1911412 (Migration)

1911412 (Migration) [2024] AATA 961 (3 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Basim Hamdan
CASE NUMBER:  1911412
MEMBER:Meena Sripathy
DATE:3 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(1)(a) of Schedule 2 to the Regulations
·cl 820.221(1)(a) of Schedule 2 to the Regulations.

Statement made on 03 April 2024 at 3:55pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – multiple supportive statements – delayed submission of evidence – delayed wedding and cohabitation – DNA evidence – limited evidence of shared day-to-day expenses – shared household responsibilities – joint social activities – commitment to the children and future plans – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15
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

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).
The applicant applied for the visa on 3 July 2017 on the basis of his relationship with his sponsor, [Wife A]. 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied on the evidence provided that the visa applicant and sponsor were in a spouse relationship within the meaning of that term under the Migration Act and Regulations.
The applicant appeared before the Tribunal on 18 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Wife A], the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was represented in relation to the review.
The issue in the present case is whether the applicant and sponsor are in a spouse relationship within the meaning of that term in s5F of the Act and regulation 1.15A(3) of the Regulations.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicant is [an age]-year-old male born in Baghdad, Iraq. He provides information in his application form of a father [and specified family members] residing in [Country 1], one [sibling] in [Country 2] and one in [Country 3] and one sister residing in Australia. He is sponsored by [Wife A] who is [an age]-year-old Australian permanent resident, also born in Baghdad, Iraq. She has parents [and specified family members] in Australia and [other relatives] in [Country 4]. The parties state they married [in] May 2017 in Sydney, having met in [Country 1] in March 2013. Neither declared any previous relationships.
A request for further information was provided by the Department on 9 August 2018 and the following evidence was before the Department at the time of the delegate’s decision: marriage certificate dated [in] May 2017; drivers licences of the visa applicant and sponsor showing the same address in [Suburb 1], NSW, Statement by [Mr A] stating that the visa applicant and sponsor lived with him at an address in [Suburb 2] (undated), photos of the parties at their church wedding ceremony, a relationship statement from the parties (unsigned and undated); Statutory Declaration from the visa applicant, a receipt for a deposit relating to a wedding party on [a day in] October 2017, letter from [Church 1] certifying the wedding ceremony was booked [in] October 2017, photographs of the applicant and sponsor in social settings with family, Form 888 Statutory Declaration from the sponsor’s parents.
The delegate considered this evidence but was not satisfied that it demonstrated the parties were in a spouse relationship and refused the application on that basis on 17 April 2019.
Evidence before the Tribunal
The visa applicant applied for review to the Tribunal on 9 May 2019. A brief statement was submitted at that time providing a chronology of the application and [other details].
On 2 December 2019 the Tribunal received an email from the review applicant advising a child of the relationship was born on [date] and attaching a copy of an NSW Birth Certificate indicating the sponsor and review applicant as parents of the child.
On 16 May 2023 the Tribunal invited the review applicant to provide updated information and evidence of the spousal relationship.
On 30 May 2023 the Tribunal received the following evidence:
·[Business 1] Roadside Assistance Membership Certificate dated 31 March 2023 indicating Membership holders: [family members] (sic)
·A bundle of photos, without dates or descriptions, which appear to relate to a wedding ceremony and birthday celebrations of a child, and other photos of the couple with a child/children
·Screenshot of sponsor’s Centrelink Profile details – showing her address, and declaration as married to the review applicant, but does not allow him to enquire on her behalf.
·Screenshot of sponsor’s Centrelink Family details indicating two children, one born [date], and another born [specified date], her partner is named (review applicant), and that she does not permit him to discuss her payments.
·Further bundle of photos, without dates or descriptions, some showing [the] children with the couple.
·Statutory Declaration of [Sister-in-law A], dated 29 May 2023, stating that she is the sponsor’s sister-in-law and best friend, knows her for 4 years, affirms that they have ‘a close relationship and perfect intimacy and are transparent and honest with each other’. She asks the AAT to consider the children’s situation and grant their father a visa.
·Statutory Declaration of [Cousin A] dated 29 May 2023, first cousin of the sponsor, affirming that their ‘marriage is genuine and continuing’ referring to having seen ‘how much they love, care and are committed to each other’ and they [number of children].
