1721845 (Migration)

1721845 (Migration) [2020] AATA 4189 (19 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1721845
MEMBER:Helena Claringbold
DATE:19 May 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 19 May 2020 at 11:29am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – family violence claim – whether genuine de facto relationship ever existed – nature of commitment – sponsor’s extra relationship affairs – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 1.09A; Schedule 2, cls 820.211, 820.221
CASES
He v MIBP [2017] FCAFC 206
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

On 2 November 2015, [the applicant], applied for a Partner (Temporary) (Class UK) visa. The application was based on his de facto relationship with [Ms A], the sponsor.
On 25 August 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate found that the applicant and the sponsor were not in a de facto relationship. Therefore, the applicant did not meet cl.820.221(1)(a) and cl.820.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 17 September 2019, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.
On 19 November 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current partner, [Ms B].
At the Tribunal hearing, the applicant was undecided about whether he wanted to continue with the review, based on a claim, that he suffered family violence perpetrated by the sponsor. On 26 November 2019, the applicant advised the Tribunal that he would be substantiating a claim that he suffered family violence perpetrated by the sponsor.
On 3 December 2019, the Tribunal wrote to the applicant. It invited the applicant to provide evidentiary information to substantiate his claim of having suffered family violence perpetrated by the sponsor and for that information to be with the Tribunal by 17 December 2019.
On 10 December 2019, the applicant requested an extension of time to provide the information as he had appointed a migration agent. An extension of time was granted to 3 January 2020.
On 20 December 2019, the applicant’s migration agent made a second request for an extension of time to 31 January 2020 to facilitate a report from a forensic psychologist. On 3 January 2020, the applicant’s migration agent, requested an extension of time in order to provide further information. An extension of time was granted to 31 January 2020.
On 24 January 2020, the Tribunal received a third request for an extension of time to provide further information. An extension of time was granted to 21 February 2020.
On 21 February 2020, the Tribunal received a fourth request for an extension of time to provide further information. An extension of time was gr anted to 9 March 2020.
On 27 February 2020, the Tribunal invited the applicant to a Tribunal hearing (second Tribunal hearing) on 17 March 2020 to give evidence and present arguments relating to the issues arising in his case. On 4 March 2020, the applicant affirmed his attendance at the Tribunal hearing of 17 March 2020.
On 11 March 2020, the applicant’s migration agent requested that the Tribunal hearing of 17 March 2020 be postponed. She stated that she was waiting on information requested in a Freedom of Information (FOI) application and other information relating to a psychiatrist and psychologist reports and the applicant was meeting his doctor about a date for surgery on his elbow. The Tribunal advised the applicant of the following: The Tribunal is of the view that the applicant had been granted a substantial amount of time to provide his evidence. The Tribunal is bound by the President’s Direction ‘Conducting Migration and Refugee Reviews’ and the Tribunal has a responsibility to conduct reviews that are ‘accessible, fair, just, economical, quick and proportionate’. The Tribunal cannot delay the matter any further and the hearing of 17 March 2020, would therefore proceed as scheduled.
On 17 March 2020, the applicant appeared before the second Tribunal to give evidence and present arguments. The Tribunal also took oral evidence from [Dr C], Forensic Psychiatrist. [Ms D] who was listed as a witness was not able to be contacted. The applicant was represented by his migration agent. The applicant’s migration agent told the Tribunal that the FOI information had been provided to her in the week prior to the Tribunal hearing. There is no medical evidence before the Tribunal to demonstrate that the applicant’s elbow surgery prevented his attendance before the Tribunal. The applicant provided clear and concise evidence to the Tribunal. The Tribunal is satisfied that the applicant meaningfully participated in the Tribunal hearing of 17 March 2020. After the Tribunal hearing, the Tribunal provided the applicant with additional time to provide additional information and this included evidence from [Dr C] and [Ms D].
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearings.
ISSUE
The issue in the present case is whether the applicant and the sponsor were de facto partners as defined by s.5CB of the Act.
BACKGROUND ON THE EVIDENCE
The applicant was born in [year] in the United Kingdom. His parents and one sibling are deceased. He has [number] siblings who reside in the United Kingdom. From 1 July 1988, to 1 February 1999, he was in a relationship with [Ms E]. There are three children from this relationship born in [year], [year] and [year]. They live in the United Kingdom. From 8 August 2008, to 25 March 2013, he was in a relationship with [Ms F]. There are no children from this relationship. [In] March 2014, he entered Australia as the holder of a visitor visa.
On 26 June 2015, he lodged an application for a Subclass 457 visa. On 17 September 2015, the Subclass 457 visa application was refused. In October 2015, his migration agent lodged an application for UK820/BS801 partner visas which was invalid. In October 2015, the Department advised the applicant that his application for UK820/BS801 partner visas was invalid. On 2 November 2015, he applied for a Bridging C visa, which was granted on 4 March 2016. In February 2016, the applicant emailed the Department and stated that his migration agent had disappeared and was not replying to emails or telephone calls. The applicant made a complaint about the migration agent handling the matter. He was advised that in December 2015, the migration agent ceased to be a registered migration agent and his business and Departmental filed had been shut down.
