1817836 (Migration)

[2022] AATA 2264

1817836 (Migration) [2022] AATA 2264 (3 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817836

MEMBER:Margie Bourke

DATE:3 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 03 June 2022 at 7:07pm

CATCHWORDS

MIGRATION – (Residence) (Class BS) visa – Subclass 820 (Spouse) – genuine and ongoing relationship – applicant’s partner did not undertake the role of sponsor – partner’s employment records – residential history – limited time of application evidence – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.03, 1.09, 1.15; Schedule 2, cls 820.211, 820.221

CASES

Bretag v MILGEA [1991] FCA 755
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 April 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) because the applicant had not provided sufficient evidence to demonstrate he was the spouse or de facto partner of the sponsor within the meaning of s.5F or s.5CB of the Act.

4. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, informal, economical and quick. The Tribunal had regard to the circumstances of the applicant and the nature of the review. The Tribunal considered that the hearing would not involve a large amount of paperwork to be put to the applicant during the course of the hearing by the Tribunal. The availability of in-person hearings was restricted due to the ongoing pandemic. The Tribunal considered that the conduct of the hearing by video would allow the applicant a fair opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and enable the Tribunal to properly assess the evidence before it. In all the circumstances, the Tribunal considered that this was an appropriate matter in which the hearing could be conducted by way of video.

5. The applicant appeared before the Tribunal on 11 April 2022 by video to give evidence and present arguments. The Tribunal also received oral evidence from the named sponsor [Ms A], the applicant’s aunt [named], and the sponsor’s mother [named]. The witnesses all attended the hearing by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO (cl 820.211(2)(a), cl 820.221)

   Whether the parties are in a spouse or de facto relationship

8. Clauses 820.211(2)(a) and 820.221 require that at the time the 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. The applicant has not provided any identification documents to the Department or to the Tribunal in relation to the person named as the sponsor, the spouse or de facto partner of the applicant. The Tribunal has no documents on which to make any finding as to whether the claimed sponsor is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. However, the Tribunal notes that in the Department’s decision record the person named as the sponsor is recorded with her date of birth, and her immigration status is recorded as Australian citizen. The Tribunal accepts the Department’s assessment that the person claimed as the sponsor is an Australian citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

   Documents provided to the Department and to the Tribunal by the Applicant

9. The applicant provided an application lodged online on 12 April 2016 to the Department. The Department wrote to the applicant with a request for further information, and specified that the applicant provide the following information and documents:- personal particulars for character assessment (form 80), marriage certificate, relationship history statements, sponsorship form (form 40SP) and evidence of the relationship with the applicant’s spouse or de facto partner. The Department records in the decision record dated 28 May 2018 (a copy of which was provided to the Tribunal by the applicant), and the Department file also discloses, that there was no response received from the applicant to the invitation from the Department to provide further information. Accordingly, the Tribunal is satisfied that the only information provided to the Department by the applicant was the application form for the visa which was lodged online.

10. The Tribunal received the application for review which was lodged on 19 June 2018. There is correspondence on the Tribunal file between the Tribunal and the applicant and his representative in relation to procedural matters. On 7 October 2021, the Tribunal sent a letter to the applicant and invited the applicant to provide information in relation to the circumstances of his relationship in accordance with r.1.09A or r.1.15A. The applicant provided information to the Tribunal in response to this request.

11. The issue of whether the person claimed to be the sponsor sponsored the applicant for the purpose of cl.820.211(2)(c) is also a matter to be determined by the Tribunal in this decision. For this reason I will refer to the person claimed to be the sponsor by her name, [Ms A], in this decision record.

12. The issue of whether the applicant and [Ms A] claimed to be in a spousal or de facto relationship was not resolved until after the hearing, when the applicant provided a copy of the registered marriage certificate. For this reason discussions in the hearing, and correspondence to the applicant after the hearing referred to either the spousal or de facto relationship.

13. The information provided to the Tribunal included a statutory declaration from the mother of [Ms A], [named] dated 13 October 2021, an undated statement from the applicant, a statutory declaration from a friend of the mother of [Ms A], [Ms B], a statutory declaration from a friend of the mother of [Ms A], [Ms C] dated 2 October 2021, a statutory declaration from friends of the applicant and [Ms A], [Ms D] dated 12 October 2021, a collection of monthly rental receipts in the name of the applicant and [Ms A], and a room rental agreement stated to commence 16 October 2017 in the name of the applicant and [Ms A] at the address of [Address 1], Australian Taxation Office assessment notices in the name of the applicant for the financial year ending June 2017, June 2018, June 2020 and June 2021, Australian taxation office assessment notices in the name of the [Ms A] for the financial years ending June 2017, June 2018, June 2019 and June 2020, joint bank statements in the name of the applicant and [Ms A] with [Bank 1] from July 2017 on, and with [Bank 2] from July 2019 on, bank statements in the applicant’s name from 2019 on, and bank statements in [Ms A’s] name from 2018 on, and car insurance in [Ms A’s] name dated 29 June 2018 (in which the applicant is listed as a nominated driver), superannuation statement in [Ms A’s] name dated 7 August 2018 (in which the applicant is listed as a nominated beneficiary) and subsequent superannuation correspondence dated 2021.