·Statutory Declaration of [Friend A], dated 29 May 2023, friends of the applicant and sponsor, declaring he has ‘no doubt’ they are in love with one another and are married.
·Statutory Declaration of [Friend B] dated 29 May 2023, knows the review applicant since he married to the review applicant’s sister, affirms they attended his wedding, and he has seen they way they interact with each other.
·Statutory Declaration of [Friend C], dated 29 May 2023, friend of the applicant and sponsor, who ‘firmly feels the relationship is sincere and still going’
·Statutory Declaration of [Mother A], dated 29 May 2023, mother of sponsor, affirms their marriage is genuine, they have made her a grandmother and she is grateful, they live together, and bond has deepened with time
·Statutory Declaration of [Friend D], dated 29 May 2023, family relative, attended the wedding, affirms they are committed and happy and refers to the children of the relationship.
·Statutory Declaration of [Friend E] dated 29 May 2023, who has known the couple since 2018 and attended their wedding party, has been to a few family gatherings and visited house when sponsor gave birth to [children] and witnessed the care and respect the couple have for each other.
·Statutory Declaration of [Father A] dated 29 May 2023, father of sponsor, declares they are married since 2017 and have [children] together.
·Statutory Declaration of [Uncle A] dated 29 May 2023, uncle of review applicant and sponsor, affirms the relationship is genuine since it started, their connection and love has never stopped developing, the sponsor has told him many times about how great a partner the review applicant is.
·[Bank 1] bank statements in applicant and sponsor’s names for periods May - June 2019; December 2019-June 2020; December 2020 -June 2021; and December 2021- June 2022. Few transactions in each of these statements.
·Blue books relating to children born in [specified years].
·NSW Birth Certificate, Baptism Certificate dated [date] and Citizenship Certificate for child [Child A] born [specified date]
·Baptism Certificate dated [date] for child [Child B] born [specified year]
·Marriage Certificate of marriage between review applicant and sponsor dated [in] May 2017
·Tenancy Agreement dated 22 July 2019 naming review applicant and sponsor as tenants from August 2019 to August 2020 for a property at [Suburb 3]
·Statutory Declaration of [Friend F] dated 29 May 2023, close friend of couple.
·Statutory Declaration of [Brother A] dated 29 May 2023, brother of the sponsor, knows the review applicant since they were children, as they are cousins, affirms that he is kind, gentle and kind to his sister and they have a beautiful family.
On 20 July 2023 an officer of the Tribunal, on the presiding member’s instruction, contacted the representative and requested the following: NSW birth certificate for the [child] born in [year], and if available the [next] child referred to, if now born; current Statutory Declarations of the review applicant and sponsor; personal bank statements of the review applicant and sponsor given the limited transactions appearing in the joint bank statements provided.
On 9 August 2023 the Tribunal received:
·Statutory Declaration of review applicant dated 11 August 2023, referring to relationship commencing from the day they exchanged vows [in] May 2018, and their union having been blessed with the birth of [children] of the relationship, he is working as [an occupation 1] and providing for the family, she is homemaker, they share household responsibilities, their focus is on creating a secure and loving environment for their children.
·Statutory Declaration of sponsor dated 11 August 2023 also referring to the date from which they vowed to spend their lives together, [in] May 2018, and their love being blessed with the presence of [the children] of the relationship, the review applicant is working as [an occupation 1] and providing for the family, she is homemaker, they share household responsibilities, their focus is on creating a secure and loving environment for their children
·Copies of blue books for [children] born [on specified dates].
·Photos of the couple and [their] children
·[Utility 1] Electricity bill issued 27 July 2023 for an address in [Suburb 3], in joint names, and for period January to April 2023
On 11 December 2023 the Tribunal received a submission from the representative, addressing the evidence submitted to date under the headings of matters referred to in r.1.15A(3) matters, and attaches the following further documents in support of the application:
·Another bundle of family photos showing the applicant, sponsor and children together.
·A bill for internet service issued 6 December 2023 in applicant’s name, showing address.
·An [Utility 1] bill in joint names issued 23 October 2023 showing address.
