1908630 (Migration) - [2021] AATA 2627

1908630 (Migration) [2021] AATA 2627 (19 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1908630
MEMBER:David Barker
DATE:19 April 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
· cl.309.211 of Schedule 2 to the Regulations;
· cl.309.221 of Schedule 2 to the Regulations.

Statement made on 19 April 2021 at 3:03pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – companionship and emotional support to the sponsor – sponsor’s medical condition – parties are validly married – long-term commitment to a spousal relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, r 1.15; Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
Re MILGEA and Dhillon [1990] FCA 144
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 March 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 1 June 2017 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because they were not satisfied on the evidence that the parties were in a genuine and continuing spousal relationship.
The review applicant (the sponsor) was scheduled to appeared before the Tribunal by video through MS Teams on 16 December 2020. Unfortunately, technological difficulties external to the Tribunal prevented the hearing proceeding on that date. The sponsor then appeared before the Tribunal in person on 26 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the mother and sister of the sponsor. Unfortunately, it was not possible to take evidence by phone from the visa applicant in Myanmar due to telecommunication difficulties. As a consequence, a further teleconference was set down for 16 April 2021, at which the Tribunal took oral evidence from the visa applicant and sponsor.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is a national of Myanmar, born in [year]. She is the eldest child in her family. She graduated from [University] in 2003. At the time of the application she was living with her parents and siblings. She declares that she has not had previous significant interpersonal relationships.
The sponsor was born in Myanmar in [year]. He came to Australia in 2008 as a dependent on his mother’s [visa]. He holds a [permanent] visa and is a permanent resident. The sponsor resides with his parents and the family of his sister in Sydney. The sponsor has significant physical, mental and neurological health conditions that result in his dependency on the care and support of his parents, other family members and support services provided through the NDIS for a range of his activities of daily living (ADL).
The sponsor previously, in October 2012, sponsored a woman for a Subclass 300 Prospective Marriage visa. However, this application was withdrawn in April 2014.
The sponsor travelled to Myanmar with his parents between [date] November 2016 and [date] December 2016. His reported reason for this trip was to find a future wife and start a family. The parties are reported to have been introduced to each other by a friend of the sponsor’s cousin. They met for the first time in Myanmar at the home of the sponsor’s cousin on [date] November 2016. It is claimed the parties committed to a shared life together to the exclusion of all others on [date] November 2016. They married on [date] December 2016. The marriage was registered [two days later in] December 2016. The sponsor became unwell and was hospitalised following his return to Australia on [date] December 2016.
The sponsor travelled to Myanmar with his mother on [date] February 2018 to spend time with the applicant. He returned to Australia on [date] March 2018. The sponsor’s health deteriorated further in mid-2018; he was subsequently diagnosed with a serious neurological disorder further to his pre-existing physical and mental health conditions. The medical evidence indicates that symptoms associated with the sponsor’s deteriorated health state in 2018 included: [details deleted].
The parties provided documents to the Department in support of the current application including but not limited to the following: documents regarding their identities and marital status, communication records, financial records, travel records, copies of personal correspondence and other electronic communication, the parties’ marriage certificate, statements by the sponsor and applicant, witness declarations and photographs.
It is apparent from the delegate’s decision record, a copy of which the sponsor provided to the Tribunal, that the delegate was not satisfied with the evidence given by both parties in regard to their marital relationship. In summarising these concerns the delegate stated:
While I find it not unusual for some relationships to develop rapidly, I find no detail on the evidence the applicant and sponsor provided that convinces me as to how such limited contact in time they spent together led to the decision to enter into a serious relationship with each other, or how their relationship developed to reach a decision to commit to marriage. I am not satisfied that the parties’ decision to marry reflects the level of consideration that is usual between two persons making a genuine lifelong commitment to each other. I note that the sponsor stated that it is bad luck according to Chinese traditions for him to marry in 2017 and while I respect the sponsor’s beliefs, I am not satisfied it was a key consideration of the parties to commit to marriage in 2016 given they could otherwise commit to marriage after 2017, if they so decide.
