be answered by the decision-maker: He v MIBP [2017] FCAFC 206 at paras [76] - [77]. The Tribunal's assessment of whether the claimed relationship involves a 'mutual commitment to a shared life' requires an assessment of the subjective intentions of the parties: Singh v MIEA [1996] FCA 1429 at [13].
4. Relevant to its review of the delegate's refusal of Mrs Duan's Subclass 309 visa application, the Tribunal notes the following comments of Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at para [35]:

Evidence of events subsequent to the visa application is relevant if it 'tends logically to show the existence or non-existence of facts relevant to the issue to be determined': see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

1. Further, the Federal Court of Australia has accepted in Re MILGEA and Dhillon [1990] FCA 144 at para [11] that people enter marriages with a variety of purposes and motives, hopes and aspirations: it is not necessarily inconsistent with the genuine spousal relationship that a couple's marriage was entered into by one or both parties with a view to material benefit, such as the hope of becoming eligible to reside in a particular country. As noted by the Court, the 'true test, we would suggest the only test, is whether at the time the matter has to be decided it can be said that the parties have a mutual commitment to a shared life of husband-and-wife to the exclusion of others'.
2. In deciding this matter, the Tribunal has had regard not only to evidence lodged with the Department but also evidence provided to the Tribunal. It acknowledges that it has the benefit of receiving substantially more evidence than that which was available to the delegate, including oral evidence at the hearing as well as the documentation submitted by the representative both immediately before and after the hearing. As explained to the couple during the hearing, if the Tribunal had the benefit of the documentary evidence before it at the hearing, it may well have been able to make a favourable decision on the papers.
3. Having regard to the extensive evidence provided, the Tribunal finds that the couple gave wholly consistent oral evidence regarding the circumstances in which they met, the nature of their relationship and their living arrangements since they have lived together in China following their marriage and over the course of Mr Zhang's multiple trips to China and his remaining there for, typically, the period of 3 months as permitted by his Chinese Residence Permit. Oral evidence from Mrs Duan and Mr Zhang was given in an open and forthright manner, and is consistent with documentation previously provided to support Mrs Duan's Subclass 309 visa application. The Tribunal also acknowledges the independent oral evidence at the hearing from Mrs Peate and Xiao Feng Duan confirms evidence provided by each of the couple.
4. As noted in the delegate's decision, concern was expressed regarding the multiple shortcomings in evidence lodged with the Department despite 3 requests issued pursuant to s 56 of the Act for the couple to provide further documentation. Based on the extensive evidence provided to the Tribunal, the couple have satisfactorily addressed the shortcomings identified by the Department and provided evidence address the delegate's concerns set out in their decision record.

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
2. The Department's file contains a copy of the couple's Certificate of Marriage in Mandarin together with a certified copy English translation thereof. Based on this evidence, the Tribunal is satisfied that Mr Zhang and Mrs Duan registered their marriage with the Chongqing Civil Affairs Bureau on 20 April 2017.
3. Having regard to the evidence provided, the Tribunal accepts that the couple have registered their marriage in China and that they are validly married for the purposes of s 5F(2)(a) of the Act at the time of application, and that they continue to be married to each other as at the time of this decision.

Are the other requirements for a spousal relationship met?

1. The next issue for consideration is whether the parties meet the other requirements of a spousal relationship.
2. In forming an opinion on the matters required in s 5F(2)(b) - s 5F(2)(d) of the Act, regard must be had to all of the circumstances of the claimed relationship. This includes the factors identified in reg 1.15A(3) of the Regulations and any other circumstances relevant to the relationship under reg 1.15A(2) of the Regulations. The factors in reg 1.15A(3) of the Regulations are: the financial aspects of the relationship; the nature of the household; social aspects of the relationship; and the nature of the persons' commitment to each other.
3. The Tribunal acknowledges there is a substantial amount of documentary evidence of the couple's relationship that was not before the delegate. The Tribunal has given due regard to this evidence and the oral evidence at the hearing.