14. The applicant provided the Tribunal with copies of several items of correspondence to both the applicant and [Ms A] at the address of [Address 1]. The correspondence included [utility] notices to the applicant, MP letters to [Ms A], [Agency 1] letters to the applicant, an invoice from [Country 1] to the applicant, ASX receipts to the applicant, employer letters to [Ms A], superannuation letters to [Ms A], invoices and receipts to [Ms A] and applicant, phone records in the name of [Ms A] and general correspondence to both the applicant and [Ms A]. Other information provided to the Tribunal included a collection of photographs, and medical scripts for the applicant dated 13 November 2020 for a Ventolin inhaler and similar medication including a turbo inhaler and aerosol spray.

    Are the parties married?

15. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act: s.5F(2)(a). A person is in a spouse relationship with another person to whom they are married if they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship is genuine and continuing, and the couple lived together, or do not live separately and apart on a permanent basis: s.5F(2).

16. The applicant had been invited specifically by the Department to provide a copy of the marriage certificate. The applicant had been invited by the Tribunal to provide evidence of his relationship with [Ms A]. Prior to the hearing the applicant had not provided the Tribunal with a copy of the marriage certificate.

17. In the hearing the Tribunal asked the applicant why he did not provide a copy of the marriage certificate to the Department. The applicant stated that [Ms A] had depression and he needed to stay look after her. He stated he had the marriage certificate and his lawyer did not tell him that he had to provide this to the Department. The Tribunal asked the applicant whether he was married to [Ms A]. The applicant stated that he had the marriage certificate at home. The applicant stated in the hearing he would provide information to the Tribunal after the hearing. The Tribunal advised the applicant would have the opportunity to provide further evidence and information after the hearing.

18. The Tribunal notes that the applicant referred to [Ms A] as his wife, and the two witnesses at the hearing gave evidence that the parties were married. In the oral evidence at the hearing, and the written evidence provided to the Tribunal, the date of the marriage between the applicant and [Ms A] was stated to be [in] December 2015.

19. After the hearing the Tribunal wrote to the applicant, referring to his evidence that he would provide additional evidence to the Tribunal. In the letter the Tribunal advised that it wished to give the applicant the opportunity to provide that evidence that he had referred to in the hearing, and invited him to provide any additional evidence in support of his application for the review within 14 days. The applicant provided a response with attached documents to a s.359A letter sent to him by the Tribunal, but did not provide any additional evidence, information or documents in relation to his marriage. The applicant did not provide the Tribunal with a copy of the marriage certificate.

20. The Tribunal wrote to the applicant again and specifically invited the applicant to provide the copy of the marriage certificate. This invitation was sent to the applicant on 18 May 2022. On 24 May 2022 the applicant provided the Tribunal with a copy of the marriage certificate, which recorded he and [Ms A] were married at [Suburb 1] [in] December 2015.  The marriage certificate was registered [in] March 2016 under the Victorian Births, Deaths and Marriages Registration Act.

21. Based on the registered marriage certificate, I am satisfied that the applicant and [Ms A] are validly married for the purposes of the Marriages Act (Cwlth) 1958.

22. The Tribunal is satisfied based on the registered marriage certificate that the applicant and [Ms A] are validly and legally married. For these reasons the Tribunal finds that on the documentary evidence before it, the parties are married to each other under a marriage that is valid for the purposes of the Act, and therefore the applicant meets the requirements of s.5F(2)(a).

    Do the parties meet the requirement for a spousal relationship?

23. As the parties are married to each other under a marriage that is valid for the purposes of the Act, they satisfy an essential requirement of a married relationship, namely s.5F(2)(a), but also need to meet the remaining requirements for a spousal relationship as defined in s.5F(2)(b)-(d) of the Act. A person is in a spousal relationship with another person to whom they are married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, and the couple live together, or do not live separately and apart on a permanent basis: s.5F(2)(b)-(d).

24. To reach any decision in relation to whether the applicant is the spouse of [Ms A], the decisionmaker is required to consider the circumstances of the relationship, and make findings in relation to the circumstances of the relationship as set out in the regulations. The matters to be considered by the decisionmaker are set out in r.1.15A(3). The regulations require that the decisionmaker consider specific issues of the circumstances of the relationship, under four headings, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

25. The circumstances of the relationship as set out in the regulations were discussed with the applicant in the hearing.

    Assessment of the Relevant Evidence

26. The applicant provided a written statement to the Tribunal prior to the hearing that he and his wife had enjoyed a happy marital relationship for five years. The applicant stated that [Ms A] had thought too much and worried about their circumstances, their marriage and their future, as well as the development of the covid-19 pandemic. The applicant stated that [Ms A] had developed a serious depression, and he consequently advised her to stay at home while he went to work and took care of her.

27. There is no medical evidence before the Tribunal in relation to any ill health or mental health issues concerning [Ms A]. The applicant stated that [Ms A] had consulted a doctor on two occasions. The applicant provided the Tribunal with the scripts in his name prescribed November 2020 which indicate that he had experienced asthma or other respiratory illnesses at that time.

