1420627 (Migration) - [2016] AATA 4967

1420627 (Migration) [2016] AATA 4967 (18 August 2016)
DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1420627
MEMBER:Katie Malyon
DATE:18 August 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 18 August 2016 at 9:54pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner Temporary) – insufficient evidence of a de facto relationship – relationship breakdown in the first 12 months –unregistered de facto relationship– Review applicant feared ex-husband – Review applicant unable to recall relationship details – inconsistent evidence about living arrangements –compassionate or compelling reasons – Review applicant’s mental condition – visa applicant resigned from job to come to Australia – decision under review affirmed
PRACTICE AND PROCEDURE – hearing postponed due to applicant’s medical condition – documentation submitted post hearing – claims some supporting documents are lost
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03, 2.03A Schedule 2 cls 820.211, 820.221
CASES
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Pochi (1980) 4 LD 139
Truong v MIBP [2014] FCA
Nepal v MIBP [2015] FCCA 305
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision by a delegate of the Minister for Immigration on 27 November 2014 to refuse to grant [Mr A] a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
[Mr A] applied for the visa on 26 June 2013 on the basis of his relationship with his sponsor, Australian citizen [Ms B]. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa on the basis that [Mr A] did not satisfy cl.820.211(2) of Schedule 2 of the Regulations because there was insufficient evidence that the parties had been in a de facto relationship for the 12 month period before the visa application. The delegate was not satisfied that there were any grounds to waive the 12 month requirement. A copy of the delegate’s decision was provided to the Tribunal together with the review application (the Delegate’s Letter).
The issues that arise in this case are:
·First, whether [Mr A] and [Ms B] were in a genuine de facto relationship at the time of lodgement of the visa application; and, if so,
·Second, whether [Mr A] and [Ms B] had been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application; and, if not,
·Third, whether there are compelling and compassionate circumstances for the grant of the visa.
Hearing
[Mr A] appeared before the Tribunal by video conference from [City 1] on 8 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]’s brother, [Mr C], and his friend [Mr D] by way of video conference. In addition, the Tribunal received oral evidence by teleconference with [Ms B] who is also in [City 1]. The hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages. Only [Mr A] needed to use the services of the interpreter.
A hearing was scheduled for 26 July 2016. However, this had to be postponed when [Mr A] was admitted to [City 1] Hospital on the morning of the hearing suffering acute chronic dizziness and chest pain. A hospital report from the Resident Medical Officer of [City 1] Hospital was provided to the Tribunal by [Mr A]’s brother, [Mr C].
Before the rescheduled hearing on 8 August 2016, the Tribunal received a variety of documents. These included:
·     A Psychological Report from [State 1] Clinical Psychologist [Dr E] dated 20 February 2016 confirming [Mr A] suffers from Generalised Anxiety Disorder;
·     A medical report from [Dr F] dated 19 July 2016 stating that [Mr A] was in a motor vehicle accident in May 2014 and has suffered a number of complications since including dizziness, vertigo and chronic back pain;
·     A Statement from [Mr A] dated 29 July 2016 confirming that the representative he engaged following receipt of the Department’s refusal letter had since left her employment and that he was in discussion with her former employer in an effort to locate the original documentation he had provided to his former representative. [Mr A] also made reference to his medical condition as outlined in the letter from [Dr F]; and,
·     A Statement from [Mr A] dated 31 July 2016 attaching a further Psychological Report from [Dr E] dated 14 April 2016, assorted documentation in relation to his relationship with [Ms B] including correspondence addressed to [Mr A] at the home he lived in with [Ms B] in [Suburb 1] and [Mr A]’s tax return for the year ended 30 June 2014.
Further details of these documents are discussed below.
[Mr A]’s evidence
[Mr A] told the Tribunal that any of his comments at the hearing were in addition to those made in his Statement of 31 July 2016. By way of context and having regard to the paucity of documentation in the Department’s file, in his Statement of 31 July 2016 [Mr A] states:
·     After he lodged his Partner visa application at the end of June 2013 he started work with [a business]in [Suburb 2]. He took his pay in the form of cash and money was shared with [Ms B] for their daily life expenses. [Ms B] is aware of all of this.
·     His unfamiliarity with Australia law regarding joint accounts and financial aspects (of a spousal relationship) are due to his due to his poor English.
·     [Ms B] was very much limited in what she could do and was so careful because she was scared of her ex-husband for a long time. He was violent and court proceedings (were on foot). [Ms B] believed if her ex-husband could know anything about her, he would use it against her in the courts.
·     He took his design to start a new life with [Ms B] and leave his job in[Organisation 1]. It was difficult for him to lodge his Partner application due to his poor English and so he sought help from his friend [Mr D]. After the Department wrote to him in November 2014, they realised [Mr D] had made some mistakes in the application form. [Mr D] is witness to that.
·     Following [Ms B]’s return to Australia after going to Jordan for her mother’s funeral they contacted each other by mobile and Skype. He started to live with [Ms B] in February 2013.
·     In May 2014, he was involved in a motor vehicle accident and admitted to hospital for 2 weeks. It left him with some serious medical conditions which have affected his life and his relationship with [Ms B]. Since then, he has not worked. Before the accident, his life with [Ms B] was stable and worm (sic).
·     After his accident, [Ms B] became more depressed and could not control herself. She became violent, verbally abusive and threatened him in many different ways.
·     [Ms B] has suffered a number of issues in her life and he was supportive of her. In July 2013 she was referred to a Psychologist. A report dated 12 December 2014 from[Ms G], a Registered Psychologist in [City 1 suburb], is attached. The report notes [Ms B]’s attendance at 10 sessions of counselling following a referral in June 2013. She is a mother of [several] children. The report confirms [Ms B] has experienced a number of highly traumatic events affecting her and her family, she presents with symptoms including anxiety, depression, social avoidance, emotional withdrawal, disassociation, re-experiencing of traumatic material and poor memory. [Ms G] diagnoses chronic Post Traumatic Stress Disorder with anxiety and depression. The report from [Ms G] refers to [Mr A], whom [Ms B] describes as her de facto and a friend of her brother, as caring. [Ms B] trusts him. The report notes he accompanied [Ms B] to 2 of her 10 counselling sessions. [Ms G] notes [Ms B]’s need for connection and security: she strongly recommends that efforts be made to enable [Mr A] to remain in Australia.
