1900234 (Migration)

[2023] AATA 771

1900234 (Migration) [2023] AATA 771 (17 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE: Mr Laurence David Duncan(MARN: 9794834)

CASE NUMBER:  1900234

MEMBER:Anne Grant

DATE:17 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Partner (Temporary) (Class UK) visa, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2) of Schedule 2 to the Regulations

·cl 820.221(1) of Schedule 2 to the Regulations

The Tribunal remits the application for Partner (Temporary) (Class UK) visa, with the direction that the second named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.311(a) of Schedule 2 to the Regulations

Statement made on 17 February 2023 at 2:13pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – child born of another relationship – shared family expenses – unpartnered Social Security status – shared household management – supportive relationship statements – mutual emotional support – applicant’s visits to Indonesia – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.311, 820.321; 1.15
Social Security Act, s 24

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

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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 20 January 2016 on the basis of her relationship with her 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 820.21 because they were not satisfied the visa applicant and sponsor were spouses as defined under s.5F or s.5CB of the Migration Act at the time of application or at the time of decision.

4. The applicants (the review applicant and the visa applicant) appeared before the Tribunal on 8 February 2023 to give evidence and present arguments. They gave evidence separately. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages, though after the initial introduction, the parties gave evidence in English.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant is the spouse of the review applicant (the sponsor) at the time of application and at the time of making this decision.  

8. With the visa application, the parties provided the following information and evidence:

   ·Birth certificate of visa applicant’s son ([Applicant 2]), born on [date];

   ·Visa applicant’s National Police Certificate issued by the Australian Federal Police confirming no disclosable court outcomes, dated [in] December 2015;

   ·Certificate from the [Indonesian consulate] stating the sponsor attended the registry to report his marriage to the visa applicant, dated [in] November 2015;

   ·Marriage certificate issued by the registry of births, deaths & marriages Victoria, confirming both parties married [in] July 2013. The civil service was solemnised by [a named celebrant];

   ·Decorative marriage certificate confirming both parties married [in] July 2013, signed by both parties and the marriage celebrant;

   ·Visa applicant’s Family Card of Indonesia, issued [in] 2015;

   ·Excerpt of birth certificate confirming the visa applicant was born at Jakarta Indonesia on [date];

   ·Visa applicant’s Indonesian passport with an expiry date [in] 2021;

   ·Visa applicant’s Victorian driver licence

   ·Witness statement from [Daughter A], the sponsor’s daughter, in support of the relationship, dated 4 January 2016. [Daughter A] states she first met the visa applicant in February 2013 in Bali;

   ·Witness statement from [Witness A] (exact relationship with sponsor is unknown), dated 13 January 2016, in support of the relationship. [Witness A] has known the sponsor since 2000;

   ·Witness statement from [Witness B] (exact relationship with both parties unknown) dated 27 December 2015, in support of the relationship. [He] met both parties through his wife and have known them since May 2013;

   ·Vehicle registration renewal notice with a payment due date of 12 October 2017, issued to the visa applicant at [Address 1];

   ·Electricity bill issued on 20 October 2017 in joint names, at the address of [Address 1];

   ·Sponsor’s various identity documents, including a Victorian driver licence, proof of age card, Australian passport and health care card;

   ·Centrelink letter dated 4 January 2016, issued to the sponsor at [Address 1];

   ·Statement from visa applicant, undated. In summary, the visa applicant states that she was introduced to the sponsor through a friend, and they first communicated by email/phone from 4 January 2013, and in person in February 2013 in Bali. During this time, she met the sponsor’s daughter and grandchild. Both parties continued to communicate via email/phone afterwards. On 25 May 2013, the visa applicant visited the sponsor and lived with him at his residence. The sponsor introduced his daughters [Daughter B] and [Daughter C] to her. During this stay she decided she wanted to share her life with the sponsor, so they married [in] July 2013.In April 2014, the visa applicant travelled home but lost her passport so she couldn’t return to Australia. After 7 months apart, the sponsor and the visa applicant met in Bali. The visa applicant returned to Australia [in] February 2015. In mid-June 2015, she discovered she was pregnant;

   ·Statement from sponsor, undated. This statement contains similar information already provided by the visa applicant, but from his point of view;

   ·Witness statement from [Daughter B], undated, stating she supports the marriage;

   ·Photographs of both parties with friends and family at [Daughter C’s] birthday [in] November 2017;

