2107076 (Migration)

[2022] AATA 2984

2107076 (Migration) [2022] AATA 2984 (19 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Jasmine Ruffilli

CASE NUMBER:  2107076

MEMBER:Margie Bourke

DATE:19 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl 801.221(2)(c) of Schedule 2 to the Regulations; and

DECISION:The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 801 (Partner) visa:

· cl.801.311(2)(a) of Schedule 2 to the Regulations.

Statement made on 19 July 2022 at 5:55pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Federal Circuit Court remittal – genuine and continuing relationship – evidence of shared financial affairs – shared responsibility for household – long term relationship – mutual emotional support – dependent child – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 1.03, 1.15A; Schedule 2, cls 801.221, 801.311, 801.321

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 Immigration and Border Protection on 13 October 2016 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant applied for the visa on 8 November 2012 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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. In a decision dated 13 October 2016, the delegate refused to grant the visa on the basis that the first named applicant did not satisfy cl.801.221 because the first named applicant had not provided any information of her relationship as the spouse of the sponsoring partner relevant to the time of the decision.

4. The applicants sought review of the delegate decision from the tribunal.  The tribunal, differently constituted, found it did not have jurisdiction to hear matter.  The application to the tribunal for review was lodged on 2 December 2016. The tribunal, in a decision dated 3 February 2017, found the application for review was not made within the prescribed time period.

5. By order dated [in] April 2021, the Federal Circuit of Australia quashed the decision of the tribunal, on the basis that the notification by the Department of its decision dated 13 October 2016 was defective as it was sent to the incorrect postal address, and not to the applicant’s nominated email address.  The order of the Federal circuit Court remitted the matter back to the tribunal, and the applicants are entitled to seek a merits review of the Department’s decision.

6. The tribunal had regard to its objectives to provide a mechanism for review that is fair, just, informal, economical and quick. The tribunal had regard to the circumstances of the applicants and the nature of the review. The availability of in-person hearings was restricted due to the ongoing pandemic. Due to the long history of the matter, the tribunal considered it preferable to avoid further unnecessary delay. The hearing would not involve a large volume of paperwork to be put to the applicants during the course of the review.  The tribunal was of the view that the conduct of the hearing by video would allow the first named applicant (and the second named applicant, who is a teenage aged minor, if she chose to attend)  to give evidence and present arguments. The tribunal was of the view that the conduct of the hearing by video would allow the tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. For all these reasons the tribunal was of the view that this was an appropriate matter for the hearing to be conducted by way of video.

7. The applicants were invited to attend a hearing by video on 18 July 2022 by an invitation sent to their nominated representative by email on 16 June 2022. The Tribunal received a request for postponement of the hearing also dated 16 June 2022, on the grounds the representative was booked for another matter on the same week, and the applicants requested time to prepare. The tribunal considered the history of the matter. The tribunal considered that the applicants had been provided with 4 ½ weeks notice of the hearing which is reasonable and sufficient time in which to prepare the hearing and to prepare information to provide to the tribunal for the hearing. Further, the tribunal did not consider it was reasonable to postpone the hearing on the basis that an applicant’s representative has another matter booked on the same week. For these reasons the tribunal advised the applicants that the request to postpone had been considered, but the tribunal was of the view that it was reasonable and appropriate that the hearing remain scheduled to proceed on 18 July 2022.

8. The Tribunal invited the first named applicant and the sponsor to attend by video, and specified that they attend on separate devices. The applicants’ representative advised that the first named applicant and sponsor would attend on the same device. The tribunal was advised that the first named applicant and the sponsor did not have the devices or the capability to attend the video hearing on separate devices, and the sponsor either declined or was unable to download the application and use his mobile phone. In correspondence between the applicant and the tribunal, it was indicated that the tribunal specifically wished for the first named applicant and the sponsor to attend on separate devices, and if this was not possible the tribunal would make a room available at the tribunal offices for either the first named applicant or the sponsor to utilise and attend the hearing by video with the video device and technology provided by the tribunal.

9. The applicants appeared before the tribunal on 18 July 2022 to give evidence and present arguments. The two applicants attended together in the same device by video.