28. The oral evidence before the Tribunal is that after the parties married [in] December 2015, after which they resided in two shared houses in [Suburb 2], for six months and then for 10 months, specifically at [Address 2], and then at [Address 3]. The applicant and [Ms A], and the aunt of the applicant all stated that in October 2017 the couple moved together into a room in the applicant’s aunt’s home at [Address 1]. There is extensive documentary evidence in the form of correspondence to, and records of the applicant’s and [Ms A’s] address that confirms both the applicant and [Ms A] have resided at [Address 1] since at least 2018. The applicant’s aunt told the Tribunal that she had prepared the rental agreement and rental receipts for the benefit of the Tribunal, as evidence that the applicant (her nephew) and [Ms A] had resided at her home since 2017. The applicant’s aunt stated that the applicant and [Ms A] had resided in her home, as per the rental agreement, since October 2017.  She stated that she did not issue a receipt to her nephew each month for payment of the rent, but had prepared them to confirm the rent had been paid by the applicant and [Ms A] each month since 16 October 2017.

29. The applicant and [Ms A] gave evidence of residing at the applicant’s aunt’s home, and stated the applicant does most of the cooking for them, and the applicant does the domestic chores for the room, and that they spent most of their time in their room watching TV. The applicant and [Ms A] both told the Tribunal the last movie they watched together was [title].

30. [Ms A] told the Tribunal that she has two private bank accounts that the applicant cannot access. She stated this is because it operates as a savings account. Both the applicant and [Ms A] stated that they were saving and in the future they wish to buy a house together. [Ms A] stated they had saved about $35,000, and the applicant stated they had saved between $40,000 and $50,000. As the information provided to the Tribunal is that [Ms A] controls the savings account, the inconsistency in the estimated amount is not of concern to the Tribunal. [Ms A] and the applicant stated they have a joint bank account together, and the Tribunal was provided with copies of the joint bank account statements. The Tribunal was not provided with information or copies of bank statements relevant to a long-term savings account.

31. There are statutory declarations provided to the Tribunal all dated October 2021, from [Ms A’s] mother, two from friends of [Ms A’s] mother and one from friends of the applicant and [Ms A]. These documents are written evidence that friends of the parties, including the mother of [Ms A] consider the relationship to be genuine.

32. The mother of [Ms A] provided a statement attached to her statutory declaration prior to the hearing in which she declared that her daughter became so worried waiting for the application to be processed that she became depressed. The mother of [Ms A] declared that she advised her daughter to see a psychologist and take medication but her daughter refused to do so. In the statement she described her daughter as being angry and going to her room and slamming the door. She stated her daughter refused to talk to a psychologist and refused to discuss the situation with her mother. She declares that the applicant is taking care of her daughter.

33. There was no written statement from [Ms A] provided to the Department or to the Tribunal. [Ms A] attended the hearing and gave evidence to the Tribunal. [Ms A] stated that she got depression in 2017 and that when she becomes sad she doesn’t like to speak. She stated she stays in her room.  She stated doesn’t like to see doctors. She stated the applicant cares for her by brushing her hair or cutting her nails and making sure she is fed. [Ms A] told the Tribunal that she met the applicant when she was aged [age] in 2014, and that she had completed a diploma at university and then had employment. [Ms A] gave evidence that she experienced mental health issues which made her feel isolated and anxious, and she did not trust doctors or psychologists to treat her.

34. In the hearing the applicant’s aunt, and [Ms A’s] mother gave evidence and they both stated that [Ms A] had depression. The applicant’s aunt stated that [Ms A] and the applicant lived in her home since 2017. The mother of [Ms A] stated she saw her daughter every week on a Saturday.

35. [Ms A] and the applicant stated that [Ms A] had ceased employment in 2019. [Ms A] told the Tribunal that she had gone to university and completed a [diploma]. She stated she had worked as a casual at the shop in [Suburb 3], from halfway through 2015 until halfway through 2017. [Ms A] stated she had started work at [Employer 1] in early 2017.  [Ms A] stated she ceased working completely in September 2019 and did not work again until she commenced as [an Occupation 1] on 21 February 2022. She stated she did not work because of her illness.

1. [Ms A] also stated in her evidence to the Tribunal, that she had never been advised she was to be the sponsor in the applicant’s application for the visa and she did not understand what the role of sponsor was. She stated that she was the partner in the relationship, but she had never signed a form or signed a statement or given any undertaking in relation to the relationship or the application for the visa, or made any sponsorship undertaking or commitment. She stated she did not understand the process for the application for the visa which was made in 2016 and the arrangements between the applicant and his lawyer at that time were made in Vietnamese and were not translated to her.

   S.359A information and procedure and assessment of responses

2. After the hearing the Tribunal wrote to the applicant in a letter dated 12 April 2022, and put adverse information to the applicant pursuant to s.359A of the Act. In this letter the Tribunal provided particulars of two items of information identified as (a) and (b).

3. In the written information inviting the applicant to comment or respond, the Tribunal set out as particulars (a) that [Ms A] had stated in the hearing she was not told that she was to be the sponsor, and she did not know what the role of the sponsor was, and that in her evidence she had stated she did not understand much of the application for the visa made in 2016 and she did not remember signing any form or making any statement, or giving any undertaking as a sponsor at the time of the application for the visa. The Tribunal advised this is relevant if the Tribunal is to be satisfied that the applicant was sponsored at the time of application. The Tribunal advised that if it is not satisfied the applicant was sponsored at the time of application it would not be satisfied that the applicant met the requirements of cl.820.211(2)(c), and this would be the reason or part of the reason for affirming the decision under review.