   ·Photographs of both parties with family in Bali, at their wedding, Christmas party, and baptism of their son, [Applicant 2]

   ·Booking confirmation for outings, flights, accommodation

   ·Statement of witness from [Leader A] of [Church 1], dated [in] November 2017, stating he performed [Applicant 2’s] dedication at the church in [year], and that he visited both parties and [Applicant 2] at their family home at [Address 1] for a newborn blessing soon after his birth;

   ·Statement from [Leader B], dated 13 November 2017, in support of the relationship;

   ·Letter from Department of Health and Human Services, dated [in] October 2017 listing the household members as the sponsor, visa applicant, and [Applicant 2];

   ·Telephone bill issued on 25 November 2017, addressed to the visa applicant at [Address 1];

   ·[Bank 1] bank statement in joint names for period of May to November 2017;

   ·Ambulance Victoria Membership letter and card, addressed to the visa applicant at [Address 1]l

   ·Department of Human Services tenancy condition report letter dated 14 July 2015. Confirming the sponsor resides at [Address 1];

   ·NAB bank statement in the visa applicant’s name, for the period of July to September 2015, listing her address as [Address 1];

   ·[Bank 1] statement in the visa applicant’s name, for the period of October to December 2014, listing her address as [Address 2];

   ·Medibank tax invoice/receipt, dated 10 August 2013, issued to the visa applicant at [Address 2];

   ·Travel itinerary for the visa applicant travelling from Sydney to Jakarta, travel date [in] April 2014;

   ·[Hotel 1] hotel tax invoice, dated 20 July 2013;

   ·List of key events and dates, leading to the lodgement of the visa;

   ·Submission by the representative at the time ([named]), dated 7 December 2017;

   ·Notification of incorrect answers form provide the reasons refusal of a DNA paternity test for [Applicant 2];

   ·Statutory declaration from the visa applicant, dated 13 December 2017. She declares that she “Have marriage to [the sponsor] since 2013 – present and in genuine relationship, and continuing living together since 2013 – present.”

   ·Sponsor’s National Police Certificate issued by the Australian Federal Police confirming a disclosable court outcome, dated [in] January 2018;

   ·Photographs of both parties with a child

   ·Booking confirmation for accommodation and receipts for play groups for toddlers membership;

   ·Statutory declaration from the sponsor, dated 13 November 2017. In summary, the sponsor states that [Applicant 2] is not related by blood to him, but is still his son. The sponsor loves [Applicant 2] and is willing to take responsibility for his wellbeing. He found out [Applicant 2] was not blood related a few days after his birth as he noticed obvious difference in appearance. After a discussion, the visa applicant admitted she met an unknown man. The sponsor accepted the visa applicant’s apology and declares he still loves [Applicant 2] even though he is not his biological son;

   ·[Car] insurance certificate, listing both the sponsor and visa applicant as drivers for the period of August 2017 to August 2018;

9. On 16 December 2022, the parties provided the following information and evidence directly to the Tribunal:

   ·The representative’s submission, undated, addressing the various aspects of the visa criteria;

   ·

   The visa applicant’s submission dated 16 December 2022, addressing the various aspects of the visa criteria. In summary, she explains that she and the sponsor share the same ethnic background. For cultural reasons, she and the sponsor have found the migration process to be ‘harrowing, demoralising, intrusive, discriminatory and traumatic’. She states she and the sponsor are in a genuine and ongoing relationship for 10 years, [Applicant 2] was born in Australia, that they are a family. She provides a summary in table format to illustrate how they believe they meet the requirements for the visa, as well as a list of evidence. The visa applicant states she and the sponsor have been in a sexually active relationship from 2013 and did not conceive a child. She had a once off sexual encounter with a Caucasian man in Melbourne around late May 2015 and she doesn’t know the personal details of the man. She explains that the conception was not spoken about and caused awkward times in her relationship. Nevertheless, she and the sponsor made plans on how to set up their life as a family unit. The sponsor was supportive during this whole process, including the homebirth. The visa applicant states that [Applicant 2] is almost [age] years old and they have never been apart as a family save for one short trip in November 2017. She states [Applicant 2] doesn’t speak another language other than English and has only lived in Australia, the sponsor has been diagnosed with emphysema, and the sponsor has a disabled daughter. She submits these factors would cause exceptional economic, cultural, emotional and financial harm to the family unit if she and [Applicant 2] are not permitted to remain in Australia;