Financial aspects of the relationship: reg 1.15A(3)(a)

1. When considering the financial aspects of the claimed spousal relationship, the Tribunal is required to have regard to: the joint ownership of assets; any joint liabilities; the extent of pooling of financial resources; any legal obligations owed to the other party; and the sharing of day-to-day household expenses.
2. As noted in the delegate's decision, a copy of which was provided to the Tribunal, limited evidence was provided to the Department regarding the financial aspects of the couple's claimed spousal relationship. This was despite the delegate's multiple s 56 requests for information to address this requirement. No evidence was provided the couple have joint ownership of real estate, major assets, joint banking accounts, liabilities or major household appliances. The delegate acknowledged evidence of 3 money transfers from Mr Zhang to his wife in April 2019 as well as a further 3 transfers in March, May and June 2022. However, little weight was given to this evidence as the transfers did not occur on a regular basis and no explanation has been provided regarding the purpose of the transfers.
3. The Tribunal accepts that, initially, the couple lived together at Mr Zhang's mother's apartment in Fuzhou as independently confirmed by each of the couple and as set out in the multiple statements from family and friends. Mr Zhang told the Tribunal that, after his mother died on 17 January 2023, he sold her apartment in Fuzhou and the couple moved to live with Mrs Duan's family on their farm in Chongqing after a short say with her sister Xiao Feng Duan. The RMB 1.5 million fund from the sale of his mother's property was invested in stocks and a fixed-term deposit in China.
4. The Tribunal accepts Mr Zhang's also has investments in Australia which are in his own name. After the hearing, he provided evidence of a fixed term deposit of $250,000 (last 4 digits #3010) with UBank, a division of the National Australia Bank, which has earned interest of $10,680 in the current financial year to date. Evidence was also provided of the balance in Mr Zhang's Hostplus Superannuation Fund and his investment of $141,800 with publicly listed stockbroker CMC Markets Stockbroking Ltd based in Barangaroo.
5. In addition, the Tribunal has been provided with statements for Mr Zhang's Bank of China bank account 4 digits #8154 in the period 29 April 2024 to 23 April 2025 (Mr Zhang's BoC Account). The account confirms regular shareholder payments from Guotai Junan Securities Co Ltd (GYJA), a stock trading securities firm in China providing clients with investment and financing services, including receipt of RMB 438,500 (AUD 93,552)[2] from GYJA in this 12-month period to 23 April 2025. The bank statements provided also confirm multiple monthly transfers, typically in the order of RMB 10,00 per month, have been made from Mr Zhang's BoC Account to his wife Mrs Duan including RMB 250,000 in the period 12 - 26 November 2024 (in parcels of RMB 30,000 as permitted under Chinese banking law) to facilitate purchase of Mrs Duan's Tank 400 SUV motorcar. Mr Zhang's BoC Account statements also confirm he covers some of the couple's supermarket expenses as well as the purchase of electrical appliances and some of the couple's travel expenses both in China and overseas including hotel accommodation and flights.
6. Evidence has also been provided to the Tribunal of Mrs Duan's China Construction Bank account last 4 digits #7141 (the CCB Account) from 6 May 2024 to 12 March 2025 confirming regular transfers to and from Mr Zhang's BoC Account as set out above. Mrs Duan independently told the Tribunal that her husband transfers around RMB 10,000 to her every month to cover general household expenses, groceries, utilities and other general expenses. She added that she and her husband shop together and either he pays for purchases with Mr Zhang's BoC Account or she uses her credit card and then she transfers funds from the CCB Account to pay that off.
7. In terms of income earned in Australia, Mr Zhang told the Tribunal that he lodges tax returns with the Australian Taxation Office (ATO) confirming income from his fixed term deposit plus his share holdings and trading in shares. After the hearing, the representative provided copies of Mr Zhang's tax returns lodged with the ATO for years ended 30 June 2022 to 30 June 2024 confirming income earned in Australia from his investments in Australia. During his time living in Australia, Mr Zhang told the Tribunal that he managed to acquire 2 units (in Liverpool and Waterloo) but he has sold them both and re-invested the proceeds from those sales into shares. Relevantly, the Tribunal notes that Mr Zhang's tax returns confirm that he is also notified the ATO of his spousal relationship with Mrs Duan.
8. Based on the evidence provided, the Tribunal is satisfied that the financial aspects of the relationship of Mr Zhang and Mrs Duan are indicative of a couple in a spousal relationship, both at the time of lodgement of the visa application and at the time of this decision.