·Joint Bank Statement – 2023
·New Year 2024 - Hotel Booking Confirmation
·A photo with family & friends
·Handwritten rent payment receipts for periods June – December 2023
·A [phone] bill in sponsor’s name addressed to her, for November 2023
·Receipt for an online application for a Birth Certificate relating to [Child C], naming applicant and sponsor as parents, requested for Centrelink purposes.
·Copy of Birth Certificate for [Child B] born [specified year]
·Copy of Birth Certificate for child [Child C] born [year], provided to the Tribunal on 18 December 2023.
Tribunal hearing – 18 December 2023
At the commencement of the hearing the Tribunal informed the applicant of the existence of a Certificate issued under s375A by the Department relating to certain documents on the file which, subject to the certificate’s validity, prohibits the Tribunal from disclosing the document or information. The Tribunal also informed the applicant that, notwithstanding the certificate, it has an obligation to put particulars of any adverse information on which it proposes to rely to affirm the decision, to him for comment or response and it will do this during the hearing. The Tribunal invited the applicant and his representative to make submissions on the issue of certificate. They made no comment.
The Tribunal asked the applicant about his current living arrangements and his address history. He gave his current address in [Suburb 3], where he lives with his wife, the sponsor, and their [children]. They have been at this address since August 2019. Prior to that they lived at an address in [Suburb 2] from May 2018, which is the first address he lived at with his wife after their wedding celebration. Prior to the [Suburb 2] address he lived in [Suburb 4] with his sister from the time he arrived in Australia in April 2017. The Tribunal clarified with the applicant that he did not live with the sponsor until May 2018, being the date of his wedding. He confirmed this. He explained after he arrived in Australia on a fiancé visa in April 2017, they registered their legal marriage in May 2017 because his visa required him to marry the sponsor. However, they did not marry properly until May 2018. When asked why the delay he said he had just arrived form [Country 1] and did not yet have the money for the celebration. The Tribunal noted the letter from the Church and reception booking for [a day in] October 2017 and asked if this was further delayed to May 2018. He confirmed that it was delayed to May 2018, and this was the date of their church wedding. After the marriage service they went to the city for photos and had a wedding reception at [a venue in] in [Suburb 4]. After the wedding, they began living together as husband and wife in a granny flat at the [Suburb 2] address.
The Tribunal asked the applicant if he ever lived at the address in [Suburb 1] referred to in various documents on the Department file lodged with the application. He said he never lived at this address. He confirmed this was the address of the sponsor where she lived with her parents. The Tribunal put to him that he provided this address on various documents including statutory declarations and a statement he made stating that he lived with the sponsor from [May] 2017. It also put to him that the application was made on 3 July 2017 and one of the criteria under consideration by the Tribunal is whether he and the sponsor were in a spouse relationship at time of application. His evidence that they did not start to live together as husband and wife until [the day in] May 2018 suggests that his previous information is incorrect and that he may not meet the time of application requirement. In response the applicant said that his previous representative may not have handled the case properly and his understanding was that it was rejected because of incorrect dates provided.
The applicant confirmed he currently lives at [Suburb 3] with his wife and [children], born in [specified years]. He confirmed he is the father of all [the children]. The Tribunal noted that a birth certificate was submitted to the Tribunal for the first child, which was issued some months after the birth. However birth certificates for the [other children] have only recently been submitted to the Tribunal – [one] child’s certificate being provided on the day of the hearing - and asked why the delay in obtaining these. He explained it was because he required three documents to apply for the birth certificate, he had a drivers licence and medicare card but his passport had expired by then. For the first child his passport was valid so he had no problem. He applied for a new passport from the Iraqi authorities but he is still waiting for it. The Tribunal asked how then he obtained the birth certificates now. He said he later was told that if he had an electricity bill in his name that would be sufficient, so he provided that and obtained the birth certificates. The Tribunal put to the applicant that the delayed provision of birth certificates may cause the Tribunal to have some concerns about whether he is the father. He responded he is 100% certain he is. When asked if he would be prepared to provide DNA tests he said he would. The Tribunal asked if he was present at the birth of the children. He said he was, at all [of them].