   
   
   

   ·The sponsor’s submission dated 16 December 2022. In summary, [the sponsor] explains his migration history and details about his children and previous spouse and the responsibility for one of his child who has a disability. He and the visa applicant have very similar cultural background. The migration process has made him extremely uncomfortable as it goes against his culture and values. He explains that ‘it would be normal practice for parent/elder affairs to be very separate from children affairs’. The sponsor has had to rely on his adult daughters to assist him to navigate the requirements. The sponsor had a vasectomy in [earlier year], He states no-one needed to know this information but now he has to make a statement about it. He states ‘Information that I have withheld is that obviously I know and knew that [Applicant 2] was not my biological child (based on vasectomy statistics, albeit there was a small % possibility), but that had no impact on me assuming the role of being his father from the day he was born’. He states his relationship and marriage with the visa applicant is genuine and unconditional, and [Applicant 2] is their blessing;

   ·An undated letter from the visa applicant, requesting that the Tribunal consider this matter on the basis of the submission made and the supporting documentation provided;

   ·Witness statement from [Daughter A], dated 25 November 2022. The witness is the sponsor’s daughter and she has known the visa applicant since 2013;

   ·Photos of the applicants with family at a birthday celebration, summer holidays and Christmas holidays in 2022;

   ·Photos of the family home and family gatherings between the years of 2013 to 2022;

   ·Witness statutory declaration from [Daughter A] (the sponsor’s daughter) dated 13 December 2022. [Daughter A] has known the visa applicant for approximately 10 years;

   ·Witness statutory declaration from [Witness B] (the visa applicant’s friends’ husband), dated 28 November 2022. [He] has met and known both parties for 9 years;

   ·Witness statutory declaration from [Leader B] (minister of religion), dated 27 November 2022. [He] has met and known both parties for 9 years;

   ·Indonesia passport of both the visa applicant and [secondary visa applicant];

   ·Victorian Marriage Certificate which states both parties married [in] July 2013 at [Hotel 1];

   ·Witness statutory declaration from [the sponsor’s Child D], dated 15 December 2022. [Child D] has met and known the visa applicant for 10 years;

   ·Witness statutory declaration from [Witness C] (fellow church member), dated 27 November 2022. [Witness C] has met and known both the visa applicant and the sponsor for 9 years;

   ·Witness statutory declaration from [Neighbour A], dated 28 November 2022. [Neighbour A] has met and known both parties for 7 years;

   ·Family tree of sponsor (excluding the visa applicant and [Applicant 2]) listing all children and grandchildren who are Australian citizens;

   ·Various letters including but not limited to electricity bills, Centrelink and bank statements addressed to both the sponsor and visa applicant, demonstrating the parties share the same residence at [Address 1]. These letters are dated between May 2016 to November 2022;

   ·Letter from the acting principal, dated 23 November 2022 in relation to [Applicant 2];

   ·The visa applicant’s individual tax return and notice of assessment for the years 2017, 2018 and 2019, 2020, 2022, listing her home address as [Address 1];

10. Prior to the hearing, I had noted that there was not much evidence showing the financial nature of the relationship or the pooling of resources.  I wrote to the parties requesting recent banking details and also seeking clarification of whether the sponsor had notified Centrelink of his marriage.  In response the parties sent in bank statements and a letter from Centrelink confirming that they are aware of the marriage but due to the visa applicant’s non-resident status and because she had no work, they had made a decision to apply s.24 of the Social Security Act and therefore treated the sponsor as a single person for the purposes of assessing his rate of pension.

11. I took evidence from the visa applicant and sponsor separately.  I found them both to be forthright and direct in their answers to my questions.  I have no credibility concerns in this case. The evidence I took is discussed below in considering the various aspects of the relationship.

    Whether the parties are in a spouse or de facto relationship

12. 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian Citizen. 

13. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The evidence before me discloses that the parties married in Victoria, Australia [in] July 2013.  The ceremony was celebrated by [a named celebrant] and witnessed by [Leader B] and [Witness D].  A Marriage Certificate has been provided. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

15. I have considered each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship as required by reg 1.15A(2).

16. Financial aspects of the relationship

17. The parties live together in Department of Housing Accommodation which the sponsor pays for from his pension (as he has since before they met). The visa applicant and second applicant are listed on that housing record as tenants at the property. The parties do not own any significant assets.  The banking details provided reflect that the visa applicant and sponsor have separate bank accounts.  They each separately gave evidence that they closed the joint account several years ago because they were just paying fees to have it when, at that time, the sponsor was the only person in the relationship with income.  Once the visa applicant started earning money as [an occupation 1], she put that in her own account and has maintained that account since.  The sponsor receives family tax benefit for the child. 