Nature of the household arrangements: reg 1.15A(3)(b)

1. The Tribunal is required to consider the nature of the parties' household including: any joint responsibility for the care and support of children; their living arrangements; and any sharing of responsibility for housework.
2. Whilst the delegate acknowledged that Mr Zhang and Mrs Duan had stated that they resided together with Mr Zhang's mother in Fuzhou and also spent time with his wife's family n Chongqing, no evidence was provided to the Department to substantiate these claims. Further, no evidence had been provided that the couple cohabited or that they share household responsibilities.
3. The Tribunal acknowledges that the couple currently live in Mrs Duan's family's property which is proximate to Hongtu Village, Chongqing (Hongtu Property). As explained during the hearing, the Hongtu Property comprises approximately farm land used by Mrs Duan's family to produce pigs, chickens and ducks. It also includes a 7-bedroom home where she and her husband live with her parents and her 18-year-old son. The Real Estate Title Certificate provided to the Tribunal (in Mandarin together with a certified copy English translation thereof) confirms that the 3-storey rural home of 381m² owned by Mrs Duan's father Houyong Duan was built in 2012. Copies of the Council approved construction plans were also provided to the Tribunal. In addition, the tribunal has been provided with multiple photographs of the Hongtu Property.
4. Many of the couple's family and friends who have visited them when they have been living together in China - with Mr Zhang's mother in her Fuzhou apartment until she died in February 2023, then for some time in the apartment in Nanchuan which is owned by Mrs Duan's elder sister Xiao Feng Duan before relocating to Mrs Duan's extended family home at the Hongtu Property - have provided Forms 888 confirming they have visited the couple at their respective homes. As noted above, prior to the hearing, Forms 888 signed 1 May 2025 from each of Mr Zhang's daughter Mrs Peate and Mrs Duan's sister Xiao Feng Duan confirm that they have visited the couple at their successive homes. Each of Mrs Peate and Xiao Feng Duan echoed statements in their respective Form 888 in oral evidence at the hearing.
5. During the hearing, the Tribunal noted the absence of any statement from Yuan Chen. The couple were shocked to hear that the representative had not submitted to the Tribunal the statement prepared by Yuan Chen, which they independently confirmed Yuan Chen had typed up himself and they had arranged to have translated after the delegate's decision. The representative apologised profusely for failing to lodge Yuan Chen's statement with the AAT. He accessed his clients' file online and then submitted Yuan Chen's statement during the hearing.
6. In his undated statement made in 2023, Yuan Chen states that his mother and Mr Zhang have been 'married now for 6 years' and, at that time, he was still in primary school. He adds that his parents would typically pick him up after school but sometimes it was just his stepfather. Yuan Chen warmly adds that when his stepfather returns to Australia or goes to other places overseas (to reactivate his 3-month temporary Residence Permit), he brings back gifts including red envelopes. When his stepfather is in Chongqing, his stepfather does the housework, laundry and cooking and, when Yuan Chen has been to his stepfather's mother's home in Fuzhou, his stepfather always arranged the travel plans to enable him to get there. His grandparents love preparing a lot of local fresh chicken and duck from their farm for Mr Zhang to celebrate his arrival in Chongqing when he comes to visit the family there.
7. In relation to the couple's separation during the COVID-19 pandemic, Yuan Chen opines that his stepfather really had no choice due to China's visa limitations at that time. Because his mother had not yet obtained a visa for Australia, sadly, they were separated for over 2 years but, despite this, they still had video calls on WeChat every single day.
8. Yuan Chen has provided an updated Form 888 signed on 6 May 2025. He warmly attests to the couple's first meeting again when his stepfather returned to China after international boarders opened after the COIVD-9 pandemic and his stepdad do to quarantined in a hotel for 10 days. Yuan Chen concludes his updated Form 888 statement observing that his stepfather and his mother came to his high school on 25 April 2025 to attend his coming-of-age ceremony and his stepfather prepared a special gift box for him.
9. In addition, the Tribunal has been provided with 6 other updated Forms 888 (with signed attachments in Mandarin together with certified copy English translations thereof) from the family members and friends set out at para [57] below confirming that the declarants have visited the couple at their various households. Evidence of the declarant's signature has also been provided.
10. Having regard to the evidence provided, including oral evidence from all parties attending the hearing, the Tribunal is satisfied that the nature of the couple's household at the time of application is indicative of a couple in a spousal relationship at the time of lodgement of Mrs Duan's Subclass 309 visa application and that this continues to be the case at the time of this decision.