The Tribunal asked about his other family in Australia. He said he has [specified relatives]. One of his uncle’s is the sponsor’s father, and another one is [Uncle A]. His wife’s family came to Australia from [Country 1] in 2015. He was engaged to the sponsor on 2 May 2015 just before she arrived here [in] May 2015. His [Uncle A] came here many years prior, from [Country 3]. He came to marry a person but did not marry them in the end. He does not know the story of what happened.
The Tribunal asked the applicant about his work. He said until around 3 months ago he worked for his brother-in-law as [an occupation 1], but this is not his trade. He is a [an occupation 2] and was waiting for an opportunity to work in his field. He has been working as [an occupation 2] now for the last three months. He works in [Suburb 5] for a person. He brings his car with his [equipment] to his yard and does jobs for him. He works 4-5 days a week depending on how busy he is. He is paid in cash. Previously he worked for his brother-in-law casually. He paid him $450 per week into his bank account. He did not work every day, just when he was needed. If not needed he went home. He did not do any other work in this period. He did not like this job and was looking for other opportunities. The sponsor was not working. She is a carer for her mother and receives Centrelink payments for that and for the children. She receives about $1900 per fortnight.
The Tribunal asked if he put in a tax return when working as [an occupation 1] and whether he declared his spouse in his return. He said he did. The Tribunal invited him to provide that evidence. It asked if Centrelink was aware the sponsor was married. He said she declared him. The Tribunal noted the evidence provided of declaration to Centrelink and asked why she does not given permission for him to make enquiries. He said he does not know why.
The Tribunal asked about the financial arrangements between them. He said the lease agreement is in his name. The [Utility 1] is under both their names. They have a joint bank account. The Tribunal noted he provided statements of the joint account, but it does not appear to show many transactions or demonstrate pooling of resources. It asked why he has not provided their personal account statements as asked. He said he gets paid $450 and withdraws cash and pays for things. If she asks him to transfer some money to her he does. The Tribunal noted there were accounts XX0649 and X6361 and it would like to see statements from these. He could not recall whose these were and was prepared to provide statements. When asked what he is responsible to pay for he said everything. When they shop they each contribute. The applicant confirmed that she does not have access to his personal account and he does not have access to hers. Regarding other policies in joint names he said they have a car insurance policy which he provided already.

They have not purchased any big items, other than furniture for the house they live in. They have no joint property or loans.
Regarding travel overseas, he confirmed he has not travelled anywhere since he arrived in Australia. The sponsor travelled to [Country 1] in 2020 to see his father who was unwell. She travelled with their son, her father and his sister. He did not accompany them because he didn’t think he could due to his visa status. Domestically, they have had various holidays together including to Nelson Bay, and Terrigal. He cannot remember all of the places but they do go away.
The Tribunal asked the applicant if, prior to this marriage, he has any other relationships with anyone. He said of course before he was engaged, but not since his marriage. The Tribunal asked if he discusses everything with the sponsor, he said yes he tells her everything.
The Tribunal then put to the applicant that it has adverse information before it, being an allegation that his relationship with the sponsor is not genuine but rather contrived for a migration outcome and that in fact he is homosexual, and it invited his comment on this allegation. The applicant said he is shocked and would like to know who made this allegation and what it is based on. The Tribunal said it is at this stage just putting to him that an allegation has been made and is asking for his response. He denied it and said he has never been in any relationship with a man now or in the past. He also said he has never discussed his sexuality with the sponsor because there is nothing to discuss.
Following an adjournment, the Tribunal asked the applicant about his children and their activities. He said his eldest [child] is in childcare [two days a week] and goes to the church once a week on Thursday. On the other days he sometimes takes the children to a park or shopping centre. The other [children] are [ages] respectively and are at home with the sponsor.
The Tribunal asked if there were any topics, or issues, they argue about or disagree on. He said there are not. No one has any health issues. Their plans for the future are about the children.
Evidence from the sponsor
The sponsor confirmed the address history provided by the applicant. She gave consistent evidence that they commenced living together from [May] 2018 after the wedding ceremony and party and they did not live together before that date. She confirmed that they moved into the current address [in August 2019].
The sponsor confirmed she met the applicant in [Country 1] before she came to Australia. They were engaged on 2 May 2015. She said before that he was in [Country 5] and prior to that they were both very young in Iraq. She does not know if she informed Department when she got engaged in 2015 prior to coming to Australia.