1. The parties have provided recent bank statements confirming that they each have an individual account and from which they meet shared family expenses. An examination of the bank accounts suggests that each of them contributes to the financial needs of the household as necessary.  Having heard her evidence, I consider that the visa applicant is very conscious of remaining financially independent as much as is possible, partially because of her family history and having always been self-reliant before meeting the sponsor; and partly, perhaps, because of the difficulties they experienced early on in their relationship, discussed further below. Although the visa applicant said that the sponsor had never said or implied any such thing, she said she wanted to make sure that he never thought she was ‘sponging’ off him and wanted to be able to contribute to the family finances by contribution towards the needs of herself and the second applicant. The parties each conceded that they did not pool their funds in one account but both also gave evidence that they each meet the day to day family financial needs from their individual resources as needed.

2. In relation to the ‘unpartnered’ status of the sponsor’s pension, I accept that the Department of Social Security made a decision to treat him as unpartnered despite being given notice of the marriage.  The parties have now updated Centrelink and informed me and I accept that they have started the process of income notification now that the visa applicant is earning some money.   

3. Consideration of the financial aspects of the parties’ relationship suggests that they do share costs and expenses though they do that from separate bank accounts as necessary.  Both parties contribute to the family financial needs.  The fact that Centrelink has been made aware of the marriage is a significant factor and I consider that the financial aspects of the relationship overall suggest that the parties are in a spousal relationship.

   Nature of the household

4. The parties each gave separate evidence that the household runs much as any household with a young child.  The sponsor is retired and is able to cook for and care for the child applicant, whilst the visa applicant shares in those duties but also works part time. The visa applicant sometimes prepares meals for herself because she prefers spicy foods, but the sponsor does most of the cooking because he is home.  The parties gave evidence that they share the chores and the sponsor does the household maintenance such as gardening.  The sponsor and the visa applicant each share the responsibility for taking the child to and picking him up from school.  I accept this evidence.  I found nothing remarkable in the evidence given by the parties about the nature of the household.  Consideration of this factor suggests that the visa applicant and sponsor are in a spousal relationship, and that with the second applicant, they operate as a family unit.

   Social aspects of the relationship

5. The parties have provided several relationship statements in support of the application from family, friends and pastoral connections.  I consider that those statements provide strong support for a finding that the parties are considered to be in a loving and committed marriage, and that they present themselves to their friends, family and the community generally as a married couple.  In particular I place significant weight on the statements from [Leader B] who has known the couple since 2012 or early 2013 and considers himself to be a family friend.  I also place considerable weight on the statements from the sponsor’s daughters and the fact that one of them attended the hearing willing to give supporting evidence if needed.  I accept that the sponsor’s family, including his children and ex wife with whom he continues to co-parent their disabled daughter, have accepted the visa applicant as his life partner and wife.

   Nature of persons' commitment to each other

6. The parties both separately gave evidence that they consider their commitment to the relationship lifelong.  The evidence suggests that they have been together as a family since marriage, and that their marriage has endured in the face of quite significant personal difficulties. I accept that they each have a commitment to each other and their marriage over the long term.

7. Any other circumstances of the relationship.

8. The delegate doubted the visa applicant’s commitment to the relationship and also that there was a mutual commitment to shared life as a married couple to the exclusion of all others.  The reasons for those doubts relate to two main circumstances.   

9. Firstly, the delegate was greatly troubled by the applicant’s decision to depart Australia and remain off shore for 10 months shortly after the marriage. I asked the visa applicant about this and she  explained that she had been [an occupation 2] in Indonesia.  She had long planned to do a hike and climb [at a location in] in Java and those arrangements were in place from before the marriage.  She planned to be in Indonesia for around two months when she departed, finishing in Sumatra after the climb and then returning to Australia.  In that time, she stayed at various room rentals in Jakarta and other parts of the country, using her savings.  However, when she completed the climb in Sumatra, she discovered that she had lost her passport.  She explained that she thought she had lost it in some of the other places she had previously been in Indonesia but it later turned out that it was in a bag under the bed of the Javan room she was renting.  She had previously misplaced her passport three times and knew that she would have to apply formally for a replacement this time and this takes some months.  She only found the passport months later when she was packing up her belongings.  As soon as she found it, she came back to Australia.  I accept this evidence from the visa applicant.