4. In the written information inviting the applicant to comment or respond, the Tribunal set out as particulars (b) that in the hearing both the applicant and [Ms A] stated she had not worked since September 2019 when she became unwell, and she recommenced work again in February 2022. The Tribunal advised that the applicant had provided the Tribunal with an ATO notice of assessment in [Ms A’s] name recording that in the financial year ending June 2020 she earned $26,613. The Tribunal also advised that the applicant had provided the Tribunal with ATO notices of assessment in [Ms A’s] name for the financial year ending June 2019 recording she earned $37,951, and for the financial year ending June 2018 recording [Ms A] earned $38,539, and for the financial year ending June 2017 recording [Ms A] earned $15,689. The Tribunal noted that the earnings recorded in the financial year ending June 2020 are not consistent with earnings of 2 to 3 months (1/6 or one quarter) of the previous three years’ average annual earnings. The ATO assessment of [Ms A’s] earnings for the year ending June 2020, $26,613, is approximately two thirds of the previous two years earnings. The Tribunal advised this is relevant as it indicates that [Ms A] continued to work past September 2019, and indicates that her earnings in sales may be consistent with the periods of time Victoria was not in lockdown in the financial year ending June 2020.

5. The Tribunal advised that this information was relevant as it indicates that the oral evidence in the hearing from the applicant and [Ms A] is not consistent with the documentary evidence of the ATO notices of assessments the applicant had provided. The Tribunal advised that if it finds that the oral evidence in the hearing is not reliable, this is relevant as there is no documentary evidence of the relationship provided to the Tribunal relevant to the time of application, and the Tribunal is asked to rely on the oral evidence in the hearing in relation to its time of application findings. The Tribunal advised that if it determines that the oral evidence in the hearing is unreliable, or may be unreliable, this may be a reason for finding that there is not sufficient evidence that the applicant is the spouse or de facto partner of [Ms A] at the time of application. This would be a reason or part of the reason for finding that the applicant is not the spouse or de facto partner of [Ms A] within the meaning of s.5F or s.5CB at the time of application and that the applicant would not meet the requirements of cl.820.211(2)(a), and this would be the reason or part of the reason for affirming the decision under review.

6. The applicant responded to the letter of the Tribunal dated 12 April 2022, in writing by letter dated 22 April 2022. He stated [Ms A] worked from 1 July 2019 to 13 September 2019 and then ceased working. He stated she earned a total income of $14,733.80 which included annual leave of $4493.13. The applicant attached income records from [Employer 1]. The applicant stated he does not know where the amount recorded in the Tribunal’s letter that [Ms A] earned $26,613 in 2020 came from. The applicant asked the Tribunal to check the amount.

7. The Tribunal has relied on the ATO notice of assessment for the year ending June 2020 in the name of [Ms A] provided by the applicant, confirming that she earned $26,613 in the year ending June 2020. The Tribunal is satisfied that [Ms A] earned $26,613 in the period 1 July 2019 and ending 30 June 2020, based on the assessment by the Australian Taxation Office. The Tribunal has also relied on the ATO notices of assessment the applicant provided in the name of [Ms A] in relation to the earnings of [Ms A] in the financial years ending June 2019 and June 2018 and June 2017. The Tribunal finds that the ATO notice of assessment is the correct assessment of the earnings of [Ms A] in the financial year July 2019 to June 2020. The Tribunal is satisfied that [Ms A] worked at  [Employer 1], and accepts the income records provided by the applicant in relation to her employment at [Employer 1] in 2019 reflect her earnings from that employer. However based on the ATO notice of assessment for the financial year ending June 2020, the Tribunal is satisfied that [Ms A] must have provided records of earnings totalling $26,613 for that financial year to the ATO. The Tribunal therefore finds that the amount recorded as [Ms A’s] total earnings on her ATO notice of assessment for the financial year ending June 2020 is the correct earnings for [Ms A] for that financial year. The Tribunal accepts she possibly she worked at other venues than [Employer 1] during the relevant period.

8. The Tribunal has considered the applicant’s response to the information identified as particulars (b).  The Tribunal has relied on the information provided by the applicant in the form of the ATO notices of assessment in the name of [Ms A] for the financial years ending June 2017, June 2018, June 2019 and June 2020. The Tribunal finds that these ATO notices of assessment correctly reflect the earnings of [Ms A] for the respective years. The Tribunal has considered the applicant’s response but finds it does not explain the inconsistency in the earnings recorded by [Ms A] in the information provided to the ATO, and subsequently recorded in her notice of assessment for the year ending June 2020. Based on the information in the ATO notice of assessment in [Ms A’s] name dated 30 June 2020 recording that she earned $26,613, and in comparison with her earnings for previous years, the Tribunal is not satisfied that [Ms A] only worked for 2 to 3 months in that financial year. The Tribunal is not satisfied that [Ms A] ceased work in September 2019. The Tribunal finds that the applicant and [Ms A] have not provided reliable evidence in relation to [Ms A’s] employment and periods of employment in the period 2019 to 2020.