The applicant and sponsor have provided evidence of contact during their times of separation. Logs of calls and emails between the applicant and the sponsor have been provided with this application however, while the core logs showed a high number of calls made, many of the calls were made in durations of a few seconds and therefore would not have given the call and the recipient of the calls any opportunity to hold a meaningful conversation, if the calls were at all successfully connected further, I find the emails to be consistently short, single session emails which do not exhibit interactive conversation or exchange of information which otherwise characterise emails between two parties in a genuine conversation as such, I give the emails in the core logs little weight.
While I am satisfied that the applicant sponsor have legally married, there is little evidence to satisfy me that this relationship is seen as a longer term one by the applicant or sponsor the seemingly rapid development of the relationship from initial meeting to the marriage raises concerns and does not support their claims that they are in a genuine continuing spousal relationship.
I have considered all the evidence and information that has been provided in support of the application including the matters prescribed under regulations 1.15A. I consider that it is not sufficient to demonstrate that the applicant is the spouse, as defined under5F of the act of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Prior to the hearing the review applicant provided documents to the Tribunal including, but not limited to: medical evidence, financial records, communication records, photographs, travel records, statutory declaration from the applicant dated 3 December 2020 and written submissions from the representative.
Information provided to the Tribunal indicates that the sponsor's health condition deteriorated further in 2019, requiring surgery in November [2019]. He was re-hospitalised [in] January 2020 and was in intensive care for four months, until his discharge [in] May 2020 into the care of his parents and elder sister.
Since his discharge from hospital, the sponsor has required 24-hour assistance and is reliant on assistance for nearly all activities of daily living. He was on [date] February 2020 approved for support through the NDIS and has a daily support worker for seven hours each day from Monday to Saturday. It is reported that this level of support is not sufficient to meet the sponsor’s care needs and that at other times, particularly overnight, he is reliant on care provided by his elderly parents or elder sister. It is reported his parents are in their [age range] and unable to provide the level of care required by the sponsor at times he cannot access care through the NDIS. It is reported that that the support he can access from his elder sister is limited due to her care responsibilities towards her own children and her employment commitments.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa and review applicants were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision.
The Tribunal has had regard to the documentary evidence that has been presented with the visa and review applications, which is contained in the Department and Tribunal files. The Tribunal has considered the parties’ oral evidence and that provided by the sister and mother of the sponsor.
In Re MILGEA and Dhillon [1990] FCA 144, the Federal Court stated:
people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as 'community expectations'. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.
An issue the Tribunal is mindful of in the particular circumstances of this case is the extent to which the sponsor’s physical, mental and neurological health conditions have impacted his capacity, both at the time of application and at the time of this decision, to enter into a committed relationship that has the mutuality as to commitment and other aspects such that it presents as a genuine relationship. With respect to the applicant, an issue the Tribunal is mindful of is whether she has sufficient insight into the sponsor’s care and support needs. The Tribunal is mindful of the need to consider whether there is a level of communication and transparency in the relationship that would usually be indicative of a genuine relationship and that any commitment made by the applicant to the relationship has been made knowingly and in a manner indicative of a committed life partner.
The Tribunal is mindful of these things not because the sponsor suffers from disability issues per se, as there is nothing intrinsically problematic about a spousal relationship where one party has significant disabilities and support needs arising from their disability and illness. There is however a distinction, both in the Act and in the way people approach their responsibilities in life, between the role of a spouse and that of a carer, with the former entailing a wider and fuller range of aspects than the limited contractual nature of the latter.