The sponsor was born [year] in [New South Wales], Australia. Her mother and one of her siblings are deceased. Her father and [number] other siblings live in Australia. From 11 November 2000, to July 2013 she was in a relationship with [Mr G]. There are three children from this relationship born in [year], [year] and [year]. From 1 January 2014, to 1 October 2014, the sponsor was in a relationship with [Mr H]. There are no children from this relationship.
The parties met in 2014, in Queensland. At that time, the applicant had an ongoing application for a subclass 457 visa. In approximately August 2015, or 16 September 2015, the applicant moved into the sponsor’s home in [City 1] Queensland. On 12 April 2017, the applicant informed the Department that his relationship with the sponsor had broken down.
The applicant claims that he suffered family violence perpetrated by the sponsor. In support of that claim he provided the following: a letter dated 2 January 2020 and 26 March 2020, from a general practitioner who stated that the applicant had been his patient since March 2019; a letter dated March 2020 and 9 April 2020, from a consultant psychiatrist whose report was based on an examination of the applicant on 24 February 2020; letters from a psychologist who had seen the applicant on 27 February 2020, 10 March 2020 and 1 April 2020; a statutory declaration dated 2 January 2020 from the applicant and third party statements.
Was the applicant the de facto partner of an eligible person?
The Tribunal is satisfied that the sponsor, at the time of visa application and decision, was an Australian citizen who had turned 18.
Were the parties in a de facto relationship?
‘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).
CLAIMS AND FINDINGS
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 and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
The financial aspects of the parties’ relationship
The sponsor owned the home where the parties lived and paid the mortgage repayments. The parties had a joint bank account and individual bank accounts. Joint bank statements dated May 2016 to July 2017 have been provided. They record various credit transactions noted as ‘wages’, one credit transaction in June 2016, for $200 is noted as ‘wages’ for the sponsor. There are debit transactions recorded for supermarkets, food outlets and department stores and a telecommunications provider and other ad hoc transactions. A withdrawal of $10 in April 2017 left the account with a credit of 0.24. Bank transaction lists are dated June 2016 to July 2016 do not give any additional information. The applicant’s will dated and signed 15 July 2016 directs that his estate be split between his three children and the sponsor. Also provided is a copy of a letter from an insurance company dated June 2016 addressed to the applicant. This advised the applicant that his [insurance] cover was active. It did not give any information about who was covered by the policy.
In January 2016, the applicant emailed the Department and stated the following: that the parties were suffering financial hardship and the sponsor was the only person with an income which was from Centrelink. Her previous salary which she earned [as an Occupation 1] ceased. The applicant had no savings left and had sold everything to help pay bills. The email appears to be written by the applicant with the applicant and sponsor’s names typed at the bottom of the email. The applicant provided the Tribunal with a copy of a Departmental case note dated March 2016, which recorded that the Departmental officer was satisfied that the applicant was in financial hardship and that it was appropriate that he be granted a Bridging visa C. The officer noted that consideration had been given to the change in the parties’ circumstances showing that reasonable living expenses exceeded their ability to pay for them.
In a letter dated June 2016, the applicant stated the following: he was granted a visa in December 2015 but didn’t have permission to work. This left the parties with little money and the sponsor supported them financially. This also meant that they were left with little evidence about financial accounts and spending. On 4 March (2016), he was granted work rights. On 6 April (2016) he obtained employment. On 4 May 2016, after training he began working. The parties opened a joint bank account and he started putting his wages in (the account). Departmental case notes provided by the applicant to the Tribunal give the following information: on 18 May 2016, the applicant informed the Department that he was working and could support the sponsor and she would no longer need to receive Centrelink payments. In July 2016, the applicant emailed the Department and stated the following: financial documents were lacking because (previously) he didn’t have permission to work but was currently working and because of issues with his migration agent. Other evidence from the applicant is that he paid a migration agent $14,000 to assist him with the partner visa application but the migration agent mishandled the visa application. In an email to the Department dated September 2016, he stated that they wanted to arrange income protection insurance.
At the second Tribunal hearing the applicant stated the following: in the first few months of the parties living together he used his savings and the proceeds from the sale of his bike for financial support. In June or July 2016, he was granted the right to work and his salary financially supported him. The sponsor received a Centrelink payment and child maintenance from the children’s father. Centrelink didn’t take the applicant’s salary into account because at the time the parties advised Centrelink about their relationship, he didn’t have work rights. The sponsor insisted that her house was for her and the children. She had an ongoing fear that he would take the house from her. He constantly reassured her, that this was not the case and he was not in the relationship to take advantage of her. The parties paid for groceries alternately. When he did the shopping, he paid cash and gave the receipts (for the purchases) to the sponsor. He added a bedroom to the sponsor’s house and cleaned and painted the house and this cost him about $10,000. He paid cash for the supplies for the work and gave the sponsor the receipts. He also gave the sponsor cash and purchased bikes for the children. He was ‘stupid’ about the financial side of the parties’ relationship.