9. The applicant did not provide any submissions in his written response in relation to the information that [Ms A] had not provided a sponsorship form had not understood her role as sponsor had not given any undertaking as a sponsor in the application for his visa.

10. The Tribunal has considered the applicant’s response to the information provided in its letter to the applicant dated 12 April 2022.  The Tribunal notes that the applicant did not provide any response to the particulars in of information identified as particulars (a). The Tribunal  concludes from the lack of response that the applicant accepts [Ms A’s] evidence that she was not told she was to be the sponsor, she did not know what the role of the sponsor was in relation to the visa application, she did not understand much of the process in relation to the application for the visa lodged in 2016, and she does not remember signing any formal making any statement or giving any undertaking as a sponsor in relation to the application for the visa.

11. It is relevant to my assessment of the evidence before me, that [Ms A] had not provided any statement or written submission to the Department or to the Tribunal, and had not provided a sponsorship form or signed any form of sponsorship in relation to the visa application. The reason offered to the Tribunal in the hearing as to why [Ms A] had not previously provided any information in support of the application for the visa, was due to her poor mental health. It is relevant to my assessment of the credibility of the evidence before me, and the assessment of the sponsorship requirements and the assessment of whether the applicant is the spouse of the sponsor at the time of application, that the applicant and [Ms A] both stated that due to [Ms A’s] poor mental health, she ceased work in September 2019. Therefore, the information provided to the Tribunal by the applicant, in the form of the ATO notices of assessment in [Ms A’s] name that indicate that [Ms A] had continued to be employed and earn an income after September 2019 is relevant to my assessment of the evidence before me in this review.

12. My conclusion is that [Ms A] was employed after September 2019, and that [Ms A] was not in poor mental health as claimed, but alternatively was well and able to continue working on and after September 2019. The applicant has not provided any medical report in relation to [Ms A], and I am not satisfied that [Ms A] ceased work for medical reasons in September 2019. The Tribunal is therefore not satisfied that the reason there was no evidence provided to the Department at the time of application or in response to the Department’s request for information, history statements, sponsorship form and evidence of the circumstances of the relationship from [Ms A] was due to her poor mental health.

13. The Tribunal has considered the absence of any sponsorship form or statement by [Ms A]. As stated above, the Tribunal is not satisfied that the absence of any sponsorship form or undertaking or statement of sponsorship by [Ms A] is due to any mental health issue. The Tribunal has considered [Ms A’s] evidence that she did not undertake the role of sponsor and did not understand what the role sponsor was, and did not sign a form or make a statement or give any undertaking as a sponsor and did not participate in the application for the visa as a sponsor. The Tribunal accepts this evidence from [Ms A]. The Tribunal has considered the applicant has not provided any evidence or submission in response to this information provided by the Tribunal. The Tribunal finds that the evidence before it indicates that at the time of application the applicant was not sponsored in relation to the application for the visa.

14. After the hearing the Tribunal wrote a second letter pursuant to s.359A of the Act dated 18 May 2022. In this letter the Tribunal set out the particulars of the information to which it invited the applicant to respond, similar to the following:-

15. in the hearing of the applicant and [Ms A] stated they resided together in two properties of shared accommodation at [Address 2], and [Address 3] after their marriage [in] December 2015, before moving together into a room at the applicant’s aunt’s house at [Address 1] in 2017. The applicant provided the Tribunal with a copy of the signed rental agreement which states the arrangement for the applicant and [Ms A] to live at [Address 1] commenced on 16 October 2017;

16. the applicant provided the Tribunal with his ATO assessment notice for the year ending 30 June 2017, issued 18 August 2017 which records the applicant’s residence as [Address 1]. The applicant provided the Tribunal with [Ms A’s] ATO tax assessment notice for the year ending 30 June 2017, issued 14 July 2017 which records her residential address as [Address 4];

17. the information the applicant provided to the Tribunal is that the applicant and [Ms A] provided information to the ATO at the end of the financial year in 2017 that the applicant and [Ms A] resided at separate addresses in 2017 at the time of their tax return and did not reside together the shared house accommodation addresses in [Suburb 2] where the applicant and [Ms A] had both stated they resided together in the oral evidence in the hearing. The applicant and [Ms A’s] evidence to the Tribunal appears to be inconsistent and different to the information that the applicant and [Ms A] provided to the ATO.

18. The Tribunal stated in the letter to the applicant dated 18 May 2022 that this information is relevant to the review because if the Tribunal relies on the information that the applicant and [Ms A] provided to the ATO in mid 2017 in relation to their residential addresses, the Tribunal may not find that the applicant and [Ms A] were residing together at that time as they claimed in the oral evidence. The Tribunal further stated this information is relevant because if the Tribunal relies on the information that the applicant and [Ms A] provided to the ATO, it may not be satisfied that the applicant [Ms A] were living together at the addresses where they stated they were living prior to moving to [Address 1] in October 2017. The Tribunal further stated that if it relies on the information that the applicant and [Ms A] provided to the ATO in mid 2017 it may conclude that the applicant and [Ms A] were not living together and were living separately and apart, on a permanent basis at the time of application for the visa. The Tribunal further stated that if it relies on the information that the applicant and [Ms A] provided to the ATO in mid 2017, the Tribunal may not be satisfied that the applicant and [Ms A] had provided reliable and truthful evidence to the Tribunal in the hearing.