It is not the role of the Tribunal to undertake its own assessment of the sponsor’s cognitive capacity and with respect to this issue is guided by the available medical evidence. Whilst acknowledging this, the Tribunal considers it appropriate to make some observations, as it needs to consider the reliability of the sponsor’s evidence. The Tribunal noted the sponsor displayed difficulty articulating some words but that this appeared to be more reflective of difficulty with enunciation rather than comprehension. The sponsor appeared oriented to time and place during the hearing. He acknowledged having a problem with short and longer term memory, however his awareness of this was perhaps more reassuring than if he was to be oblivious to his area of difficulty. The Tribunal is aware that poor memory recall is at times a smokescreen put forward by applicants caught out by questions they are not either prepared for or confident to answer. The Tribunal is not in a position to know when this is the case and can only rely on an applicant’s response that they are unable to answer a question put to them and weigh the overall reliable evidence that is before it.
The Tribunal’s impression is that the sponsor displayed a capacity to meaningfully participate in the hearing and to respond to questions put to him, where he claimed adequate recall, in a coherent manner.
Whether the parties are in a spouse or de facto relationship
Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant (the sponsor) who is a permanent resident.
‘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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The couple were married in Myanmar on [date] December 2016. A translated Affidavit of Marriage from the Myanmar authorities [in] the Yangon region was submitted to the Department.
There is nothing before the Tribunal to suggest the parties’ marriage is not valid.
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?
Financial aspects of the relationship
In considering the financial aspects of the parties’ relationship, the Tribunal recognises that the parties have resided in different countries and that this can influence the extent to which they have combined their finances.
Joint ownership of real estate or other major assets
The parties do not own any property or other assets of any significance together. As discussed below, it would appear they potentially hold around $20,000 in joint accounts held in Burmese financial institutions.
Joint liabilities
The parties do not have and have not had any form of shared liabilities.
The extent of any pooling of financial resources, especially in relation to major financial commitments
It is claimed the parties have a joint bank account which reflects the extent to which they pool their financial resources. The Departmental file contains a statement for a [Bank 1], [an] account held in the name of the sponsor, covering the period from 22 May 2016 to 21 November 2016. The only source of income going into this account is from the sponsor’s disability support pension from Centrelink. There is no indication that any funds withdrawn from this account went towards financial commitments held by the parties and indeed the statement does not encompass a period in which it is claimed the parties knew each other. The Tribunal places no weight on this document.
The Tribunal has been provided with bank statements from the following financial institutions in Myanmar: [Bank 2], from a fixed deposit account held in the name of the applicant and sponsor which provides balances as at 2 October 2020 of [amount] Kyat ($5,542) and amounts deposited over the period from 27 January 2019 to 10 February 2020 amounting to [amount] Kyat ($15,951); an account in the name of the applicant and sponsor with [Bank 3] states the balance in this account on 10 February 2020 was [amount] Kyat ($5,592); and an account in the name of the applicant and sponsor with [Bank 4] in Yangon states that the balance in that account on 23 February 2018 was [amount] Kyat ($649).
The Tribunal acknowledges that funds have been remitted to the applicant in Myanmar. The applicant gave evidence that these accounts were opened during the sponsor’s trip to Myanmar in 2018. As to the purpose of the accounts, the applicant said they were to provide the capacity to potentially purchase property together in Myanmar, but that this has not eventuated. The sponsor gave evidence that he sent a considerable amount of money to the applicant in Myanmar, perhaps as much as $10,000, but that this was some time ago and he cannot recall exactly when. The sponsor indicated he banks with the [Bank 1] in Australia, but that he is not aware of the current balance in his account, as he no longer operates it directly himself.
The sponsor’s sister gave evidence that the sponsor would withdraw funds from his bank account and arrange for them to be remitted to the applicant from the time they were married up until the onset of his neurological disorder and that since that time he has required her assistance to operate his financial affairs.
As to whether one person in the relationship owes any legal obligation in respect of the other
The is no indication that the parties have any legal obligations with respect to each other.