In a statutory declaration dated 2 January 2020, the applicant stated the following: two months after the parties began living together, they opened a joint bank account which was used for ‘extra funds’. The parties also had separate bank accounts. He didn’t have access to the sponsor’s personal bank account but would leave his bankcard with her. This meant that when he was away working, she could make purchases from his (bank) account for the family and household as necessary. The sponsor paid the mortgage payments and all household bills were in her name and she insisted that everything go through her bank account. He contributed to the sponsor’s bank account to cover all expenses. He financed the building of a bedroom for the sponsor’s daughter. He bought bicycles, a water slide and a trampoline for the family. He paid most of the migration agent’s fees and the visa application fees but the sponsor contributed $2,000. They were cross beneficiaries on each-other’s wills and the sponsor was listed as his next of kin on his life insurance. The sponsor’s estate was mainly left to her children, but she said that the applicant would be looked after. On approximately 14 January 2017, the sponsor complained about finances and he transferred as much money as he could into the joint bank account. He purchased a remote-control tank for the youngest child.
In March 2020 and April 2020, a psychologist stated the following: the applicant presented at her office on 27 February, 10 March and 1 April 2020. During the second session the applicant discussed his de facto relationship with the sponsor. It appears that the applicant contributed labour and money into the house the parties shared but was never offered reimbursement for his labour or outgoings. On 16 June 2016, the sponsor talked the applicant into completing a will making her sole beneficiary. Additionally, she insisted that the applicant purchase life insurance naming her as sole beneficiary.
In April 2020, the applicant’s migration agent stated the following: the parties faced extensive financial issues in the first half of their relationship. This was due to the incompetence of their previous migration agent, which caused the applicant to lose working rights between December 2015 and 4 March 2016. She quotes from the parties letter dated 24 February 2017, ‘this affected my visa status to the point I lost work rights and ultimately my job. However, I was not made aware of this until 24 December 2015, when we received a partner visa (reference [number] marked ‘no work rights. This was a blow and we estimate that it cost us around $24,000 in lost wages.’ The applicant began working in May 2016. The applicant mistakenly stated that the sponsor was sole beneficiary in his will he received clarification as to the true beneficiaries after receiving a copy of the will. As the applicant left the relationship due to family violence, it is reasonable that it was considerably difficult for him to obtain evidence of the financial aspects of the first half of the relationship given that the Centrelink document was in the sponsor’s name. The letter dated 24 February 2017, also appears to have been written by the applicant with the applicant and sponsor’s name typed at the end of the letter. The Tribunal notes that the applicant stated that the sponsor typed the letter.
The Tribunal accepts that the parties had a joint bank account and that various transactions are recorded as detailed above. The bank statements give little insight into who was using the joint bank account and/or depositing into the joint bank account or to how the parties pooled their financial matters or shared day-to-day household expenses. The applicant’s claims that he left his bankcard for the sponsor to purchase for the family and household and that he deposited money into the sponsor’s bank account, are unsubstantiated by evidence such as his personal bank statements recording these transactions. The psychologist’s report is given approximately three years after the parties’ relationship ceased. There is no information that the report was prepared as a result of independent information being provided to the practitioner, rather it is reliant on information provided by the applicant to the psychologist. The Tribunal has not been provided a copy of a will or an insurance policy recording the sponsor as sole beneficiary of the applicant’s estate, the copy of the will provided stated that the sponsor would share the estate with the applicant’s children. However, it appears from the psychologist’s report that the applicant was talked into signing his will and the insurance policy, by the sponsor. The claims about the will and the insurance policy and the applicant’s expenditure for home improvements are unsubstantiated, as are his claims of purchasing items for the children other than that mentioned in text messages provided to the Tribunal. The deposits into the joint bank account in January 2017 total $250 and are without any identification of who made the deposits. There is no statement from the sponsor about how the parties pooled their finances or how they shared day-to-day household expenses. There is a text message dated 13 January 2017, where the applicant messaged ‘there is cash in the (bank) account if you need to go shopping’. The parties did not have any joint financial assets or liabilities. They did not pool their financial resources, especially in relation to major financial commitments and they did not owe any legal obligation in respect of each other, other than their joint bank account and wills. On the evidence before the Tribunal, it accepts that the parties shared some of their day-to-day household expenses.
The nature of the parties’ household

The applicant told the Tribunal at the second hearing the following: that he moved into the sponsor’s home and the parties lived there with the sponsor’s three children. He became a father figure to the sponsor’s children. The sponsor has obsessive-compulsive disorder (OCD)[1]. She became upset if the applicant tried to help with the housework. He did the gardening and took care of the cars, walked the dogs and played with the children. On the sponsorship form the sponsor declared that from August 2015 to September 2015, the applicant was based in [City 3] pursuing a ‘working visa’.
[1] OCD is a treatable anxiety disorder that affects more than 500,000 people in Australia. It usually develops in late childhood or early teenage years and without proper treatment can become a chronic condition. As the name suggests, there are 2 kinds of symptoms: obsessions - an unwanted thought, image or urge that repeatedly comes into the mind; compulsions - repetitive behaviours or rituals, that are difficult or impossible to resist doing, which are carried out to reduce anxiety. >
In a statutory declaration dated 2 January 2020, the applicant stated the following: The sponsor was responsible for disciplining the children and carried out the day to day parental duties such as cooking, cleaning and school runs. She did not want the applicant to have these ‘parental type’ of duties with the children. He was not allowed to wash up or cook any meals when the children were home. The sponsor preferred to do the cooking and the cleaning. He was responsible for mechanical repairs, gardening, building the new bedroom for the sponsor’s daughter, cleaning and painting the outside of the house, fence repairs and walking the dog. He did chores to support the sponsor. Their roles reflected traditional beliefs that the woman in the relationship should only have to do the cooking, washing and taking care of the children, while the man should take on outdoor tasks and be the financial provider. However, the parties did the grocery shopping together. In February 2017, he began renting a house in [City 3].