·     The Crisis Management Team has attended [Ms B]’s home on a number of occasions when she was unwell. [Mr A] describes these times as painful for him as well as for [Ms B] and that he felt sorry for her.
·     When he received an email from the Department on 1 August 2014 requesting further information about the relationship, he discussed this with [Ms B] but she was suffering from her medical condition and it was difficult to put any pressure on her or require her assistance preparing documentation. At the time, she believed her ex-husband could reach her documents and she was scared of him.
·     Owing to the medical conditions of [Mr A] and [Ms B] as well as his poor English, he engaged a registered migration agent to assist respond to the Department’s email. He took a number of original documents to his agent. They remain at the agent’s office even though his agent has left her employer. [Mr A] says he has attached copies of the documents that he still has with him including: a joint bank statement with [Bank 1] dating from November 2014 (the Tribunal notes this was not attached); registration of the relationship at Centrelink from November 2014; rent rebate notice (undated) from the [State 1] Government noting [Mr A] as [Ms B]’s ‘partner’ and [a]Club Membership cards for each of [Mr A] and [Ms B] from November 2015. Copies of documents, other than the [Bank 1] statement, are attached to [Mr A]’s Statement. In addition, [Mr A] claims he had more than 50 documents from 2013 including letters, car registration, bills and his tax return confirming his address at [Suburb 1] where he lived with [Ms B].
·     His representative did not lodge documentation with the Department as the delegate refused his representative’s request for an extension of time in which to provide the documentation.
·     [Ms B] refused to register the couple’s relationship with [State 1] Registry of Births Deaths and Marriages (BDM Registry) out of fear of her ex-husband. [Mr A] tried to reason with [Ms B] but she commented that her ex-husband would threaten her.
·     [Ms B]’s Psychologist, [Ms G], left [City 1] in December 2014. [Ms B] stopped taking her medication and became more anxious and started talking about life and death. One morning, she woke [Mr A] at 3:00 am with a knife in her hand and asked him to end their lives. He managed to control the situation and calm her down. In the morning, he talked to her children who understood her medical condition.
·     He reached the point where he felt serious risk (sic). He discussed the situation with his brother who recommended [Ms B] see a new Psychologist. She refused.
·     [Mr A] left the home in [Suburb 1] at the end of February 2015. He became depressed and anxious and was referred by his GP to Clinical Psychologist,[Dr E]. [Dr E]’s report of 14 April 2016 is attached. The report notes [Mr A] meets criteria for Generalised Anxiety Disorder. [Dr E] says she understands that the motor vehicle accident contributed to [Mr A] being unable to work which indirectly contributed to his relationship breakdown. As a result, [Mr A] felt threatened and developed a generalised anxiety disorder.
[Mr A] told the Tribunal that, essentially, he did not know the law about needing to be in a de facto relationship for 12 months or registering his relationship with [Ms B] at the [State 1] BDM Registry because he “does not speak much English”. The Tribunal noted that [Mr A] had the benefit of a brother who lives in [City 1] who speaks English as well as access to the Department’s website which contains information on Partner visas in Arabic. It noted he could also have visited the Department for advice or sought professional advice from a registered migration agent. [Mr A] replied: “That’s right”. He added he was aware of the expiry date of his second 3 month Visitor visa (on 4 July 2013) and his friend [Mr D] helped him complete his Partner visa application as his brother was “too busy with work and his daughter”.
The Tribunal asked [Mr A] about his relationship with [Ms B]. He told the Tribunal that he has been in a relationship with [Ms B] since 2012 when she returned to Jordan for her mother’s funeral. He clarified that it was not a de facto relationship then: rather, he was merely a family friend, especially of her brother. [Mr A] decided to come to Australia to visit his brother and “make it a surprise for her”. He said he started to live with [Ms B] in February 2013 but, at that time, there was not a full commitment: rather, they “were living together as friends”. It was not until June 2013 that they decided to live together and that’s when [Mr A] resigned from being an officer in [Organisation 1]so that he could stay in Australia. He told the Tribunal he had discussed the situation with [Ms B] and it was she who told him that, if he wanted to stay legally, get a driver’s licence and access medical services, open a bank account and get a job “so that everything was legal in Australia” he needed to “get off his Visitor visa”.
The Tribunal noted that that [Mr A]’s evidence to the Tribunal was inconsistent with information in the Department’s file. In his Form 47 Application for Migration to Australia by a Partner lodged on 26 June 2016 he states that they decided to commit to each other on 10 April 2013. [Mr A] replied it was an “emotional relationship” and “not limited to starting on one particular date”. He added that, when he came to Australia with his brother, he “had in mind making her a surprise” so that he “could continue my life with [Ms B], if she agreed”. He added “in the beginning, it was an intimate friendship” but then, later, he decided to make a “full commitment” and that’s when he decided to resign from the [Organisation 1]. [Mr A] indicated he could have gone back to Jordan to have [Ms B] sponsor an offshore Partner visa for Australia, but it was “a lot easier to apply here” because he was already here.
With a view to establishing when the couple began to live together, the Tribunal asked [Mr A] why it was that in his application Form 47SP he indicates that his address at the time is in [Suburb 3] but, in her Form 40SP Sponsorship for a Partner to Migrate to Australia, [Ms B] gives her address as in [Suburb 1]. He replied “that’s true, I did live with my brother (in [Suburb 3]) but, most of the time, I lived with [Ms B], stayed at her house and we went out together”. He justified the [Suburb 3] address in his 47SP on the need to “spend at least some time” with his brother and his brother’s young daughter. [Mr A] clarified that he “cannot give the Tribunal exact dates” when he moved in with [Ms B] because “it was all part of the beginning of the relationship” and, it was really only when he resigned from [Organisation 1] in June 2013, that the commitment was made to stay in Australia with [Ms B]. Later in the course of the hearing, [Mr A] confirmed that, at the time he lodged his Partner visa application, he was living with his brother and that he moved in with [Ms B] after he lodged the application.