Social aspects of the relationship: reg 1.15A(3)(c)

1. In its consideration of the social aspects of the parties' relationship, the Tribunal is required to consider: whether the 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 persons plan and undertake joint social activities.
2. The delegate noted only one Form 888 had been lodged with the Department. It was provided by Mrs Peate's husband Jonathan Peate, who confirms he is aware of the couple's relationship. Photographs had been provided showing the couple in the presence of third parties but it was not clear to the delegate that any of the images show the couple in the presence of Mrs Duan's family and friends in China as none of the photographs had been captioned. Relevant to the delegate's consideration of the social aspects of the couple's relationship, no family members or friends in China provided a Form 888. Further, there is no evidence that the couple's marriage was celebrated publicly.
3. The couple independently told the Tribunal that, after registering their marriage in Chongqing, they lived together at Mr Zhang's mother's apartment in Fuzhou, following her death, they moved to live at Mrs Duan's family home on their farm in Chongqing after a short stay with her elder sister. Multiple captioned photographs have been provided of the couple with family and friends at both Mr Zhang's mother's apartment and their current home on the rural property which they share with Mrs Duan's parents and her son. In addition, the Tribunal has been provided with Mr Zhang's Registration Voucher of Residents for Visitors from Overseas confirming that he is registered to stay at Mrs Duan's family home in Hongtu Village, Chongqing.
4. As noted above, the Tribunal has been provided with updated signed Forms 888 from Mrs Duan's sister Xiao Feng Duan dated 1 May 2025 and Mr Zhang's daughter Linda Peate sworn 1 May 2025 confirming the genuineness of the couple's spousal relationship and the support that the couple have provided to each other following their marriage. Each of Xiao Feng Duan and Linda Peate attended the hearing and echoed evidence in their respective Form 888.
5. In addition, the Tribunal has been provided with updated signed Forms 888 and statements from the following family members and friends of the couple who warmly attest to their genuine and enduring spousal relationship:
   1. Tao Chen dated 6 May 2025. Mr Chen lives in Sydney as a permanent resident having arrived on a Subclass 457 sponsored employee visa and has known Mr Zhang since they were classmates together at Fuzhou University. Their friendship deepened through a joint investment in a convenience store in Oxford Street and Mr Zhang asked Mr Chen to help him manage the store.

It was during Mr Zhang's mother's birthday celebrations that he met Mrs Duan in Fuzhou and he is so pleased that his friend now has met someone who will care for him wholeheartedly.

Mr Chen also notes that he and Mr Zhang are both members of the Sydney Huaxia Harvest Christian Church and he really hopes that his church brother can reunite in Australia with Mrs Duan.

Captioned photographic evidence of the Sydney Huaxia Harvest Christian Church's brothers and sisters on 29 October 2023 - the day Mr Zhang was baptised - have been provided together with members of Mr Zhang's family including his sister Wenjun Zhang and her husband Shujin Wu at Mr Zhang's mother's birthday celebrations.