19. The Tribunal advised the applicant that the consequences of the Tribunal relying on the evidence the applicant had provided to the ATO in 2017 may be that the Tribunal would not be satisfied that the applicant was the spouse or de facto partner of [Ms A] within the meaning of s.5F(2) or s.5CB(2) of the Act and this would be the reason or part of the reason for affirming the decision under review.

20. In the letter to the applicant the Tribunal invited the applicant to give comments on or respond to the above information in writing, and invited the applicant to provide his comments or response by 1 June 2022. The Tribunal advised the applicant that if he could not provide his written comments of response by 1 June 2022 he could request an extension of time in which to provide the comments or response. The Tribunal advised the applicant that if he wished to make a request for an extension of time, the request for an extension of time must be received by the Tribunal by 1 June 2022.

21. The Tribunal did not receive any response to its letter dated 18 May 2022 from the applicant in response to the information set out in that letter. The Tribunal did not receive any request from the applicant for an extension of time in which to provide his comments or response.

22. The Tribunal notes that it did receive a submission from the applicant on 24 May 2022, namely a copy of his registered marriage certificate. There was no reference to the above invitation to provide comments or responses to the s.359A information, in the submission received 24 May 2022 which contained the copy of the registered marriage certificate.

23. The applicant has provided a collection of documentary evidence to the Tribunal that supports the claim that the applicant and [Ms A] resided at [Address 1], at the home of his aunt from 2018, and onwards. There is little information before the Tribunal in relation to where the parties resided prior to [Address 1] from October 2017, excluding the ATO notices of assessment provided by the applicant for the years ending June 2017 in the name of the applicant and [Ms A]. The Tribunal notes that the ATO notice of assessment in the applicant’s name for the financial year ending June 2017 records that the applicant was already residing at his aunt’s house at [Address 1] at that time.

24. The Tribunal has carefully considered the written and oral evidence before it. The Tribunal has noted there was no response from the applicant to its invitation to comment or respond to the information contained in the ATO notices of assessment for the financial years ending June 2017 in the names of the applicant and [Ms A] which recorded separate residential addresses for both the applicant and [Ms A], and recorded different residential addresses for both the applicant and [Ms A] to the two shared house addresses they claimed they resided at together in the hearing, in 2016 and 2017, over a 16 month period, prior to moving to [Address 1]  on 16 October 2017.

25. The Tribunal has considered that no information was provided to the Department in addition to the application form. The Tribunal notes that the application form was lodged online on 12 April 2016, and the applicant recorded his residential address in the application form as [Address 2].

26. The Tribunal has considered the addresses the applicant and [Ms A] provided to the ATO for the financial year ending 30 June 2017. The Tribunal has considered that the applicant did not respond to the information in relation to the addresses provided by the applicant and [Ms A] to the ATO and recorded in the ATO notices of assessment. The Tribunal has decided it can rely on the information the applicant and [Ms A] provided to the ATO at the end of the financial year in June 2017 and finds at that time, mid 2017,  that the applicant was residing with his aunt at [Address 1] and [Ms A] was residing at a separate address at [Address 4].

27. Further, the Tribunal finds based on the information contained in the ATO notices of assessment for the year ending 2017 that the applicant and [Ms A] have not provided reliable or truthful evidence to the Tribunal in relation to where they resided in 2017, and have not provided reliable or truthful evidence to the Tribunal in relation to their evidence that they were residing together in 2017.

28. The Tribunal is not satisfied that the parties resided at the two shared accommodation addresses after their marriage as claimed. Based on its assessment of the evidence, the Tribunal is not satisfied that the parties resided together and shared a household in the shared accommodation properties at [Address 2] or at [Address 3]. The Tribunal finds the parties were living at separate addresses after their marriage.

    Assessment of the circumstances of the relationship

29. In forming an opinion whether they are in a spousal or 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.

30. The applicant has provided evidence to the Tribunal which I have carefully considered in my assessment of the claimed spousal relationship between the applicant and [Ms A]. The application for the visa was made online on 12 April 2016.

1. To meet the requirements of cl.820.211(2), the applicant must satisfy the Tribunal that he satisfies the criteria at the time of application.

2. The Tribunal notes that in considering evidence relevant to the time of application, this evidence would include information about the relationship prior to the date the application was made, namely 12 April 2016, and for an approximate period after the time of application. It is not an assessment of evidence just on the actual date of the application for the visa. The Tribunal considers evidence provided around the date of the application for the visa, and this can include several months after the time of application.

3. The Tribunal has considered all the evidence before it and considered whether the evidence provided to the Tribunal in late 2021 and orally at the hearing, can establish time of application requirements pursuant to the principles espoused in Bretag v MILGEA. The Tribunal is not satisfied that the evidence of the subsequent history of the relationship can be relied on to logically establish the existence or nonexistence of facts relevant to the circumstances of the claimed relationship at the time of application. This is because the Tribunal has found that the oral evidence before it from the applicant and [Ms A] is not reliable or truthful. This is also because the evidence before the Tribunal indicates that the applicant and [Ms A] were not residing together in 2017. 