[Mr A] told the Tribunal that his relationship with [Ms B] has since ended. He explained he tried to help her with her medical condition but it became worse after his motor vehicle accident and the relationship collapsed. He said they are now just friends.
The Tribunal then discussed with [Mr A] the indicia of a de facto relationship as set out in r.1.09A of the Regulations. This provision is extracted in the Annexure to this decision. Initially, discussion revolved around social aspects of the relationship such as evidence that the parties have declared the relationship to government and commercial/public institutions or authorities as well as statements from family members and friends. [Mr A] had provided some documentary evidence in this regard to the Tribunal.
In relation to the parties’ failure to register their relationship with the [State 1]’s BDM Registry (the common means adopted by couples to overcome the 12 month rule for de facto relationships) [Mr A] explained that [Ms B] “had a problem with her ex-husband, a very serious problem, and she was still scared of him”. He said, at the time, there was “still in issue in court” and she had an Apprehended Violence Order (AVO) against him. The Tribunal noted information from the [State 1]’s BDM Registry website[1] that details about a registered relationship are confidential and accessible only to the parties of that relationship. The Tribunal noted this raised doubts as to why, especially having regard to the fact that [Ms B] subsequently registered the relationship with other government agencies in late 2014, they did not register the relationship with the [State 1]’s BDM Registry before lodgement of his Partner application on 26 June 2013. [Mr A] said he was “unaware of privacy provisions” in this regard and, with the benefit of hindsight, he wishes that he and [Ms B] knew about this. He reiterated comments in his Statement of 31 July 2016 referred to above that he could not impose himself upon her to register the relationship with the [State 1] BDM Registry because of [Ms B]’s medical condition. [Mr A] also added that living with [Ms B] (when not married to her) was “against our culture because it’s not ethical and not socially accepted, so we just kept it at that“. This raised doubts in the mind of the Tribunal as to whether the parties ever lived together in a genuine de facto relationship.
[1] [Source deleted]
[Mr A] confirmed that the couple’s relationship had been registered with other government agencies such the [State 1] Housing Commission, Centrelink, Medicare and the [State 1]’s car registry. He said even though Centrelink did not issue any confirmation until November 2014 he did tell them he lived with [Ms B] from 2013 and has records of his paying money to Centrelink and the [State 1] Housing Commission. The Tribunal observed the absence of any records confirming these claims to which [Mr A] said he had “documentation in front of me” (at the venue for the video conference) and that “some of them” confirm that the de facto relationship was in place when his Partner visa application was lodged on 26 June 2013. The Tribunal provided [Mr A] additional time to provide documentation to the Tribunal by Express Post. Some documents were received from [Mr A] after the hearing. The earliest documents are both dated 3 June 2014 and give [Mr A]’s address in [Suburb 1]. One letter confirms an appointment on 20 June 2014 at 9:15 am with a Physiotherapist at [a specific location] and the other document is [a State 1 form]. All other original documents submitted after the hearing (including [Mr A]’s bank statements with [Bank 2] and assorted Medicare statements are addressed to him at the [Suburb 1] property) are dated after 3 June 2014.
Prior to the hearing, [Mr A] lodged a copy of his tax return to the ATO for the year ended 30 June 2014. He said he used a tax agent to assist him with the return. The Tribunal noted its concerns that both [Ms B]’s first name and her surname had been misspelt. Furthermore, although he names [Ms B] as his “spouse” for the whole of FY2013/14 in his tax return, he reports zero income (including Centrelink payments) for his claimed spouse. This raised doubts for the Tribunal that [Mr A] was in a de facto relationship with [Ms B] because it appeared the couple were not sharing financial information. [Mr A] justified misspelling [Ms B]’s first name and surname on the basis of his poor English. He justified his failure to report [Ms B]’s income, including Centrelink payments, on advice that he received from [Ms B] in this regard. He added she could have given him “wrong advice” because of the fact that “she was on medication”. [Mr A] then said “I’m going to clarify. I did not know she was getting money from Centrelink”. The Tribunal expressed its surprise and concerns regarding his claim to have lived in a de facto relationship with [Ms B] yet not know she was receiving Centrelink payments. [Mr A] replied by saying “I will forward all of the documents that I had in front of me to remove any doubts”. The Tribunal notes that the documentation received from [Mr A] after the hearing does not address the Tribunal’s concerns in this regard.

In relation to the financial aspects of the relationship [Mr A] said he was paid in cash and brought money home to share with [Ms B]. He added that although a joint bank account statement from [Bank 1] dated 26 June 2013 was lodged with the Department “that account has not been used since then”. Prior to the hearing, the Tribunal had requested it be forwarded updated copies of the couple’s joint bank account with [Bank 1] and statements from any separate bank account/s. No documentation was received in response to this request. [Mr A] said he and [Ms B] pooled their cash financial resources, including [Ms B]’s Centrelink payments. He told the Tribunal that there should be evidence in the file regarding his payment of electricity accounts for the [Suburb 1] property. The Tribunal confirmed that it had one [utilities]account dated 25 March 2015, that is, one month after [Mr A] says he moved out of the [Suburb 1] property.