The basis of any sharing of day to day household expenses
The Tribunal accepts that there is evidence of financial support between the parties over time. Relevantly to this application, it would appear the sponsor has remitted funds to the applicant to assist with her meeting her daily living expenses. The sponsor gave evidence that the applicant has experienced a diminished income during the coronavirus pandemic, due to its impact on the two shops she operates in local markets. There is evidence of funds remitted to the applicant as recently as December 2020 ($500). Whilst the Tribunal has inferred these funds were on a practical level remitted by the sponsor’s sister, I am satisfied that they are from or were derived from the sponsor’s Centrelink income and remitted with his consent.
Overall assessment of the financial aspects of the parties’ relationship

With respect to the financial aspects of the parties’ relationship, the Tribunal accepts that there are difficulties associated with a couple residing in different countries. The Tribunal accepts there is evidence of financial support from the sponsor to the applicant and that this reflects the disparity in their financial circumstances over the period of the coronavirus pandemic.
There was limited evidence of the parties having merged financial affairs at the time of application. This is not surprising given the rapid nature of the development of their relationship and the brief period between their marriage and the application for the partner visa. However, since this time they have developed some shared savings and at hearing they displayed some understanding of the source of each other’s incomes.
The deterioration of the sponsor’s health appears to be such that he now requires assistance to manage his financial affairs and it may be questionable as to whether he has the capacity to understand more than basic financial transactions. Within this constraint, there is no evidence before the Tribunal to suggest he would be uncomfortable or resistant to the applicant taking on the role of assisting him with his financial affairs, which is currently performed by his sister.
In considering the overall financial aspects of the parties’ relationship, the Tribunal is satisfied they give some support to the contention the parties were in a genuine spousal relationship at the time of application and they continue to be so at the time of this decision.
Nature of the household
In respect of the nature of the household, the Tribunal notes that it is difficult to assess these criteria. The sponsor lives in Australia, while the applicant lives in Myanmar.
Joint responsibility for the care and support of children
There is no claim in relation to the current application that the parties have any ongoing responsibility for the care and support of children.
The living arrangements of the parties and any sharing of the responsibility for housework
The Tribunal accepts the parties may have shared accommodation during brief periods around the date of their marriage in 2016 and during the sponsor’s subsequent trip to Myanmar in 2018. The Tribunal does not place significant weight on this finding, as it is not satisfied that it reflects the establishment or operation of a shared household between the applicant and sponsor.
Overall assessment of the nature of the parties’ household arrangements
The Tribunal acknowledges the difficulties in demonstrating household arrangements when the parties reside in different countries but does not consider there is weight to be given to this factor as an indicator that the parties are a couple in a genuine spousal relationship.
Social aspects of the relationship
Whether the persons represent themselves to other people as being in a spousal relationship with each other
The Tribunal acknowledges that the parties registered their marriage in Myanmar and has given some weight to this factor.
There are photographs of the parties together with other people on the Departmental file, including at their wedding celebrations and during the sponsor's subsequent trip to Myanmar in 2018. The Tribunal accepts these photographs show the parties together with both relatives and friends and gives some weight to this evidence. There are no recent photos of the parties together, as there has been no direct contact between them since early 2018. The Tribunal accepts that this has been due to a range of factors, including the illness and death of the applicant's father, the deterioration in the health of the sponsor, and more recently the disruption to international travel associated with the coronavirus pandemic.
As with the manner in which the sponsor’s family conceptualise the parties’ marriage, medical and allied health professionals identify the sponsor’s need to have the applicant with him in Australia, so as to provide him with required care and support, to be an essential feature of their marriage. They do not mention the marriage without this care and support as a prominent feature. There is however reference to the parties’ marriage in evidence provided by health professionals, which whilst clearly not based on their direct observation, would be based on the information provided to them by the sponsor and his family. Of note, a recent report from the sponsor's treating neurologist, [Dr A], dated 24 November 2020, refers to the sponsor’s wife being offshore and of his two year separation from her. Previous reports of [Dr A] and other health professionals refer to the separation between the applicant and sponsor and the benefit he would obtain from her presence with him. In this respect, the Tribunal is satisfied the sponsor represents himself to a range of health professionals as married to the applicant. The Tribunal has placed weight upon this evidence.