10. The second circumstance which caused concern to the delegate was the birth of the second applicant.  He was conceived after a one-night stand not long after the visa applicant had returned to Australia. Although the delegate appeared to accept that the sponsor had forgiven the visa applicant and accepted and raised the child as his own, they formed a view that this one-night stand was an indicator of a lack of commitment on the part of the visa applicant.  At hearing, the visa applicant gave evidence that she and the sponsor had an argument, and she went out to a hotel, where she met a man and went home with him.  She was very ashamed and didn’t come clean about it until after the child was born.  She gave evidence and I accept that this situation made for some very stressful times in their relationship and also for the applicant personally in the months after she discovered she was pregnant.  This is because her own mother died in childbirth and she was afraid that would happen to her, and also because she was not certain that the child was her husband’s.  During her pregnancy, she regularly travelled to Indonesia for medical check-ups because of her fears related to the pregnancy and family history and because of the cost involved in Australia. 

11. The visa applicant gave evidence that she also had a second reason for going back to Indonesia during the pregnancy.  She has for many years been looking for family connections in Indonesia. Her mother died at her birth.  Her father died when she was a teenager.  She has one half-sister but has been unable to find any other relatives alive.  Her search for family connection has been lifelong.  Once she became pregnant, she desperately hoped to find her father’s or her mother’s family in the hope that they might support her in some way.  Perhaps even come to Australia to help her with the baby. So, her trips to and from Indonesia during her pregnancy were for her own health checks and also to further her personal search.  However, she found no family. 

12. The visa applicant gave evidence that her husband loves [Applicant 2] as his own and is a wonderful father for him.  She is very grateful that he forgave her and they have a strong relationship.  The sponsor confirmed that he had forgiven her and that he loves both the visa applicant and the child very much. He said that although he had a vasectomy many years ago, he was not certain the child was not his until he was born with light coloured hair.  He acknowledged that they went through a difficult time, but he gave evidence that he loves the visa applicant, he understood how it had happened and he has accepted [Applicant 2] as his own. He said that if his wife and son had to leave for Indonesia, he would go back to having a meaningless life.

13. Having discussed these matters which had caused concern to the delegate with the visa applicant and sponsor, I do not share the delegate’s assessment of these factors as being indicative of a contrived or non-genuine relationship. I accept that the relationship has experienced difficulties of quite a severe nature in its’ early stages, but the fact that the parties are still together and living as a family unit is a strong indicator that those difficulties have not, in fact, broken the relationship or their regard for each other and their son. I also note that the application for a partner visa was not lodged until after the pregnancy, a few months before the child’s birth.  This is significant, because the sponsor had strong reasons to doubt his biological connection to the child and still chose to proceed with the visa application.  I accept that the marriage has had significant challenges, but I am satisfied that the visa applicant and sponsor were still married, living together and planning a future together at the time of application.   I am also satisfied that the marriage has endured since the child’s birth and they continue to be in a committed and loving relationship.

14. I have carefully weighed each of the factors and circumstances of the relationship as discussed above and I am satisfied that at the time of application and at the time of making my decision, the visa applicant and sponsor are married to each other under a valid marriage, they have a mutual commitment to a shared life as a married couple to the exclusion of all others, and the relationship between them is genuine and continuing.   I am satisfied that they live together and do not live separately and apart on a permanent basis.   On the basis of the above I am satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision. The applicant satisfies cl 820.211(2)(a).

15. The applicant is sponsored by her spouse.  She satisfies cl 820.211(2(c).

16. At the time of applying for the visa, the applicant held a visitor visa, which is a substantive visa.  Cl 820.211(2)(d) does not apply in her case. Therefore, I am satisfied that the applicant meets cl 820.211(2) and cl 820.221(1).  The second applicant, as her dependent child satisfies the criteria in cl 820.221(1).  On grant of a visa to the primary applicant, he will satisfy cl 820.321.

17. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

18. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations

    ·cl 820.221(1) of Schedule 2 to the Regulations

    The Tribunal remits the application for Partner (Temporary) (Class UK) visas, with the direction that the second named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.311(a) of Schedule 2 to the Regulations and

    Anne Grant
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (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 married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).