[Mr A] told the Tribunal about the nature of the household at the [Suburb 1] property leased by [Ms B] from [State 1]Housing Commission. Initially, [Mr A] told the Tribunal that he shared the master bedroom with [Ms B] and that her children had the remaining 5 bedrooms. He then added there was a sixth bedroom that he occupied, a guest room. The Tribunal put to [Mr A] his inconsistent oral evidence that he had occupied the guest room as well as the master bedroom. He clarified he slept with [Ms B] in the master bedroom. The Tribunal noted the absence of any statements in support of the relationship from [Ms B]’s children notwithstanding they were also living at the [Suburb 1] property at the time [Mr A] claims he lived at in a de facto relationship with their mother. [Mr A] told the Tribunal he was not aware statements from [Ms B]’s children could be provided and undertook to provide the Tribunal with statements from [Ms B]’s adult children. No documentation has been received by the Tribunal. In relation to [Ms B]’s former husband (whom she divorced in 2005) [Mr A] said “[Ms B] had an AVO against her ex-husband” and, as a result, “he was not allowed to contact her”. In relation to her children, “they had to go to him”. [Mr A] said he and [Ms B] asked her children not to tell their father about [Mr A] living at their mother’s house.
In relation to the parties’ commitment as a de facto couple, [Mr A] said he “knows everything about [Ms B]”, including her” background and family situation”, both in Jordan and Australia. The Tribunal asked why, in his Form 47AP, he had requested all communication with him from the Department be sent to him at a PO Box in [a suburb], rather than indicating the [Suburb 1] address where he claims he was living in a relationship with [Ms B]. The Tribunal observed that this raised doubts in the mind of the Tribunal regarding his long-term commitment to the relationship. [Mr A] responded “I planned to use the PO Box until we settled down” and then added “I don’t not really understand the law”.
Later in the course of the hearing [Mr A] said he “planned to start a family with [Ms B]”. In light of [Ms B]’s mental health concerns, the fact that she had [several] children ranging in age from [age] to [age] years (all but one of whom lived at home in the [Suburb 1] with her) and the fact that [Ms B] was already [age] years old when he arrived from Jordan in January 2013, the Tribunal questioned [Mr A] further in relation to his comment regarding his desire to start a family with [Ms B]. He clarified that “what I meant was a social family”. He added that “to be a success in life, you have to be socially established by having a social family” and “although it would be possible to have maybe one child with her, I did not mean that I was planning to have children” with [Ms B]. He explained this “would not be a good idea because of her mental health”. In response to the Tribunal’s question regarding his current support of [Ms B], [Mr A] said that even though they are now separated “I am trying to comfort and encourage her to get on with her life. She is no longer seeing her Psychologist. She has stopped that”.
The Tribunal noted that it looked forward to receiving documentation from [Mr A] that he said was in front of him as it would assist satisfy the Tribunal of the existence of the de facto relationship as that 26 June 2013. The Tribunal also clarified that Express Post deliveries would ensure documentation would be delivered to the Tribunal within 48 hours. As noted above, no documentation was received from [Mr A].
In anticipation of receipt of documentation from [Mr A] that would assist satisfy the Tribunal of the existence of the de facto relationship as at 26 June 2013 the Tribunal asked [Mr A] to comment on the compelling and compassionate circumstances for grant of the visa as it appeared, on the basis of evidence provided to date and [Mr A]’s admissions at the hearing, that he and [Ms B] were not in a de facto relationship for 12 months prior to the time he lodged his Partner visa application on 26 June 2013. [Mr A] told the Tribunal that “I resigned from my position as an officer (with [Organisation 1]). This was a very important decision for me as it would change the course of my life”. He noted that if the Tribunal read [Ms B]’s medical reports it would “discover her condition is very bad” and that, because of this, he “could not put any more pressure on her” to register their relationship with [State 1] BDM Registry: she was “upset that her ex-husband might deprive her of seeing her children if he found out about the relationship”. [Mr A] also referred to his own medical condition following his motor vehicle accident in May 2014 and that, after the accident, he was “incontinent for 6 weeks. All of this meant I was not able to work and resulted in mental health problems for me” which, when “added to” [Ms B]’s mental health problems, led to the breakdown of the relationship.
[Mr A]’s brother’s evidence
[Mr C] told the Tribunal when his brother arrived in Australia in January 2013 he was not sure if his brother wanted to continue the relationship that he had with [Ms B]. He said in February 2013 the couple “started going out and thought a lot about this”. He agreed to help his brother with preparation of his the Partner visa application. It was news to him that a de facto couple must be in the relationship than 12 months. The first he heard of this was when the Department wrote to his brother: that was when his brother engaged the migration agent for the first time.
In his opinion and with the benefit of hindsight, “to be honest, it was a horrible mistake. The decision to leave Jordan was significant. If we were aware before of the requirements, maybe he would not have applied from within Australia”. He reiterated [Mr A]’s oral evidence to the Tribunal that [Ms B] did not register the couple’s relationship because she was “scared of her ex-husband” and she only registered the couple’s relationship with some government agencies after his brother saw his former registered migration agent for the first time in October 2014. He added “prior to this, the couple were in a de fact relationship but they were not in a hurry to speed up processing of the visa application” because his brother “hoped to be with [Ms B] for the rest of his life”. He noted that, in his opinion, [Ms B] has “changed completely from the person she was before”.
Regarding his brother’s relationship with [Ms B], [Mr C] said he knows his brother lived with [Ms B] and “they shared their lives, finances and dreams”. He explained how he had sent his brother’s former registered migration agent emails in relation to “the consequences” of his brother’s action of living with [Ms B]. [Mr C] explained Jordanian civil law prohibits de facto relationships which are punishable by jail for up to 7 years. He invited the Tribunal to search Google online for evidence of this law. The Tribunal reminded him that the obligation rests with his brother to satisfy the Tribunal of the compassionate and compelling circumstances as to why the Tribunal should waive the 12 month requirement for a de facto relationship, assuming that relationship existed at the time of application. [Mr C] then told the Tribunal that his brother has a problem with Jordanian [law] as well because his brother left his job in [Organisation 1]. This would not only mean he would lose his retirement income but also expose him to a prison term up to 5 years if it is determined he has chosen to live in a foreign country. In his opinion, he does “not understand how my brother could say he could return to Jordan”. He added “if [Ms B] has told family back in Jordan of the relationship then my brother can’t go back because her family and my family are neighbours”.
[Mr C] also told the Tribunal that his brother’s former registered migration agent had left her employer and this had compromised his application. Subsequent communications with the former agent’s employer indicated that the “file had been lost” which this meant that a lot of the original documentation provided to his former registered migration agent had not been provided, either to the Department or to the Tribunal.