1. Xuanpeng Long dated 3 May 2025. Mr Long is Mrs Duan's nephew. He confirms that over the past 8 years, whenever his step-uncle has been in China, the couple have always lived together.

Mr Long acknowledges that his step-uncle is very generous and always purchases chocolates and special things for him and his cousin Mr Zhang's mother's birthday celebrations when he comes back from Australia. He also regularly purchases health supplements such as fish oil for Mrs Duan's parents. During Chinese New Year, he would always carefully buy fireworks and celebrate the holiday with the whole family.

After his step-uncle's mother died, his aunt Mrs Duan and his cousin Mr Zhang's mother's birthday celebrations have become Mr Zhang's special attachments to China.

1. Shujin Wu dated 6 May 2025. Mr Wu is married to Mr Zhang's sister. He confirms that it was during the Qingming Festival in 2017 that he first met Mrs Duan. He and his wife have moved to Shanghai to reunite with their son but he often gets together with the couple to play mahjong and cards.

In the Spring festival 2024, he and his wife travelled to Chongqing to spend time with the couple. In March 2025, when Mr Zhang's daughter Linda Peate came from Australia with her husband Jonathon and child AJ, the couple drove up to Shanghai from Chongqing to meet with everyone. Captioned photographic evidence of the get-together was provided.

1. Xiuwei Yang dated 6 May 2025. Xiuwei Yang is a friend of Mrs Duan's since their time together in Fuzhou going back to 2007. She recalls Mrs Duan lived with Mr Zhang and his elderly mother's apartment when she was living in the Gulou District which is not far from that apartment.

During COVID-19 when Mr Zhang had to return to Australia, Xiuwei Yang states that whenever she visited Mr Zhang's mother's apartment, she observed that Mrs Duan took meticulous care of her husband's elderly mother including playing mahjong with Mr Zhang's mother.

1. Xianguan Zhang dated 6 May 2025. Xianguan Zhang is a Chinese government employee who is a long-standing friend of Mrs Duan.

He attended wedding celebrations in Fuzhou in September 2018 of Mrs Duan's daughter-in-law Mrs Peate and Jonathon Peate. Xianguan Zhang warmly states that he has observed the couple's relationship withstand the test of their long-distance separation, especially, during the COVID-19 pandemic. He confirms the couple visited his plum farm in September 2018 and helped him pick plums as evidenced by the photographic evidence provided.

Evidence of the person's signature as confirmed in their Citizen Identity Card, Chinese passport or Australian passport has also been provided.

1. Without exception, all of the statements from family members and friends both in China and Australia confirm that the person making the statement has visited the couple during their time together in China. A number of the photographs of the couple provided include Mr Zhang's ageing mother including the photograph of the couple together with his mother and other members of his mother's family visiting a restaurant in Fuzhou on 17 November 2017 and celebrating her birthday on 21 November 2019. The Tribunal also acknowledges that it has also been provided with dozens of captioned photographs of the couple holidaying together in China, Hong Kong, Taiwan, Japan and Bali as well as evidence of hotel bookings and receipts.
2. In addition, as noted above at para [41], the Tribunal has been provided with Mr Zhang's tax returns which confirm that he has notified the ATO of his spousal relationship with Mrs Duan.
3. Having regard to evidence provided, in particular, the Forms 888 and Statements referred to above as well as the extensive range of captioned photographs, the Tribunal is satisfied that the parties represent themselves to other people as being married to each other and that the social aspects of the relationship support a finding that they were in a genuine spousal relationship at the time of lodgement of Mrs Duan's Subclass 309 visa application and that this continues to be the case as at the time of this decision.