In April 2020, the applicant’s migration agent stated the following: the applicant took on the responsibility for the care and support of children. Although the sponsor didn’t want the applicant to carry out day to day responsibilities such as cooking, cleaning or school runs. The applicant also cared for the children, including purchasing bicycles, teaching the sponsor’s son to ride a bike, undertaking playtime activities and buying and assembling a trampoline and waterslide for the children.
The Tribunal is inclined to accept that the parties lived together and shared the responsibility of housework as detailed above. In relation to joint responsibility for the care and support of the sponsor’s children, the Tribunal accepts that there was some level of care and support provided by the applicant.
The social aspects of the parties’ relationship
The applicant told the Tribunal that the parties and the children went camping, fishing and cycling. On weekends they watched DVDs, played games or had a barbeque. Some weekends they went to [City 3]. Other weekends the children went to stay with their biological father.
In a statutory declaration dated 2 January 2020, the applicant stated the following: initially, some of the sponsor’s family were hesitant about him. However, over time he got on well with them and especially the sponsor’s father. He met the sponsor’s sister recently and they were civil to each other. His friends initially got on well with the sponsor. The parties met friends in [City 3] and went camping, fishing and motorcycling. The parties watched television and sat in the garden enjoying a drink. He taught the youngest child to ride a bicycle and they had plans to go camping with the children and to have trips away and discussed travelling.
Third party statutory declarations and statements
In 2015, [Ms I] stated the following: that she met the applicant in March 2014. The applicant and his de facto partner (the sponsor) house sat for her and looked after her dogs for the weekend of 11 September 2015 and 25 September 2015. She had seen the parties together a few times over the past three months. They attended a barbeque and camping with the children in [City 3]. In September (2015) the applicant moved to [City 1] to live with the sponsor.
In 2015, [Ms J] stated the following: she met the applicant in 2004 when they shared the same student house accommodation and have remained close friends. She met the sponsor and her children on 28 August (2015) at her home in [City 1]. They joined her and other friends camping. Since then she has met with the applicant and the sponsor on a few occasions. They visited her at her home on 11 September and met up with them at a friend’s (place) for a barbeque in [City 3]. She went to visit them when they were house sitting for [Ms I]. Prior to the applicant moving in with the sponsor he visited her often. In 2019, she stated that the applicant’s relationship with the sponsor failed because of external pressures predominantly the actions of an unscrupulous migration agent and financial pressure leading to the demise of the relationship. She goes on to explain the applicant’s relationship with [Ms B]. In 2020, she added that while in public and during social outings the parties showed affection for each other constantly kissing, hugging and holding hands. Both [Ms I] and [Ms J] believed the parties’ relationship to be genuine. Photographic evidence depicts the parties together and with children at different locations.
The Tribunal accepts that the parties represented themselves to other people and were accepted as being in a de facto relationship. It accepts that the parties planned and undertook social activities together.
The nature of the parties’ commitment to each other
There is inconsistent evidence about when the parties met and when they began living together as de facto partners. On the visa application form, the applicant declared that the parties met on 1 December 2014 and their de facto relationship began in August 2015. On the form 80, the applicant declared, the same residential address as the sponsor from September 2015. The applicant told the second Tribunal that the parties met online in August 2015 and met in person in September 2015. He stayed over most weekends at the sponsor’s home before moving in with the sponsor in the middle of October 2015. The Tribunal asked the applicant about this inconsistent information, he stated that he didn’t remember the exact timing or dates (of the relationship) but the information given at the time of application is the correct information.
In a letter dated June 2016, the applicant stated the following: the parties met in August 2015. At that time, he was waiting on the outcome of an application for a Subclass 457 visa. He moved in with the sponsor on 16 September (2015) as the parties didn’t want to be apart. While living with the sponsor the Subclass 457 visa application was refused. The applicant provided a Centrelink document printed on 10 December 2015 in the sponsor’s name. The information in this document recorded that the sponsor was partnered and in a relationship with the applicant since 16 September 2015.
On 12 April 2017, the applicant advised the Department that his relationship with the sponsor had ceased. He stated that the parties had tried to establish a future together. However, his former migration agent didn’t complete the visa application process and had departed Australia. The stress and difficulties the parties faced contributed to the end of the parties’ relationship. He moved out of the house where he lived with the sponsor and children and relocated to [City 3]. In July 2017, the applicant stated the following: that when his Subclass 457 visa application was refused, he explained to the sponsor that he would have to leave Australia and apply for a visa offshore. The sponsor and the children were upset (about this) and the sponsor didn’t want to separate and asked what they could do. They contacted a migration agent and were advised to apply for a de facto partner visa. He had become a father figure to the sponsor’s children and the parties were happy. In October 2016, because of issues with his migration agent, the sponsor became openly resentful toward the applicant. The parties faced difficulties including the loss of the sponsor’s nephew and father (May 2017). These circumstances, along with the mishandling of the visa application by a now de-registered migration agent and financial loss caused by that process led to the breakdown of his de facto relationship.