The sponsor gave evidence he has informed Centrelink that he is partnered to the applicant and that he has also requested housing assistance from NSW Housing for suitable accommodation if and when the applicant joins him in Australia. The Tribunal accepts these claims and has placed weight upon this evidence.
The applicant, in discussing her circumstances in Myanmar, described the emotional difficulty of frequent inquiries from other stall holders and customers in the markets where she operates a shop as to when she will join her husband in Australia. She describes this as a source of distress to her, as it is viewed that she should be with her husband and not apart from him. The Tribunal found this evidence plausible and has placed weight upon it.
The opinion of the persons’ friends and acquaintances about the nature of the relationship
The Tribunal accepts that the family of the sponsor view the parties’ marriage as genuine and has placed some weight on this factor, however, the extent of this weight is limited due to the emphasis in the evidence of the sponsor’s relatives as to the anticipated role the applicant will have caring for the sponsor.
As to any basis on which the persons plan and undertake joint social activities
The Tribunal accepts the parties have spent some time together but is not persuaded the evidence demonstrates that they have planned and undertaken many social activities together, or that they have shared interests. The Tribunal is not persuaded this is an expectation they have for a spousal relationship.
Assessment of the social aspects of the parties’ relationship
As discussed above, there is little indication the parties jointly plan and undertake social activities together, or indeed that they would in a future life together have much of a capacity to do so. There is evidence that the parties present in their respective societies as members of a couple, albeit with offshore spouses. There is evidence that the sponsor’s family supports the relationship, but no indication as to the view of the applicant ’s relatives. In all, the Tribunal considers it appropriate to give some weight to this aspect as an indicator the parties are in a genuine spousal relationship.
The nature of the persons’ commitment to each other
The duration of the relationship
The parties married in December 2016. Their relationship therefore has a duration of over four years and four months and is appropriately viewed as a long term relationship. The Tribunal has given some weight to this factor.
The length of time during which the persons have lived together
The parties reside in different countries and have not spent more than a few weeks living together. The Tribunal has placed no weight upon this factor.
The degree of companionship and emotional support that the persons draw from each other
The parties have provided evidence of extensive electronic communication and claim to talk with each every day. It would appear their conversations focus a lot on the sponsor’s medical problems and the need for him to remember to take his medication. The delegate realised concern as to the extent to which there is an indication of repeated brief calls in the communication records. In reviewing these records and the parties evidence at hearing on this factor, I am not persuaded the frequency of calls is an endeavour to create a falsely favourable impression as to the extent of electronic communication and [social media] calls between the parties. Rather, I am rather satisfied that the pattern identified by the delegate is plausibly a reflection of compulsive and anxious behaviour by the sponsor seeking reassurance and companionship from the applicant. This is consistent with the applicant’s diagnosis of [a medical condition], as reported by his treating psychiatrist, [Dr B].
Whilst it is apparent to the Tribunal that the marriage is a source of companionship and emotional support to the sponsor, it is less apparent to me that there is reciprocal emotional support available to the applicant. Whilst during the final hearing on 16 April 2021, the sponsor did report some concern, when prompted, as to the applicant’s safety and welfare in Myanmar, given the extent of civil disturbance there currently, the Tribunal was struck by his lack of awareness regarding this factor during previous hearings. The Tribunal has formed the view that the sponsor is primarily focused upon his own circumstances and that he is only, at best, a limited source of emotional support and companionship for the applicant. In making this finding, the Tribunal is aware that this would be by no means a unique feature of the parties’ marriage. The Tribunal notes that the appropriate test is not whether the parties have a ‘good marriage’, however that may be determined, but rather whether the parties have a mutual commitment to a shared life together to the exclusion of others.