Regarding the applicant’s work, she said he is an employed [occupation 2], and sometimes works as [an occupation 1]. He also sometimes works extra jobs on Saturdays, [duties specified]. He used to work for his brother-in-law as [an occupation 1] 6 days a week for around 3 weeks. When asked his income she said it varied, initially it was around $700 per week and then went up to $1800 per week. He was paid cash and into his bank account.
The Tribunal asked how they used the joint account. She said she has her own account where her Centrelink income and child payments are made. She gets carer payment to care for her mother. She declared her relationship to Centrelink and told them he is working, but she does not declare his income regularly. Her carer payment does not vary week to week. Regarding financial arrangements she said he pays the rent, in cash to the landlord, and he pays the bills. The internet bill is paid from his bank account. She pays her [phone] bill from her account. She arranges for the yearly [phone] payment for him for his phone. The sponsor indicated she was familiar with his personal bank account balance, stating that he had around $20,000 in savings. These savings are accumulated from his income. She said he is familiar with her personal account balance also. When asked why she did not give him permission to make enquires with Centrelink, she said she does not recall doing that. She is happy to provide her bank statements to the Tribunal. She confirmed she rarely uses the joint account and pays for most things from her personal account.
The Tribunal asked about the children. She confirmed they have [number] children and he is the father of all [of them]. When asked about why the birth certificates for the [younger children] was delayed, she said they had a problem because his passport had expired. She did not need the birth certificates to apply for child payments with Centrelink, she provided the blue books and hospital report. The sponsor confirmed the birth certificates provided are the first birth certificates obtained.
When asked about household arrangements she said she does the cooking, he helps with the cleaning. They both shop.
Socially, he sometimes goes out with her father and brothers. She does not have other activities. The sponsor said they had no topics they disagree on and there were no health issues. Their future plans all relate to the children. When asked to elaborate on this, she said they will decide what schools to send the children but as of yet they have not decided. The Tribunal asked if they attend church, and if so how regularly. She said they do attend but not regularly. The last time would have been Easter. She then said he recently attended a session in preparation for their youngest [child’s] baptism. She did not attend this session. The other [children] have been baptised. When asked whether they attend other events as a couple, she said they attended an engagement party a month ago of a relative. They go together with the children to visit her parents and his sister.
When asked if she had anything else to tell the Tribunal, the sponsor said she did not.
The review applicant provided the following response to the sponsor’s evidence. He clarified her evidence about his income when working as [an occupation 1] for his brother in law. He stated that, because he is not trained as [an occupation 1], he was initially paid less, $450 per week. Gradually, as his skilled improved his pay was increased and he was subsequently paid $1800 per week from early 2023.
The Tribunal requested the applicant to provide copies of his and the sponsor’s personal bank statements, any further documentary evidence to support his claims regarding the reason he was unable to obtain birth certificates for his children, tax returns showing declaration of each other as spouses to the ATO, and any further evidence relating to their cohabitation since 2019, noting it only has 2 utility bills from this year. The Tribunal indicated it would allow until 15 January for this further information.
The Tribunal also reiterated the issue which arose from the applicant and sponsor’s evidence at the hearing, as to whether the parties were in a spouse relationship at time of application given their evidence that they only commenced living as a married couple from [the day in] May 2018. The representative indicated he will address this issue and provide further evidence by the indicated date.
On 15 January 2024 the Tribunal received the following documents:
·A Statutory Declaration from the applicant dated 12 January 2024
·A Statutory Declaration from sponsor dated 12 January 2024
·Sponsor’s [Bank 1] bank statements for periods between 2017 – 2023
·Applicant’s [Bank 1] bank statements for periods between 2017 – 2023
·[Utility 1] bills in sponsor’s name for periods August 2019 to July 2021 and in joint names from July 2021 to 2023
·Letter from [Tax Agent 1] dated 17 June 2022 confirming applicant is employed by [Employer 1] from 14 March 2022, on a part time basis. His gross earnings are $476.00 per week.