At the Tribunal hearings the applicant stated the following:
Initially, the parties were happy and the first six or seven months (of the parties) relationship were fine. He was committed to the relationship and he believed that the sponsor was also committed to the relationship. However, the sponsor’s commitment (to the relationship) changed when his previous Subclass 457 visa application was refused (prior to the lodgement of the partner visa on 2 November 2015) and when the applicant was not working. (The applicant did not have working rights from December 2015 to 4 March 2016, information given in the applicant’s migration agent’s submission dated April 2020)
In June 2016 or July 2016, the sponsor became abusive and accused him of seeing other people. She instigated the use of condoms when the parties were sexually intimate and things became progressively worse. She accused the applicant of giving her a Sexually Transmitted Infection (STI). In November 2016, he attended a clinic to be tested to determine if he had an STI. During the visit, the nurse made a comment to him about whether he was in the right relationship and he became aware that the sponsor was ‘on the list’. He received a negative outcome from the STI test and the sponsor’s result was positive. The sponsor, then told the applicant that she had contacted the STI two years prior. He believed, that the sponsor was having a lot of sexual affairs with other people, a lot of the time. Initially he stated that the sponsor’s extra affairs took place six or seven months after the parties began living together and then said, the affairs began in about June 2016 or July 2016 and he believed that this behaviour was a form of abuse. The Tribunal notes that the medical documents provided by the applicant record the STI tests for him took place on 5 December 2016.
The sponsor ‘had explosions’ and threw him out of the house. At other times she was ‘good’. In June, July or August 2016, he was working away from (the family) home. The sponsor told him that she was looking forward to him returning on the weekend. However, when he arrived home, he found that he was locked out of the house. He thinks the sponsor was seeing other people. On the Sunday of that weekend he was allowed into the house. The parties had a talk and the sponsor told him ‘’I’m going to use what my mother gave me’. He thought that this meant that the sponsor was going to use her body and have fun. The sponsor also told him ‘smell the coffee Jim’, which he though meant that she was going to ‘mess about’ and he should live with it and he assumed that she was seeing others. Some weekends (when he returned home) things were fine and other weekends he would not be let into the house, until either the Saturday or Sunday. When the sponsor visited the applicant in [City 3], she was nice. The sponsor sent him abusive texts.
The sponsor’s relationship with her previous partner lasted 12 to 15 months. They fought because he was growing cannabis. As a [Occupation 1] she was concerned that this would be discovered. The sponsor’s relationship with her previous partner ended six to seven months prior to the parties’ relationship. He didn’t know if the sponsor used cannabis. After the parties’ relationship ended, by coincidence, the applicant met the sponsor’s sister. She told him that the sponsor had returned to live with her previous partner. He discovered (from the sponsor’s sister) that the sponsor’s previous partner lived around the corner from where the parties lived together. He stated, that the sponsor could have been having a relationship with her previous partner (while in a relationship with him) and he didn’t know about it. The delegate told the applicant that she/he was satisfied that the parties were in a partner relationship but not satisfied that the relationship continued at the time of the decision.
At the second Tribunal hearing the applicant was asked about his indecision about whether he wanted to proceed with a claim that he suffered family violence perpetrated by the sponsor. The applicant told the second Tribunal that had he known that the sponsor was seeing other people he would have left the relationship, but he didn’t know this until the end of the relationship. However, he had wanted the relationship to work and to be close to the children.
The Tribunal discussed with the applicant the limited evidence from the sponsor about the parties’ relationship. There is little evidence before the Tribunal from the sponsor about her commitment to the parties’ relationship or about any aspect of the parties’ relationship. Her evidence relates to the completed sponsorship form signed October 2015 and provided at the time of application, where she declared that the parties’ relationship began on 5 August 2015; the Centrelink document printed on 10 December 2015, which recorded the date of her relationship with the applicant as 16 September 2015, ad-hoc emails sent from the applicant’s email address to the Department, with his name and the sponsor’s name given in the messages, various text messages exchanged between the parties and a typed unsigned letter dated 24 February 2017, claiming to be from the applicant and the sponsor, which the applicant told the Tribunal the sponsor typed. The information in this letter appears to be given by the applicant. It provides information about issues with a previous visa application and his previous migration agent. It details the difficulties the parties experienced because of these circumstances and about the applicant supporting the family. There are no expressions from the sponsor about her commitment to the parties’ relationship or whether she saw the relationship as long term.