[Mr D]’s evidence
[Mr D] told the Tribunal he had been to see [Mr A]’s former registered migration agent with his friend. He described multiple documents confirming the de facto relationship have been lost. [Mr D] noted that he and his friend and are considering a complaint to the Office of Migration Agents Registration Authority.
[Mr D] said he assisted [Mr A] complete the visa application form but that he did not see reference in the Form 47SP to the need for 12 months cohabitation if applying on a de facto basis. He added that although [Mr A] comes from an educated family (his brother [Mr C] in Australia is a [professional]and his brother in Jordan is [also a professional]) he ([Mr D]) is not so educated. He regretted not getting the benefit of professional advice in early 2013 so that the application could have been fully documented when lodged. [Mr D] echoed [Mr C]’s evidence to the Tribunal that, had [Mr A] known about the time of application criteria for an onshore Partner visa, he would have gone back to Jordan and applied there for his Partner visa. He added it would have also meant that his friend would not have had the motor vehicle accident which is been so debilitating.
In relation to the absence of documentation in support of the financial aspects of [Ms B]’s relationship with his friend, [Mr D] noted that “they both from a country where there are no bankcards and 99% of transactions are done in cash”. He told the Tribunal he had visited the [Suburb 1] in property a number of times together with [Mr A]’s brother (and his brother’s daughter) and observed the couple there.
[Ms B]’s evidence
[Ms B] told the Tribunal that, at the time of lodgement of [Mr A]’s Partner visa application, they were both in their “[age] and I wanted us to stay together”. She continued “now it doesn’t bother me because I’m finished. He’s left and he has his life alone. I couldn’t stay”. [Ms B] said “when his visa application was refused, it was the first time that I said I can’t continue with him”. She confirmed for the Tribunal the parties are no longer together, their “relationship is finished and I’m sick of all of this. I don’t know why I’m even involved in this case”. The Tribunal thanked of her time for contributing to the AAT’s review. She said she “was expecting the call”.
When the Tribunal discussed with [Ms B] the 12 month requirement for a de facto relationship or, in the alternative, registration at [State 1] BDM Registry at the time of application the [Ms B] said “I don’t know. I can’t remember. I’m sick. I take medication. It’s been a long time, 3 years”. She acknowledged she had registered the relationship with Centrelink and the [State 1] Housing Commission but had “no idea” why it was not registered with the [State 1]’s BDM Registry. [Ms B] said she “can’t remember” when [Mr A] moved into her home in [Suburb 1].
[Ms B] expressed some hesitation in discussing the sleeping arrangements in her house with the Tribunal. She asked “do I have to talk about these things? It’s kind of secret. I don’t want to lose my kids”. [Ms B] then volunteered that “my children never knew he was sleeping with me”. She said [Mr A] “slept in the lounge, on a couch”.
In relation to the functioning of her household when [Mr A] was living with her [Ms B] told the Tribunal that he helped with house work for a while. He did not pay rent but he did pay for food for the whole family. He helped her with her children, especially her youngest son (then [age] years old). She could not recall if they ever used a joint bank account. Asked about the couple’s plans for the future, if any, [Ms B] told the Tribunal “when I left him after his visa was refused all my dreams went flying. Now I have psychological issues, my son was in an accident. I can’t remember much”.
[Ms B] confirmed that her ex-husband lives in [City 1]. She said he “is very is close to his children”. Although she has sole custody, he has access to the children and comes to the house to see them “every fortnight. He also comes anytime that he really wants to”. She explained she divorced her ex-husband because of domestic violence incidents and then had an AVO against him. When [Ms B] was asked whether her ex-husband was aware of her relationship with [Mr A] she replied “no. When my ex-husband came over, he ([Mr A]) went into hiding. It didn’t happen every time. At night time, maybe yes. I really can’t remember”. She said she no longer has an AVO against her ex-husband: “that was years ago”.
Asked if she maintains contact with [Mr A] and he helps or assist in any way [Ms B] said “no. We’re not together. I have my daughter, [Ms H], who is my carer”. It is [Ms H] who gives her support when she needs it.
[Ms B] clarified for the Tribunal that she did not ever have any sense of being used by [Mr A] so that he could get a visa to remain in Australia.
[Mr A]’s further evidence
Arising from [Ms B]’s evidence, the Tribunal then put to [Mr A] some of the inconsistencies in the oral evidence received from her and his evidence provided earlier to the Tribunal. These inconsistences raised not only some concerns for the Tribunal regarding [Mr A]’s truthfulness but also whether a genuine de facto relationship was ever established as claimed by [Mr A], let alone at the time of application. [Mr A]’s responses to the Tribunal are discussed below.
Documentation received after the hearing
After the hearing, [Mr A] forwarded the Tribunal on 2 further statements by email on 10 August 2016. One statement from [Mr A] summarises, and includes downloads from, communications with his former registered migration agent. The other statement is from [Mr C] and summarises aspects of Jordanian law that his brother claims will impact on [Mr A] if he is forced to return to Jordan. The Tribunal also received a bundle of original documents comprising letters addressed to [Mr A] in [Suburb 1]. The letters are from [State 1] Road Transport Authority, [Bank 1], [Bank 2], [City 1] Hospital and Health Services, [utilities company]and Medicare. As noted above, the earliest of these documents dates from 3 June 2014. The latest dates from 25 March 2015, a month after [Mr A] says he left the [Suburb 1] property.
CONSIDERATION OF CLAIMS AND EVIDENCE
It is common ground that [Mr A]’s relationship with [Ms B] has ceased. The issues in this case are: first, whether the parties were in a genuine de facto relationship at the time of lodgement of the visa application; and, if so, whether [Mr A] and [Ms B] had been in their de facto relationship for at least the period of 12 months ending immediately before the date of the application; and, if not, whether there are compelling and compassionate circumstances for grant of the visa. All of these issues need to be satisfied before the other criteria for grant of a Partner visa can be considered.