4. The applicant did not provide documents in support of the application for the visa in addition to this application form, until he provided extensive documents to the Tribunal in late 2021. These documents included the ATO notices of assessment in his and [Ms A’s] name for the financial years ending June 2017, and copies of the applicant’s and [Ms A’s] joint [Bank 1] account from July 2017, and the rental agreement for the applicant and [Ms A] to stay at his aunt’s house at [Address 1] from 16 October 2017, which are the earliest dated documents provided in support of the application.

5. The applicant provided a bundle of invoices, receipts and correspondence to the Tribunal dated between 2019 to 2021. The applicant provided copies of individual and joint bank statements and ATO notices of assessment not referred to in the above paragraph dated 2018 onwards, and some correspondence to [Address 1] dated 2018.

6. The applicant has not provided any documents in addition to the application for the visa that are dated at the time of application, namely 12 April 2016. The Tribunal has found that the ATO notices of assessment from the financial year ending June 2017 in the name of the applicant and [Ms A], provided by the applicant, are reliable evidence that the applicant and [Ms A] were living separately and apart in mid 2017. The applicant provided the rent agreement prepared by his aunt dated 16 October 2017, 18 months after the time of application, as evidence that the applicant and [Ms A] moved into the applicant’s aunt’s home in October 2017. The applicant provided a copy of the joint [Bank 1] account statement dated 11 July 2017 to 11 January 2018, which records the address of [Address 1], [Suburb 2]. Based on the applicant’s ATO notice of assessment for the financial year ending June 2017, I am satisfied the applicant resided at that address in July 2017, but I am not satisfied that [Ms A] resided there, but that she resided at the address in [Suburb 4].

7. Based on the documentary evidence to the Tribunal provided relevant to the time of application, I find that there is insufficient evidence to establish that the applicant and [Ms A] resided together at the time of application. Based on the evidence of the ATO notices of assessment in the applicant and [Ms A’s] name, which is inconsistent with the oral evidence given at the hearing, I find that the applicant and [Ms A] gave unreliable and untruthful evidence at the hearing and that they were not residing together in 2017.

8. These conclusions indicate that at the time of application the Tribunal has limited documentary or written evidence available to it to support the claim that the applicant was the spouse of [Ms A].  Further, the Tribunal finds that the oral evidence at the hearing of the applicant and [Ms A] is not evidence that the Tribunal finds is sufficiently reliable to establish that the applicant was the spouse of [Ms A] at the time of application in the absence of sufficient documentary or written evidence, or other oral evidence.

9. Financial aspects of the relationship:- the Tribunal is satisfied that the applicant and [Ms A] do not jointly owned real estate or other major assets together. The Tribunal is satisfied that the applicant and [Ms A] do not have joint liabilities or debts together. The Tribunal is satisfied based on the joint bank accounts, the earliest of which is dated July 2017, that the applicant and [Ms A] have pooled their financial resources by opening a joint bank account. The Tribunal is satisfied that the time of application both the applicant and [Ms A] were employed, and managed their own individual bank accounts as well as having a joint bank account. There is no evidence before the Tribunal that either the applicant or [Ms A] owes a legal obligation to the other. The Tribunal finds that there is insufficient evidence that the parties shared a household at the time of application, and therefore is not satisfied that the parties shared day-to-day household expenses.

10. The evidence of the financial aspects of the relationship at the time of application is insufficient to support a finding that the applicant and [Ms A] were in a genuine and continuing relationship.

11. Nature of the household: – the Tribunal is satisfied that the applicant and [Ms A] did not have any joint responsibility for the care and support of children. The Tribunal is not satisfied that at the time of application the parties resided together as claimed. The Tribunal finds there is insufficient evidence of the party sharing a household after their marriage. The Tribunal finds that the parties lived at separate residential addresses as provided in the information to the ATO and recorded on the ATO notices of assessment for the financial year ending 2017. The Tribunal does not accept the applicant’s claim of the living arrangements, that the parties resided at shared accommodation houses in [Suburb 2] together after their marriage and before moving to the applicant’s aunt’s house in October 2017. The Tribunal is not satisfied that the parties shared house work as it is not satisfied that the parties were sharing a household at the time of application.

12. The evidence of the nature of the household at the time of indicates that the applicant and [Ms A] were not living together, and were living separately and apart on a permanent basis.