The applicant and sponsor’s Statutory Declarations provide information that contradicts their oral evidence at hearing regarding their living arrangements in the period May 2017 and May 2018. In these new Statutory Declarations, they declare that from the time of their registered marriage [in] May 2017, he moved into the sponsor’s family residence, but the living arrangements were challenging for them in this period and he found himself alternating between her family home and his sister’s home. Regarding the issue of the delay in obtaining birth certificates for the [younger] children, the declarations reiterate the explanation provided at hearing for the delay attributing this to the applicant’s expired passport. On the matter of his willingness to undergo DNA testing, they state he enquired about this but was advised a formal request from the Department or Tribunal would be required.
On 6 March 2024 the applicant the Tribunal sent a formal request to the applicant offering the opportunity to provide DNA evidence of the claimed biological relationship with [all the] children of the sponsor born in [specified years].
On 26 March 2024 the Tribunal received DNA parentage results from [the named agency] confirming the paternity test results for the applicant and [all the] children.
CONSIDERATION
Whether the parties are in a spouse or de facto relationship.
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 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). 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. In the present case, a NSW Marriage Certificate evidencing a marriage that took place at the Registry of Births Deaths and Marriages [in] May 2017 was provided with the application. The Tribunal is satisfied the applicant and sponsor were of marriageable age and were both available to marry and on that basis accepts it is a valid marriage. The Tribunal is satisfied on the evidence that 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?
In addition to being validly married, the Tribunal must be satisfied the applicant and sponsor are in a spouse relationship at time of application and continue to be in a spouse relationship at time of decision. 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.
Below the Tribunal discusses the evidence that is before it relating to the circumstances of the relationship under the headings of matters it is required to consider in r.1.15A(3) of the Regulations, and then makes its assessment of the relationship based on the findings on relevant matters and consideration of all the circumstances, on balance.
Financial aspects of the relationship
The applicant and sponsor have a joint account, and evidence of statements from this account from December 2019 to 2023 has been provided. It is clear from these statements and the applicant and sponsor’s evidence at hearing that the account is not used by both parties, and the evidence of the transactions does not reflect sharing of day-to-day expenses or joint ownership of assets. The applicant’s income from employment began to be deposited into this account only from around March 2022, and the statements show that the money is immediately withdrawn after it is deposited. They both maintain personal accounts, and they told the Tribunal in their oral evidence that they do not share access to each other’s accounts. Upon request by the Tribunal, statements from these accounts were provided. This evidence shows that the sponsor receives her Centrelink income support and family payments into her personal account. The Tribunal also notes that the evidence discloses that the sponsor has not given permission for Centrelink to discuss her payments with her partner, though she has declared her relationship to them.
They gave oral evidence that the applicant pays the rent and utility bills, however the evidence provided of bank statements does not reflect that. Neither the applicant nor sponsor’s personal bank statements demonstrate or reflect sharing of household expenses. The Tribunal observes that the sponsor appeared to be aware of the current account balance of the applicant’s personal account, though he did not know the balance of her account.
No evidence is before the Tribunal to indicate that the applicant and sponsor have jointly acquired any property assets or taken out a joint loan. They referred to having jointly purchased furniture for the property they live in, but no receipts were provided.
On the evidence before the Tribunal, the financial aspects of the relationship do not strongly support the existence of a spouse relationship.
Nature of the household
The Tribunal accepts that the applicant and sponsor have [number] children born since they have been married and living together. Evidence is before the Tribunal to support that they lived together at an address in [Suburb 2] from May 2018 and since August 2019 to date at [Suburb 3]. The applicant and sponsor, at the hearing before the Tribunal and in Statutory Declarations dated 11 August 2023 consistently gave evidence that prior to May 2018, they did not live together. The sponsor was living with her parents in [Suburb 1], and the applicant lived with his sister in [Suburb 4]. After the hearing, they submitted new Statutory Declarations contradicting this evidence, declaring that the applicant moved in with the sponsor’s family after the registry marriage in May 2017, although due to challenges in the living arrangements, spent most of his time at his sister’s home. The Tribunal does not accept this later evidence. They were both unequivocal in their oral testimony, when asked several times by the Tribunal, about their living arrangements in this period and each stated the same in their earlier Statutory Declarations.