Relevant law
Clause 820.211(2)(a) and clause 820.221 of Schedule 2 of the Regulations require that at the time the Partner visa application was made, and at the time of this decision, the 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, [Mr A] claims that at the time of application he was the de facto partner of his sponsor who is an Australian citizen.
‘De facto partner’ is defined in s.5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2) of the Act.
In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship and the nature of the parties’ household as well as their commitment to each other as set out in r.1.09A(3) of the Regulations. The provisions of r.1.09A of the Regulations are extracted in the Annexure to this decision.
Persons claiming to be in a de facto relationship for a Partner visa must also meet the additional criteria in r.2.03A of the Regulations. These are:
· the couple are both at least 18 years of age; and,
· with limited exceptions, the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa.
The requirement that the relationship must have existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is, or was, a humanitarian visa holder or, in the alternative, for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4) and r.2.03(5) of the Regulations. The provisions of r.2.03A of the Regulations are extracted in the Annexure to this decision
Were the parties in a de facto relationship at the time of application?
For the purposes of this decision, it is necessary to determine if the parties were in a genuine continuing and exclusive de facto relationship at the time of application. This requires an assessment of their relationship at this time. When the Tribunal is considering the definition of de facto partner in relation to a time of application criterion, the information supplied in relation to the matters in r.1.09A(3) of the Regulations may relate to circumstances after the time of application. It is appropriate for the Tribunal to consider all relevant evidence which may include evidence of events subsequent to the date of application insofar as that assists in the task of determining whether the applicant and their sponsor were in a de facto relationship at the time of application. In this regard, 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: Jayasinghe v MIMA [2006] FCA 1700, Middleton J at [35] and MIEA v Pochi (1980) 4 LD 139, Deane J at 160. When drawing such inferences, the Tribunal should be careful to relate that evidence to the earlier point in time: Truong v MIBP [2014] FCA.
Assessment of the relationship
The definition of a defacto relationship provided in s.5CB of the Act requires that the parties live together, or do not live separately and apart a permanent basis having regard to all the circumstances of the relationship, including the matters set out in r.1.09A(3) of the Regulations.

The parties said they knew each other from their time in Jordan where their families are neighbours. In her Statement lodged with her Form 40SP, [Ms B] said she has known [Mr A] since 2009 but had no real contact with him until February 2013 when he came to [City 1]. [Mr A] recalls meeting [Ms B] in 2012 (that is, before he arrived in Australia) when she went back to Jordan for her mother’s funeral. Information in the Department’s file indicates [Ms B] met [Mr A], who was in the company of her brother, and she joined them for coffee. Thereafter, they met on a few occasions including lunch gatherings in Jordan.
[Mr A] told the Tribunal that when he arrived in Australia he was planning to surprise [Ms B] and see if she was interested in pursuing a relationship. When he left Jordan, he was in the process of divorcing his wife. Based on information in the Department’s file, [Mr A]’s divorce was finalised on 4 April 2013. There is no suggestion that [Ms B] and [Mr A] were in a de facto relationship before he arrived in Australia. The couple say they renewed their friendship after [Mr A] arrived in [City 1].
After [Mr A] arrived in Australia in January 2013, [Ms B] says in her Statement that the couple went out on a few occasions when she showed [Mr A] around [City 1] and in February 2013 the relationship became more serious and they decided to live together as a couple.
Inconsistent information has been provided to the Department and the Tribunal in relation to when the parties started to live together. By way of example, [Mr A] says in the Statement lodged with his visa application that once the couple met again in [City 1] [Ms B] was “straightforward expressing her feelings” and so they decided to live together to start a new life. He states in his Form 47SP that he committed to a defacto relationship with [Ms B] on 10 April 2013. However, in response to Q.25 in his Form 47SP [Mr A] provides his residential address at the time of lodgement on 26 June 2013 as an apartment in [Suburb 3]. Furthermore, in her Form 40SP, [Ms B] also lists [Mr A]’s address at the time of lodgement as an apartment in [Suburb 3]. In addition, the couple’s joint bank account statement from [Bank 1] Account dated 26 June 2013 (the same day the visa application was lodged) is addressed to both [Mr A] and [Ms B] at the apartment in [Suburb 3]. By comparison, in the Statement dated 31 July 2016 lodged with the Tribunal just prior to the hearing, [Mr A] states he started living with [Ms B] from February 2013.
The Tribunal endeavoured to clarify during the course of the hearing when the de facto relationship commenced and the parties started to live together as a couple. As noted above, [Mr A] was not able to indicate in his oral evidence to the Tribunal precisely when the de facto relationship started. He said he was aware that his second 3 month Visitor visa was expiring in early July and that he needed to do something before it expired. [Ms B] too could not remember when [Mr A]moved into her house. In relation to the inconsistent information regarding addresses, [Mr A] clarified his brother lives in the apartment at [Suburb 3] and that when he first arrived in [Australian city 1] he lived with his brother but then “later moved to live with [Ms B] on and off”. He added that he did not change his address on certain documents to the [Suburb 1] address “until later on”.
The Tribunal also considered independent evidence of when [Mr A] living at [Ms B]’s home. Based on the documentation provided to the Tribunal the earliest document addressed to [Mr A] at the [Suburb 1] property is a letter from the Department of Health dated 2 May 2014 in relation to private health insurance. All other documentation provided to the Tribunal dates from 3 June 2014 or later. Based on evidence provided, it is appears [Mr A] did not see[Ms B]’s home in [Suburb 1] as his place of abode until mid-2014.
The Tribunal has also had regard to examples of evidence addressing the considerations set out r.1.09A(3) of the Regulations.