In a statutory declaration dated 2 January 2020, the applicant stated the following: the parties met in August 2015 through an online dating application. After communicating for about six weeks they decided to meet and committed to an exclusive relationship. The sponsor told the applicant she loved him throughout their relationship. They enjoyed an intimate sexual relationship and didn’t use condoms and were committed to a mutually exclusive relationship. Later, the sponsor bought condoms and the parties started using them. In February 2016, the family went out and he suspected that the sponsor didn’t want to be seen with him in public. Throughout March 2016, the sponsor’s behaviour was erratic. Sometimes she wanted the applicant around and at other times she didn’t want him around. He began to question where he stood with the sponsor. However, as the sponsor was sponsoring his partner visa, he felt he couldn’t seek help or support without affecting the partner visa application and he was determined to make the parties’ relationship work. On 22 April 2016, the parties planned a weekend with the sponsor’s sister and her family. When the applicant arrived home the sponsor and children had already left. The sponsor sent a text message to the applicant and stated that she didn’t want the applicant to join them. She texted ‘suck it up buttercup’ and that she was ‘going to use what my mother gave me’ which he understood that this indicated that she intended to ‘sleep’ with (be intimate with) someone else. On 14 May 2016, the sponsor insisted that the parties use a condom while intimate. In June 2016, the sponsor accused the applicant of wanting to take part of her house and he assured her that this was not the case. She accused the applicant of using her and the children. These accusations became worse when the applicant lost his ability to work and he was running low on savings and the sponsor realised he would not be earning $500 to $600 daily. On several occasions the applicant was locked out of the house and he suspected that the sponsor had another male in the house with her. Despite his suspicions that the sponsor was unfaithful, she accused him of ‘sleeping around’. On 6 December 2016, the applicant was due to undergo the health examination related to the partner visa application. The sponsor accused the applicant of transmitting to her an STI. The applicant was tested for STI’s and his results were negative. A week later he called the sponsor so that he could ‘come round with the negative results’. The sponsor told the applicant that she was positive for [an STI], which was transmitted to her by her former partner.
The applicant stated that during late 2016 to early 2017 it was apparent to the applicant that the sponsor was sleeping with other men. In January the sponsor told him to ‘F off’, and this was not the first time she said this. In February 2017, he began renting a house in [City 3]. A few days later after providing the sponsor with mechanical advice they enjoyed drinks and later were intimate. On 17 March 2017, the parties agreed to spend the weekend together. However, on arriving at the house the applicant found the doors locked. He ‘began to assume that the sponsor was seeing someone else’. In the last week of March 2017, he received (a) text (message) from the sponsor demanding that he pick up his things. On arrival he found that his belongings were thrown in the driveway. ‘Our relationship had officially ceased at this point’. The applicant also stated that on several occasions when locked out of the house he would sleep in his car or stay with friends. On 12 April 2017, he informed the Department that the parties had separated and that he was living in [City 3]. A Departmental officer then contacted him by telephone. During the call he explained to the officer the issues in the parties’ relationship including the sponsor exposing him to an STI.
The applicant added that during the first six or seven months of the parties’ relationship they provided a large amount of support for each other. He provided emotional support for the sponsor including at the time of her nephew’s suicide. Both he and the sponsor saw their relationship as long-term. The parties lived together until he started a new job that required him to work in [City 3] during the week and return to the sponsor and the children on weekends. He separated from the sponsor on 17 March 2017 and until that time they lived as de facto partners.
In December 2019, in a statutory declaration [Ms J] stated the following: she became aware of problems in the parties’ relationship about a year or so into their relationship. The applicant often worked in [City 3] and would call to see her. On one visit, he told her that he found the sponsor unpredictable. He didn’t know where he stood in the relationship and was concerned that the sponsor was being unfaithful. The applicant showed her text messages he received from the sponsor and stated that the sponsor had accused him of giving her an STI. In 2020, [Ms J] stated the following, to her knowledge the applicant and the sponsor were in a committed de facto relationship that was mutually exclusive to all others until they separated in the middle of 2017. She believes that the parties were genuine de facto partners for the period of their relationship as during that time the applicant stayed with her and had daily telephone contact with the sponsor and they continuously text messaged each other.

In a letter dated 26 March 2020, a general practitioner stated the following: she based her opinion on the reports from the applicant and his psychologist; the applicant was in a de facto relationship with the sponsor between September 2015 and March 2017. The sponsor demanded all receipts for the work the applicant did on her house because she didn’t want him to lay claim on the house. In March 2020 a psychiatrist stated the following: the applicant describes being locked out of the house for weekends while the sponsor saw other men and contracting a sexually transmitted infection (herpes) from her. The break-up with the sponsor has caused him emotional problems. He has become anxious, depressed and cannot trust others. He has dyslexia. He has a psychiatric diagnosis of adjustment disorder with mixed symptoms of anxiety and depression. At times he feels life is not worth living but he denied suicidal or homicidal thoughts. He was alert and orientated. He complains of subjective problems with attention and concentration. Cognitive testing did not reveal any notable disturbance of cognitive function. He is of average intelligence. His judgement and insight were intact. In April 2020, the psychiatrist stated the following: patients suffering from post-traumatic-stress-disorder have difficulty recalling specific memories of past experiences, especially if they trigger anxiety in the patient. He suspects this phenomenon applies to the applicant and is consistent with his psychiatric disorders. In March 2020 and April 2020, a psychologist stated the following: the applicant presented at her office on 27 February, 10 March and 1 April 2020. During the second session the applicant discussed his de facto relationship with the sponsor. The day-to-day effects of people with post-traumatic stress disorder (such as) the applicant, are long term and short-term memory defects and would manifest in the applicant not being able to recall particular days or times but having memory of events.