With respect to this issue, the Tribunal is satisfied the applicant displayed at hearing an adequate understanding of the sponsor’s medical condition and care needs arising from his medical problems. She appeared to have realistic views as to what was expected of her if she can join the sponsor in Australia and also holds out hope that she may aim to start a family and if appropriate get employment so as to contribute to her and the sponsor’s finances.
As to whether the persons see the relationship as a long term one
The parties claim that they see their relationship as long term. The Tribunal accepts this claim.
Assessment of commitment aspects
The Tribunal notes that an assessment of whether the claimed relationship involves a ‘mutual commitment to a shared life’ requires an assessment of the subjective intentions of the parties.[1] Romantic involvement does not necessarily need to exist for a relationship to be genuine and for the parties to have the relevant commitment, nor is an absence of love and affection determinative.[2] An important issue to consider is whether the parties’ intentions or motives for entering into a relationship are consistent with having a mutual commitment to a shared life.[3] For this reason, an arranged marriage, or a relationship entered into for the purposes of gaining entry into Australia or for some other purpose will not, of itself, fail to meet this requirement, provided both parties have a commitment to a shared life.
[1] In Singh v MIEA [1996] FCA 1429 at [13].
[2] MIBP v Angkawijaya [2016] FCAFC 5 at [3]; Harchandai v MIBP [2017] FCA 1395 at [29]. See also Goraya v Minister for Immigration [2018] FCCA 2017.
[3] Harchandani v MIBP [2017] FCA 1395.
In many respects, the parties’ relationship has, in the view of the Tribunal, features of an arranged marriage. The parties were introduced by a third party known to their respective relatives. They married after a very brief courtship and with little knowledge of each other. They have maintained an apparent commitment to the marriage despite a prolonged physical separation and in the face of a significant deterioration in the health of the sponsor. There is a disparity in the educational background of the parties and also with respect to their experience in the workforce. Nonetheless, the Tribunal is satisfied the parties display a commitment to the marriage and the brevity of their courtship is not a factor to which the Tribunal has given adverse weight.
The Tribunal considers the commitment aspect of the relationship to be a factor it has given weight to as an indicator the parties are in a genuine spousal relationship.
CONCLUSION
The Tribunal is satisfied, considering all of the evidence cumulatively, that the applicants have demonstrated and continue to demonstrate a level of commitment to one another and to their spousal relationship as contemplated in the Regulations. In reaching this conclusion, the Tribunal has taken a wholistic approach and acknowledges that in the particular circumstances of this case there is a clear expectation that the applicant will provide extensive care and support to the sponsor in relation to his multiple disability and medical conditions. In western cultural parlance, there is an expectation for the marriage that she will be there for the sponsor ‘in sickness as well as in health’. The Tribunal does not see that this is fatal to the application, as I am satisfied that the expectations of both the applicant and sponsor that the dimensions of the marriage extend beyond just the physical care needs of the sponsor and that there is an expectation of emotional support and companionship and of the establishment of a household together.
Having considered all of the factors as set out in r.1.15A(3), the Tribunal is satisfied that at the time of application and time of decision the applicants had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a spouse relationship.
Further, the Tribunal is satisfied that the review and visa applicants have, since their marriage, spent time together, albeit limited and that they do not wish to live separately and apart on a permanent basis. Accordingly, the Tribunal finds they meet the requirements of s.5F(2)(d) for a spouse relationship.
On the basis of the above, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.
The Tribunal is satisfied that the sponsor is over the age of 18 years and is not prohibited from being a sponsor.
Therefore, the applicant meets cl.309.211, cl.309.212, cl.309.213 and cl.309.221.
Given the findings above, the appropriate course is to remit the application for the primary visa applicant’s visa to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations;
·cl.309.221 of Schedule 2 to the Regulations.
David Barker
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(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).