Nature of the persons' commitment to each other: reg 1.15A(3)(d)

1. In its consideration of the nature of the persons' commitment to each other the Tribunal is required to consider: the duration of the relationship; the length of time the parties have lived together; the degree of companionship and emotional support they draw from each other; and, whether they see the relationship as long term.
2. The delegate acknowledge receipt of a 'Letter of Commitment' stating that the couple have tried IVF twice in hospitals located in Chongqing and Fuzhou. However, no official evidence had been issued by the hospitals and, accordingly, little weight was afforded to this statement by the couple. Further, the delegate noted that the WeChat communication records provided for the 6 months from 31 March - 18 September 2017 do not demonstrate the couple conversed frequently, or in-depth. No evidence was provided of the couple's communications following Mr Zhang's return to Australia on 14 June 2020 following the onset of the COVID-19 pandemic. The delegate opines that Mr Zhang chose to leave his wife during the international travel bans when a reunion was unforeseeable. When considered together with the absence of other evidence, the delegate was not satisfied the couple are in a genuine spousal relationship.
3. The couple have been married for more than 8 years and have lived together in China throughout this time apart from the near 2½ years during the COVID-19 pandemic as well as 9 months from mid-April 2023 to 29 January 2024 when Mr Zhang returned to Australia. The Tribunal places substantial weight on the length of the couple's relationship and their time together in its consideration of their commitment to each other.
4. To address the concerns raised by the delegate, communication records between the couple to confirm the frequency and nature of their communications when they are apart. The couple have also provided evidence of Mrs Duan's IVF treatments at the First Affiliated Hospital of Chongqing on 26 November 2017 and the Fujian Maternity and Child Health Hospital on 13 July 2018, 24 September 2018 and 25 September 2018. Evidence was also provided of flight bookings at the various holiday resorts of the couple have stayed with over the years. Since getting married, the couple have travelled together to many places including domestically to Chengdu, Guilin, Hainan and Hong Kong. They have also travelled to Taiwan, Bali and Japan as confirmed by the multiple airline tickets, passport stamps and hotel booking receipts provided.
5. During the course of the hearing, each of the couple demonstrated a detailed knowledge of each other's families and daily routines. As noted above, the couple initially lived with Mr Zhang's mother in her apartment in Fuzhou, then they moved to live with Mrs Duan's sister Xiao Feng Duan for a short period before relocating to live in the rural homestead of Mr Duan's family in Hongtu Village.
6. Mr Zhang and Mrs Duan have provided the Tribunal with lengthy statements setting out the history of their spousal relationship, the ups and downs they have faced throughout the past 8 years and their plans for the future. They each gave consistent oral evidence regarding their plans for the future. This includes travelling to Australia once Mrs Duan's son Yuan Chen completes his college entrance exams and starts the next phase of his life. Initially, they plan to spend time with Mrs Peate at her 5-bedroom home in Pennant Hills and help her with her young family given she is expecting another child in late July 2025. They intend to buy an apartment together and will sell any of their Chinese assets to make this happen. It is Mrs Duan's plan to integrate with the Australian society but by participating in community activities.
7. The Tribunal has been provided with copies of the signed Wills for each of Mrs Duan and Mr Zhang dated 17 December 2022 leaving each of their respective assets to each other. The executor of Mrs Duan's Will is her sister Xiao Feng Duan and the executor of Mr Zhang's Will is his daughter Mrs Peate.
8. Based on evidence provided, the Tribunal accepts the couple's relationship is long term and that they rely on each other for companionship and emotional support. It is satisfied that the nature of the parties' commitment to each other is indicative of a couple in a spousal relationship as at the time of lodgement of Mrs Duan's Subclass 309 visa application and that they continue to be in a spousal relationship at the time of this decision.

1. Having regard to the decisions in Jayasinghe v MIMA [2006] FCA 1700 and Re MILGEA and Dhillon [1990] FCA 144 referred to above at paras [24] and [25], and based on the evidence provided as to the financial and social aspects of the couple's relationship as well as the nature of their household arrangements and their evidently strong commitment to each other, the Tribunal is satisfied that, at the time of application, Mrs Duan and Mr Zhang were in a genuine spousal relationship and, at the time of this decision, this continues to be the case. The Tribunal is also satisfied that the couple do not live separately and apart on a permanent basis. Having regard to the above, the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met at the time the visa application was made and at the time of this decision.
2. Therefore, Mrs Duan meets cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.
3. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to enable consideration of the remaining criteria for a Subclass 309 visa.
4. The application of Yuan Chen is based on his being a member of the family unit of a person who meets the primary criteria. As such, his application will be determined by reference to the outcome of his mother Mrs Duan's application on remittal to the Department for reconsideration.

1. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the visa applicant Mrs Xiao Min Duan 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.

Representative for the Applicant: Mr Shjing Zhang

ATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994

Migration Act 1958

(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

(2) For the purposes of subsection (1), persons are in a married relationship if:

(a) they are married to each other under a marriage that is valid for the purposes of this Act; and

(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

(c) the relationship between them is genuine and continuing; and

(d) they:

(i) live together; or

(ii) do not live separately and apart on a permanent basis.

(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

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).

Schedule 2 - Subclass 309 -- Partner (Provisional)

"intended spouse" means the person referred to in subparagraph 309.211(3)(a)(i), (ii) or (iii).

Note: eligible New Zealand citizen and guardian are defined in regulation 1.03, parent is defined in subsection 5(1) of the Act (also see regulation 1.14A), de facto partner is defined in section 5CB of the Act (also see regulation 1.09A), and spouse is defined in section 5F of the Act (also see regulation 1.15A).

309.21 - Criteria to be satisfied at time of application

309.211 (1) The applicant meets the requirements of subclause (2) or (3).

(2) The applicant meets the requirements of this subclause if the applicant is the spouse or de facto partner of:

(3) The applicant meets the requirements of this subclause if:

(b) the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.

Note: If the applicant is an applicant referred to in subclause 309.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 309.224.

309.212 (1) The spouse, de facto partner or intended spouse of the applicant is not prohibited by subclause (2) from being a sponsor.

(2) The spouse, de facto partner or intended spouse is prohibited from being a sponsor if:

(b) the spouse, de facto partner or intended spouse is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and

(i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or

(ii) the applicant was the spouse or de facto partner of that woman and that relationship had not been declared to Immigration.

309.213 (1) If the applicant is an applicant referred to in subclause 309.211(2), the applicant is sponsored:

(a) if the applicant's spouse or de facto partner has turned 18--by that spouse or de facto partner; or,

(b) if the applicant's spouse has not turned 18--by a parent or guardian of that spouse who:

(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

(2) If the applicant is an applicant referred to in subclause 309.211(3), the applicant is sponsored:

(a) if the applicant's intended spouse has turned 18--by that intended spouse; or

(b) if the applicant's intended spouse has not turned 18--by a parent or guardian of that intended spouse who:

(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

309.22 - Criteria to be satisfied at time of decision

309.221 The applicant continues to satisfy the criterion in clause 309.211.

309.222 The sponsorship referred to in clause 309.213 has been approved by the Minister and is still in force.

Note: Regulations 1.20J, 1.20KA and 1.20KB limit the Minister's discretion to approve sponsorships.

309.223 In the case of an applicant who meets the requirements of subclause 309.211(2), the applicant continues to be the spouse or de facto partner of the person referred to in paragraph 309.211(2)(a), (b) or (c) who was the applicant's spouse or de facto partner at the time of the application.

309.224 If the applicant is an applicant referred to in subclause 309.211(3), the marriage referred to in that subclause has taken place and the applicant continues to be the spouse of the intended spouse.

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021 ; and

(b) if the applicant had turned 18 at the time of application -- satisfies public interest criterion 4019.

309.226 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.

309.228 (1) Each member of the family unit of the applicant who is an applicant for a Subclass 309 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4020; and

(aa) if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and

(b) if the person has previously been in Australia, satisfies special return criteria 5001 and 5002.

(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 309 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and

(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

309.229 If a person (in this clause called the additional applicant):

(a) is a member of the family unit of the applicant; and

(c) made a combined application with the applicant-- public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.

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