The information provided by the general practitioner, the psychiatrist and psychologist appear to be given as a result of information provided by the applicant. There is no information about their reliance on any independent evidence about the parties’ relationship. The claim by the psychiatrist that the sponsor transmitted herpes to the applicant is inconsistent with the applicant’s evidence that his test results were negative for STI. While there is a claim that people with post-traumatic stress disorder are not able to recall days or times, the applicant has provided either specific or approximate dates relating to the parties’ relationship in his statement of January 2020.
In 2020, the applicant’s migration agent stated the following: the parties were in a de facto relationship from September 2015 and lived together from 16 September 2015 until March 2017 and had an intimate sexual life. The applicant did chores to support the sponsor because he was committed to the relationship. On 10 December 2015, the applicant and the sponsor registered their relationship with Centrelink and informed them they were living in a de facto relationship. The sponsor was the first person to say I love you in the relationship and continued to do so throughout the parties’ relationship and didn’t want the applicant to leave Australia. The applicant saw the parties’ relationship as long term as the sponsor introduced him to her children and family. It was also clear that the sponsor also saw the parties’ relationship as long term because she introduced him to her children and all her family and friends. She registered the parties’ relationship with Centrelink and wanted him to live with her. Their commitment is also demonstrated in the emotional support that the parties drew from each other. The applicant providing the sponsor with emotional support throughout the relationship and when her nephew committed suicide. It is evident that the applicant and the sponsor had a genuine and committed relationship, particularly in the light of the emotional commitment and their effort to stay together.
Overall, the Tribunal having considered the applicant’s evidence that the dates given at the time of visa application are correct, is giving the applicant the benefit of the doubt and accepts that the parties met in December 2014 and that the applicant moved in to live with the sponsor in either August or September 2015. The applicant’s oral evidence to the Tribunal, is that the parties’ relationship ceased five to six months prior to him writing to the Department in April 2017, but they were trying to resolve matters. On this evidence, the parties’ relationship ceased in about November 2016. The applicant told the Tribunal, that the sponsor’s commitment (to the relationship) changed when the Subclass 457 visa application was refused (17 September 2015) which was prior to the lodgement of the partner visa on 2 November 2015 and approximately around the time the applicant moved in with the sponsor. The applicant’s evidence in his statement of January 2020, is that the parties’ relationship ceased in March 2017. Even if the Tribunal accepted that the parties’ relationship ceased in March 2017, the applicant’s evidence is that the sponsor was having sexual affairs a lot of the time. His evidence about when the affairs began is inconsistent. He initially claimed that the affairs began six or seven months after the parties began living together. He then claimed, that they began in about June 2016 or July 2016 or a few months prior to the STI test. In his statement dated January 2020 he stated, that in February 2016, he suspected that the sponsor didn’t want to be seen with him in public and in April 2016, he understood from the sponsor’s text message that she intended to sleep (be intimate with) another person. The evidence before the Tribunal is that the sponsor’s commitment changed when the Subclass 457 visa was refused in September 2015 and prior to the partner visa being lodged in November 2015 and she was having relationships with others approximately nine or ten months after the parties began living together. The applicant’s evidence that the sponsor accused him of transmitting an STI to her and then telling him that she had an STI is inconsistent and confusing. The oral evidence the applicant gave the Tribunal is, that in June 2016 or July 2016, the sponsor accused the applicant of transmitting an STI to her and then, when his test results returned negative, she told the applicant, that she had the STI from two years prior (to that time). On the other hand, the applicant’s evidence in his statement of January 2020, is that it was in December 2016 when the sponsor accused him of transmitting an STI to her and later telling him that she had [an STI].
What is not confusing, is the oral evidence given by the applicant to the Tribunal, that his STI test results were negative and the sponsor’s STI test results were positive. The Tribunal understands that infidelity by the sponsor does not necessarily take the relationship outside the definition of de facto. However, the applicant’s evidence is that the sponsor was having affairs with others from April 2016. His evidence is that the affairs took place while the sponsor was in a relationship with him and that the sponsor possibly continued to be in a relationship with her previous partner while in a relationship with the applicant. This evidence when balanced with the lack of evidence from the sponsor about her commitment to the parties’ relationship led the Tribunal not to accept that she was committed to the parties’ relationship. The Tribunal does not accept [Ms J]’s statement that the parties were in a mutually exclusive relationship until the middle of 2017 because on the applicant’s evidence, the sponsor was having affairs with others from at least April 2016.
The applicant’s migration agent submitted various text messages which outlined communication between the sponsor and visa applicant over a period-of-time. These messages have been considered by the Tribunal and they evidence some level of communication between the parties. They do not however overcome the Tribunal’s concerns about the genuineness of the relationship.
While the Tribunal accepts that for a time the parties would have provided each other with some companionship and emotional support, the evidence about the sponsor’s extra relationship affairs and the lack of evidence from her about her commitment to the parties’ relationship, led the Tribunal not to accept that the parties ever had a mutual commitment to a shared life to the exclusion of others or that they saw their relationship as long term.