Financial aspects of the relationship
In relation to the financial aspects of the relationship, as noted above, prior to the hearing the Tribunal requested copies of all the couple’s bank statements since January 2013 when [Mr A] arrived in Australia including the [Bank 1] Account in the couple’s joint names. The Department’s file has a [Bank 1] Account statement dated 26 June 2013 with limited transactions of just 2 deposits dated 18 June 2013 and 26 June 2013. [Mr A] told the Tribunal the [Bank 1] account has not been used since the time of application. He told the Tribunal that he was paid in cash by the company that he first worked with at [Suburb 2] and that he and [Ms B] pooled their cash resources to cover living expenses. [Mr D] opined that as both [Ms B] and [Mr A] are from Jordan they used to dealing in cash only. After the hearing, [Mr A] lodged 2 [Bank 2] statements, each in debit, for the period 6 August 2014 to 6 October 2014 and 6 October 2014 to 5 December 2014.
The parties have no assets in joint names. Asked about his car [Mr A] told the Tribunal it was registered to the address in [Suburb 1]. After the hearing, the Tribunal received evidence of registration of [Mr A]’s [car] from 17 March 2014 and garaged at the [Suburb 1] property.
Prior to the hearing, the Tribunal had also requested [Mr A] forward the most recent statement of account from his superannuation fund. This may have named [Ms B] as the beneficiary. No documentation was received from [Mr A].
Apart from the [Bank 1] statement dated 26 June 2013 there is no evidence that the financial aspects of the relationship indicate the parties were in a genuine and continuing de facto relationship prior to the date of application. However, as neither [Mr A] nor [Ms B] have any significant financial assets of their own, the Tribunal places little weight on this aspect when considering whether the parties were in a de facto relationship at the time of application, or the 12 months ending immediately before the date of application.
Social aspects of the relationship
The Tribunal has considered evidence that the parties have declared their relationship to other government and commercial/public institutions or authorities as well as statements from family members and friends. It is also had regard to their plans for the future as well as whether the parties presented themselves as a couple socially.
Statements from the parties in the Department’s file simply indicate that the couple shared chores and went shopping together. However, as noted above, the parties have provided inconsistent evidence in relation to their living arrangements and the Tribunal was unable to reconcile these inconsistencies. Neither [Ms B] nor [Mr A] could indicate to the Tribunal when [Mr A] moved from his brother’s apartment in [Suburb 3] to live with [Ms B] in [Suburb 1].
Documentation has been provided confirming the parties have notified the [State 1] Housing Commission and Centrelink of the relationship. However as noted above, documentation dates from November 2014, that is, 17 months after the date of application. Although during the course of the hearing [Mr A] indicated that he had documentation available to the Tribunal which confirmed notification had been provided to such authorities when his application was lodged on 26 June 2013 no such documentation has been provided to the Tribunal.
In relation to the parties’ failure to register their relationship with the [State 1]BDM Registry the Tribunal notes [Ms B]’s oral evidence she had no idea why the couple’s relationship was not registered. [Mr A], however, told the Tribunal that [Ms B] had failed to register the relationship out of fear of her ex-husband. When the Tribunal put this inconsistency to [Mr A] he responded by saying “I will answer in a different way. The problem is not with the patient but the treatment given to the patient. She knew she could register the relationship. It was my idea. It was her decision to refuse registration”. The Tribunal reminded [Mr A] that [Ms B] had said she did not know why the relationship was not registered to which he responded “had this relationship been registered, I wouldn’t have all these problems. She is ill”. While the Tribunal accepts, based on information provided, that [Ms B] clearly has some medical issues including mental health issues it raises doubts in the mind of the Tribunal as to why [Mr A] did not prevail upon [Ms B] to register the couple’s relationship. It raises doubts in the mind of the Tribunal as to whether, at the time, [Ms B] was of the opinion there was no basis yet for registering the relationship.
Statements provided by family and friends are also unhelpful in determining when the de facto relationship commenced. The Tribunal notes the Statutory Declarations provided from [Mr C] and [Mr D] lodged with the visa application on 26 June 2013 do not state that the parties are living together. In his Form 888 [Mr C] simply states “my brother and [Ms B] spend a lot of time together and my brother is very happy with his partner and tells me about all his plans with her for the future”. No reference is made to the time when the de facto relationship started. The Statement from [Mr C] 21 August 2014 refers to him and his [age] year old daughter visiting [Mr A] and [Ms B] at weekends and “enjoying their backyard”. Again, the statement makes no mention of when the de facto relationship commenced. The other Statement provided to the Department is from [Ms B]’s friend [Ms I]. In her Statement of 28 August 2014 [Ms I] makes reference to [Ms B] “living with her new partner” and says she sometimes goes over to visit their house. In summary, the first time there is reference to the parties living together is August 2014.
During the hearing, the Tribunal observed the absence of any statements from [Ms B]’s children who were living at her home at the time of the application that could confirm when the de facto relationship commenced. [Mr A] indicated that he was unaware they could provide statements and said he would arrange to have them sent to the Tribunal. No documentation was received. The Tribunal notes that in her oral evidence, [Ms B] said her children were not aware that the couple were in a de facto relationship. She said [Mr A] slept on a couch in the lounge. However, [Mr A] had earlier told the Tribunal that he shared the master bedroom with [Ms B]. He later changed his evidence to the guest room. When the Tribunal put this inconsistency to him [Mr A] said “that’s correct. It wasn’t discussed with the kids because of her ex-husband. Of course, we did not tell them we were having an intimate relationship”. This raised doubts in the mind of the Tribunal regarding the social aspects of the relationship given that 2 of [Ms B]’s children ([names deleted]) were then living at home and they were adults. The Tribunal has concerns with [Mr A]’s changing evidence Tribunal about where he slept which, in any event, is inconsistent with [Ms B]’s evidence as to where he slept. In raises doubts for the Tribunal as to the basis of the existence of a de facto relationship. Are
A further issue that raised concerns for the Tribunal was [Ms B]’s oral evidence that she had to hide [Mr A] from her ex-husband because “he came over often”. [Mr A] had earlier told the Tribunal that the children “went to their father” because their mother had an AVO out against her violent ex-husband. When this inconsistency was put to [Mr A] he replied “yes, at the beginning he used to come every weekend but later, when we became closer, he didn’t come so often because we were close”. It appears to the Tribunal that either [Mr A] has provided false information to the Tribunal or he is unfamiliar with [Ms B]’s household and the access of her ex-husband to his children.