13. Social aspects of the relationship: – the Tribunal has considered the oral evidence of the applicant’s aunt, [Ms A’s] mother and the written evidence of the friends of [Ms A’s] mother, and the friend of the applicant and [Ms A]. The Tribunal has given careful consideration to the evidence that the parties are married, and that the friends and relatives of the parties claim that the relationship is genuine. The Tribunal is satisfied that the applicant and [Ms A] represented themselves to other people as being married to each other at the time of application. The Tribunal is satisfied that in the opinion of the applicant’s aunt and [Ms A’s] mother who gave oral evidence, the relationship is genuine. The Tribunal has considered the two statutory declarations provided in October 2021 by a friend of [Ms A’s] mother, and a friend of the applicant and [Ms A]. Both the deponents of these two statutory declarations declare they do not see the applicant and [Ms A] often, and neither referred to the applicant’s and [Ms A’s] circumstances around the time of application (although they both declared they had known the applicant and [Ms A] for seven years and eight years). The handwritten statutory declaration dated 2 April 2022 from a friend of [Ms A’s] mother, stated he had known [Ms A] for many years and described the commitment of the applicant in caring for her. The deponent did not provide any information about the relationship of the applicant and [Ms A] shortly after their marriage or around the time of application. The Tribunal has considered the evidence of the applicant and sponsor who gave consistent evidence about their current social activities, in that they were limited to spending a lot of time in the room and watching television and movies together due to [Ms A’s] mental health. The Tribunal has limited evidence in relation to the social aspects of the relationship, (apart from the fact that the applicant and [Ms A] were married in December 2015), that is contemporaneous to the time of application.

14. The evidence of the social aspects of the relationship was the strongest evidence in relation to the circumstances of the relationship in this review. However, the evidence of the social aspects of the relationship, excluding the fact that relatives and friends of the applicant to [Ms A] were aware of their marriage, did not include evidence relevant to the time of application, or evidence in relation to the circumstances of the applicant and [Ms A] prior to living at [Address 1] with the applicant’s aunt. The evidence of the social aspects of the relationship is limited, and is not sufficient to indicate the relationship was genuine and continuing at the time of application, or that the parties lived together and not separately and apart at the time of application.

15. Nature of the persons’ commitment to each other: – the Tribunal is satisfied the parties have been married since [December] 2015.  The Tribunal is not satisfied the parties have resided together since their marriage or since the time of application for the reasons set out above. The applicant and [Ms A] stated that the applicant is supportive of [Ms A] and looks after her with her mental health issues, but there was no evidence before the Tribunal of the applicant providing this support at the time of application.

16. The Tribunal has found the evidence given in the hearing that [Ms A] was unable to work after September 2019 due to her declining mental health was not reliable and was inconsistent with [Ms A’s] ATO notice of assessment for the financial year ending June 2020. The Tribunal does not accept the evidence before it from the applicant and [Ms A] that she did not provide documents in relation to the sponsorship or in support of the application for the visa in 2016 or subsequently due to her illness. The Tribunal has noted the applicant has not provided a medical report in relation to [Ms A’s] illness, and the applicant and other witnesses have indicated that [Ms A] refuses to seek medical assistance. I accept that [Ms A], her mother and the applicant’s aunt stated that they felt she had a significant form of psychiatric illness.

17. I accept that [Ms A] had completed a university degree and thereafter was employed, and there is no evidence before the Tribunal that she was unwell at the time of application. There is limited evidence before the Tribunal of companionship or emotional support between the applicant and [Ms A] at the time of application. I accept that at the time of application that the parties had married; the Tribunal finds there is limited evidence that the parties viewed with the relationship is long-term at the time of application. The Tribunal notes there is no statement from either the applicant or [Ms A] about the relationship that was provided at the time of application.

18. The evidence of the nature of the persons’ commitment to each other is not sufficient to indicate that the parties were in a genuine and continuing relationship or that they had a mutual commitment to a shared life as a married couple to the exclusion of all others at the time of application.

19. The Tribunal has considered all the evidence before it, and has considered the circumstances of the relationship as set out in r.1.15A(3). The Tribunal is not satisfied that there is sufficient evidence that the applicant was the spouse of [Ms A] at the time of application, because the Tribunal is not satisfied there is sufficient evidence before it, after an assessment of the circumstances of the relationship, that at the time of application the applicant and [Ms A] were in a genuine and continuing relationship, or had a mutual commitment to a shared life as a married couple to the exclusion of all others. Further the Tribunal is not satisfied that the applicant and [Ms A] lived together, and finds they lived separately and apart, on a permanent basis, at the time of application.

20. For these reasons the Tribunal finds that the applicant was not the spouse of [Ms A] within the meaning of s.5F(2)(b), (c) or (d) at the time of application.

21. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made.

22. Therefore the applicant does not meet the requirements of cl 820.211(2)(a).

    SPONSORSHIP (cl 820.211(2)(c),

    Is the applicant sponsored?

23. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211 (2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

24. Based on the evidence of [Ms A] that she was not told she was to be the sponsor, she did not know what the role of the sponsor was, she did not make an undertaking to be the sponsor, she did not sign any form to be the sponsor and she did not make any statement to be the sponsor, the Tribunal finds that [Ms A] did not understand what it was to be sponsor or undertake to be the sponsor of the applicant in the application for the visa. The Tribunal has considered that it invited the applicant to respond to the evidence of [Ms A], and the applicant did not choose to provide any written comment or response to this evidence.

25. The Tribunal finds that the applicant was not sponsored for the purpose of cl.820.211(2)(c), and therefore the applicant does not meet the requirements of cl.820.211(2)(c).

26. For the above reasons the Tribunal finds that the applicant does not meet the requirements of either cl.820.211(2)(a) or (c) at the time of application, and therefore does not meet the requirements of cl.820.211(2).

27. There are no alternative criteria that apply.

28. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Margie Bourke
    Member