On the evidence before it, the Tribunal finds that the applicant and sponsor commenced living at the same address from May 2018, and not before that. In that time, [number] children have been born to them, and the Tribunal accepts this is now confirmed by DNA evidence. The Tribunal accepts they have joint responsibility for the care and support of the children, as the biological parents. It accepts the applicant knew the childcare arrangements for the eldest child and that the [younger] children are at home with the sponsor while he works. It accepts he takes the children to the park or shopping centre on other days. The sponsor receives Centrelink payments for the children and her bank statements demonstrates that she uses these funds for daily living expenses. Although numerous Statutory Declarations from relatives and friends of the parties also attest to the genuineness of the relationship and some refer to the household circumstances, the Tribunal gives this evidence limited weight as evidence of the nature of the household given the limited and relatively generic information contained in these statements.
On balance, placing weight on the circumstances of [children] born to the couple while married and living together, and evidence supporting cohabitation in this period, the Tribunal is satisfied the evidence relating to the nature of the household supports the existence of a spouse relationship.
Social aspects of the relationship
Supporting statements from a range of relatives and friends has been submitted which state that the applicant and sponsor present as a married couple and these family and friends are of the opinion that they are a genuine and happily married couple. There are also numerous photographs of the couple together and with their children socialising with family and community. [Two] children have been baptized at the same Catholic Church at which they were married, and a baptism is being planned for [another]. The sponsor has travelled overseas on one occasion since their marriage, and the evidence before the Tribunal is that this was to [Country 1] to visit the applicant’s father who was unwell. The applicant told the Tribunal he could not accompany them because he believed he was unable to due to his visa status. She travelled with her father, their [child] and his sister. On the evidence of movement records before the Tribunal and the applicant and sponsor’s oral testimony the Tribunal accepts that this travel to take the applicant’s [child] to see his father overseas is consistent with the claimed relationship. The applicant and sponsor gave consistent evidence that they make plans about their children and future.
On the basis of the findings above, the Tribunal is satisfied the evidence of social aspects of the relationship is consistent with a genuine spouse relationship.
Nature of commitment to each other
The Tribunal accepts the applicant and sponsor are first cousins and were engaged since 2015, legally married in May 2017 and commenced living together from May 2018 following a religious wedding. [Number] children have been born of the relationship in [specified years], and evidence in the form of supporting statements from a range of individuals supports that they are recognised as a couple and family by their close relatives, friends and church community. Although neither gave very convincing or persuasive evidence to the Tribunal about how they give each other emotional support or companionship they both emphasised their commitment to their children and future plans in terms of their children.
On balance, giving weight to the duration of the relationship, circumstances of [children] of the relationship and the sponsor’s ongoing support of this application, it accepts they each see the relationship as long term.
Other matters
The Tribunal has considered the allegation relating to the applicant that was given to the Department and provided to the Tribunal, subject to a s375A certificate. In accordance with its procedural fairness obligation, the substance of the allegation was put to the applicant during the hearing and the Tribunal notes it was denied by him. Apart from the allegation, details of which the Tribunal is not at liberty to disclose, there is no other probative evidence before the Tribunal to corroborate it. On the other hand, recent evidence given to the Tribunal, subsequent events (including the birth of children of the relationship) and the substantial passage of time, diminishes the weight the Tribunal can give to the allegation contained in this material.
While not without some concerns, the Tribunal places significant weight in this case on the presence of [number] Australian citizen children, in respect of whom the applicant’s paternity is confirmed. Having considered all of the evidence and circumstances of the relationship the Tribunal concludes, on balance, that the applicant and sponsor are living together, have a mutual commitment to shared life to the exclusion of others and are in a genuine and continuing relationship at time of decision. Regarding the time of application, while the Tribunal found above that they were not living together at that time, it is satisfied that they were not living separately and apart on a permanent basis at that time, taking into consideration the history of their relationship, their legally married status at that time, and the evidence of the subsequent and continuous cohabitation and birth of [these] children of the 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.
Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).
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
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.221(1)(a) of Schedule 2 to the Regulations; and
·cl 820.221(1)(a) of Schedule 2 to the Regulations.
Meena Sripathy
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).

[2024] AATA 961

3 April 2024

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