Having regard to all of the evidence provided, the Tribunal is not satisfied that the parties represented themselves as a couple to family and friends at that as at the time of [Mr A]’s visa application.
Nature of the household
The Tribunal has referred above to the concerns identified in relation to the domestic living arrangements of the parties. Although there is brief mention in the parties Statements lodged in support of the application the Statements from family and friends do not address the time that the facto relationship commenced. Although the correspondence has been provided to the Tribunal regarding [Mr A]’s mail being directed to him at [Suburb 1] the Tribunal notes the earliest such correspondence dates from May 2014.
Nature of the parties commitment to each other
In his Statement of 18 August 2014 lodged in response to the request by Department for further information regarding the relationship [Mr A] stated “we both wish to live a man and wife in Australia”. His comment is echoed in [Ms B]’s statement of 10 August 2014 “… we have a very good understanding of what we both need in life from each other and I hope this relationship to never end (sic). I am very pleased to have provided this letter in support of our relationship”. Further, the letter from [a Psychologist]dated 12 December 2014 confirms the [Ms B] has attended counselling sessions since 5 June 2013 and that [Ms B] describes [Mr A] “as her de facto and a friend of her brother”.
No evidence has been provided of the parties’ commitment to each other as at the time of application.
During the hearing [Mr A] told the Tribunal that he continued to provide support to [Ms B] after he had left the [Suburb 1] property. However, in her oral evidence [Ms B] said she has not seen [Mr A] since he left and that she relies on her daughter [Ms H] for support. When the Tribunal put this inconsistency to [Mr A] he said “that’s correct. We do not see each other face-to-face. I talk to her son and sort things out over the phone”. The Tribunal noted that [Ms B] had said there was no contact between the parties to which [Mr A] replied “that’s correct. I sometimes see her in the shopping centre and we talk to each other”. [Mr A]’s changing evidence raises doubts in the mind of the Tribunal regarding his truthfulness.
Overall assessment
Overall, evidence provided calls into question the truthfulness of [Mr A]’s evidence to the Tribunal that he was living in a genuine de facto relationship with [Ms B] at the time of his application. The Tribunal accepts that, based on evidence provided, it appears that the couple did live together at [Suburb 1] but not until sometime around mid-2014, just after he had his motor vehicle accident.
It appears to the Tribunal that, up until the time [Mr A] lodged his Partner visa application, the couple were merely boyfriend and girlfriend, enjoying each other’s company having come from a similar cultural background in Jordan. It is clear that they also spent time at each other’s separate residences. In his oral evidence to the Tribunal [Mr A] said he was “getting to the point” where he decided to resign from [Organisation 1] and that’s what “prompted” him to lodge his application for a Partner visa having regard to the imminent expiry of his Visitor visa. [Mr A] told the Tribunal that it was [Ms B] who advised him about the need to regularise his visa status in Australia of he wanted to get work and open a bank account. However, the Tribunal notes the Department’s file contains a copy of [Mr A]’s [Work]Service Certificate dated 14 March 2013 confirming he “Retired on pension” effective 3 March 2013, that is, 3 months before lodging his Partner visa application.
After weighing all of the evidence the Tribunal is not satisfied that the parties were in a genuine and continuing to de facto relationship on 26 June 2013 when [Mr A] lodged his visa application. The Tribunal finds the parties made the decision to commit to a de facto relationship sometime in mid-2014.
Because the Tribunal has found that the parties were not in a genuine de facto relationship as at the time of application it has not been necessary to consider whether [Mr A] meets the additional criteria for a de facto relationship. As noted above, immigration law requires that the de facto relationship must have existed for 12 months prior to the application. This does not apply in certain circumstances where the sponsor is, or was, a humanitarian visa holder, or for where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4) and r.2.03(5) of the Regulations. However, the 12 month criterion for a defacto relationship can be waived if an applicant establishes compelling and compassionate circumstances for the grant of the visa. It is only necessary to consider whether there are compelling and compassionate circumstances for the purpose of r.2.03A(3)(b) of the Regulations once a decision maker is satisfied there was a de facto relationship at the time of application: Nepal v MIBP [2015] FCCA 305, Coates J at [44]. As the Tribunal has found there was no de facto relationship at the time of application it is not required to consider whether there are compelling and compassionate circumstances for the purpose of r.2.03A(3)(b) of the Regulations.
For the reasons outlined above, the Tribunal is not satisfied that the requirements of s.5CB(2) of the Act are met at the time of application. Accordingly, [Mr A] does not meetcl.820.211(2)(a) of Schedule 2 of the Regulations
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Katie Malyon

Member
ATTACHMENT - Extract from the Migration Regulations 1994

1.09A    De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).
….
2.03A  Criteria applicable to de facto partners

(1)In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be
in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.

(2)      If a person mentioned in subregulation (1) applies for a visa:
(a)  the applicant is at least 18; and
(b)  the person with whom the applicant claims to be in a de facto relationship is at least 18.

(3)  Subject to subregulations (4) and (5), if:
(a)  a person mentioned in subregulation (1) applies for:
(i)  a permanent visa; or
(ii)  a Business Skills (Provisional) (Class UR) visa; or
(iia) a Business Skills (Provisional) (Class EB) visa; or
(iii)  a Student (Temporary) (Class TU) visa; or
(iv)  a Partner (Provisional) (Class UF) visa; or
(v)  a Partner (Temporary) (Class UK) visa; or
(vi)  a General Skilled Migration visa; and
(b)  the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;
the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.

(4)  Subregulation (3) does not apply if the applicant applies on the basis of being:
(a)  in a de facto relationship with a person who:
(i)  is, or was, the holder of a permanent humanitarian visa; and
(ii)  before the permanent humanitarian visa was granted, was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship; or
(b)  in a de facto relationship with a person who is an applicant for a permanent humanitarian visa.

(5)  Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.
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