Other considerations
In the letter of 24 February 2017, the applicant stated that his experience with the previous migration agent should be considered as (reason) why certain information is scant or missing. The applicant provided the Tribunal a copy of an email dated 28 October 2015, which he sent to his previous migration agent stating ‘we may consider cancelling your services’. He also provided a copy of an email he sent to the Department dated February 2016. He advised that his migration agent had disappeared.
He provided a copy of an email dated 16 February 2016, from the Migration Institute of Australia (MIA) advising that his complaint had been successfully lodged. Another email from the MIA, he provided, stated that in December 2015, the migration agent ceased to be registered and his business and Departmental accounts had been shut down. He was advised to contact the MIA for assistance. In March 2016, the applicant stated that he didn’t have a migration agent and didn’t have access to his files. In July 2016, he stated that they didn’t have any information on finance, telephones or ‘normal things’, due to the problems with their migration agent. In his statutory declaration of November 2019, the applicant details his dealing with the migration agent and stated that he didn’t have access to his immigration account on the Department’s portal.
The Tribunal does not condone malpractice of any migration agent. However, the Tribunal is of the view, that the applicant was fully aware of issues with the migration agent from October 2015 and at the date of this decision had many years to provide information to support the partner visa application.
In the statutory declaration dated November 2019, the applicant provides information about his current partner as follows: In January 2018, the applicant moved in to live with [Ms B] and continues to live with her. A Federal Circuit Court of Australia Order dated March 2019, gives the applicant shared responsibility for [Ms B]’s son [Child K] and sole responsibility should [Ms B] pass away. In a statutory declaration dated November 2019, [Child K] stated the following: he considers the applicant as his stepfather and further explains the support the applicant provides him. Third parties attest to the genuine relationship between [Ms B] and the applicant. Other third-party statements refer to [Ms B]’s medical conditions.
[Ms B] told the Tribunal the following: she is aware about issues in the applicant’s previous relationship with the sponsor which bordered on abuse. She was given a history of the relationship by a friend. She then went on to tell the Tribunal about her relationship with the applicant. [Ms B] in a statement dated November 2019, provided details of her relationship with the applicant and the support he has given her and her son. A statutory declaration from [Ms B]’s father dated November 2019, gave information about the applicant’s relationship with [Ms B] and the support the applicant gives [Ms B] and her son.
At the Tribunal hearing on 19 November 2019, the Tribunal omitted to telephone witness [Ms I]. On 19 November 2019, the Tribunal wrote to the applicant and invited him to provide a statutory declaration with written evidence from [Ms I]. In a post Tribunal hearing submission of 2020, the applicant’s migration agent provided a copy of [Ms I]’s statutory declaration dated October 2015 which is recorded in this decision record.
In April 2020, the applicant’s migration agent stated the following: As the Tribunal hearing of November 2019 progressed the applicant stated that he had suffered family violence. As a result, the Tribunal encouraged the applicant to pursue his claim further and to explore any evidence to support that he was a victim of family violence. At the Tribunal hearing of November 2019, the applicant was undecided whether he wanted to make a claim that he suffered family violence perpetrated by the sponsor. The Tribunal provided the applicant additional time to provide information about the parties’ relationship and the evidentiary documents to support his claim.
This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered all the evidence individually and including the Department and Tribunal case files and the evidence at the Tribunal hearings and provided after the Tribunal hearings. The Tribunal accepts that the parties shared some finances and planned and undertook some joint social activities and that the applicant and the sponsor represented themselves as being de facto partners and that the third-party witnesses believed their relationship to be genuine. Notwithstanding this evidence, when it is balanced against the evidence relating to the sponsor’s extra relationship affairs and the lack of evidence from her about her commitment to the parties’ relationship, the Tribunal is not satisfied that the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of all others or that their relationship was genuine and continuing.
Without further independent evidence about the sponsor’s commitment to the parties’ relationship and after considering the evidence completely, the Tribunal is not satisfied on the evidence that a de facto relationship ever existed between the applicant and the sponsor. The applicant therefore does not meet the requirements of s.5CB of the Act. Accordingly, the applicant cannot satisfy cl.820.211(2)(a) of Schedule 2 to the Regulations.
The Tribunal considered the information about the claims of family violence, in so far as it related to the parties’ relationship. As the Tribunal is not satisfied that the parties ever shared a de facto relationship, it has not gone on to consider the applicant’s claims of family violence. As a result, the applicant does not satisfy cl.820.221(3) of Schedule 2 to the Regulations.
The Tribunal is not satisfied that at the time of the visa application or at any time, the sponsor and the applicant ever had a mutual commitment to a shared life as de facto partners to the exclusion of all others; or that their relationship was genuine and continuing. The applicant therefore does not meet the requirements of s.5CB of the Act.
There is no evidence before the Tribunal that the applicant satisfies any of the alternate criteria for the grant of the visa. Therefore, the applicant does not meet cl.820.211 and cl.820.221 as required for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Helena Claringbold

Member
ATTACHMENT - Extract from 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).

[2020] AATA 4189

19 May 2020

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