10. The sponsor attended the hearing by telephone. The tribunal expressed dissatisfaction with this arrangement as he had been invited to attend by video and video services and a hearing room had been offered by the tribunal to the sponsor to assist facilitate his attendance by video. Further an additional submission had been sent by the applicant’s representative on the Friday night before the hearing and this submission had been unable to be located and provided to the member prior to the commencement of the hearing. There was discussion that the matter be postponed to another day the same week, to allow the submission to be located, and to allow the sponsor to attend the tribunal offices and participate in the video hearing by video. The sponsor then indicated that he was able to download the Microsoft team application onto his mobile phone and attend the hearing by video connection. Whilst this was a helpful contribution to the commencement of the hearing, it is frustrating to the tribunal when participants invited to a hearing are not truthful about their ability to participate by video.

11. The submissions were able to be located, (although they were not provided in compliance with article 6.11 of the Special Measures Practice Directions which are put in place so that all prehearing submissions can be read by the member in preparation for a hearing). The hearing was able to proceed albeit at a later start time, on the scheduled day.

12. The tribunal received oral evidence from one witness , [Witness A], who gave evidence by telephone. The tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The interpreter attended the hearing by video.

13. The applicants were represented in relation to the review. The representative attended the tribunal hearing by video.

14. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The main issue in the present case is whether the first named applicant is the spouse of the sponsoring partner for the purposes of cl.801.221(2)(c).

16. By letter dated 15 June 2022, the tribunal invited the applicant to provide information, evidence and submissions in support of the application for review relevant to the circumstances of her relationship with the sponsor, as set out in r.1.15A(3), and in the definition of spousal relationship in s.5F(2) of the Act. The tribunal advised in the letter that it understood that a copy of the regulations and s.5F(2) had been provided as attachments to the Department’s decision record, but that if the applicants required a copy, they could contact the tribunal. The letter advised that the due date for the requested information, evidence and submissions was 30 June 2022.

17. The applicants did not provide any information, evidence or submissions to the tribunal by the due date, and the tribunal send a courtesy reminder to the applicants.

18. On 13 July 2022 the tribunal received the following information and evidence attached to a submission from the applicants: – A copy of an unregistered marriage certificate from [September] 2012, (the registered marriage certificate between the first named applicant in the sponsor had previously been provided to the Department); a copy of the first named applicant’s and the sponsor’s drivers licences recording their dates of birth and their current address as [Address 1], the birth certificate of the second named applicant, two pages from a multipage a joint bank account statement dated 29 March 2022 to 24 June 2022 (the relevant pages recording transactions 29 March 2022 to 6 April 2022 and 18 May 2022 to 25 May 2022), three letters addressed to the parent/guardian of three children at [Address 1] stating they are eligible to receive the covid-19 vaccination, and medical reports, notes, invoices and photos relating to injuries suffered by the second named applicant in a car accident in March 2021.

19. The submissions that were received after close of business on 15 July 2022 (the last working day before the scheduled hearing on 18 July 2022), which became available to the tribunal prior to the commencement of the hearing, were two statutory declarations from the first named applicant and the sponsor dated 14 July 2022, and one statutory declaration from the second named applicant dated 15 July 2022.

20. The tribunal has also noted that information was provided to the Department in 2016, as recorded on the Department file. The tribunal accepts, based on the information in the Department’s decision record and the submissions of the applicants, that this information was received by the Department after the Department’s decision record dated 13 October 2016. The information provided to the Department in 2016 included a statutory declaration from the sponsor dated 25 October 2016, a statutory declarations from the first named applicant dated 25 October 2016, a statutory declaration from a work colleague of the sponsor dated 16 September 2016, a statutory declaration from the witness at the 2022 hearing dated 6 September 2016, copy of the joint bank statement of the first named applicant and the sponsor dated 25 June 2016 to 24 August 2016 (four of five pages provided) and copy of the personal bank statement of the first named applicant dated 10 September 2014 to 9 March 2015 (two pages), two personal invitation cards, and identification documents.

21. In support of the application for the visa which was made on 8 November 2012 the applicants provided the Department with documents including the application form, the sponsorship form, a statement from the first named applicant and the sponsor, two statutory declarations, a joint affidavit, marriage certificate and identification documents. Based on the information contained in the Department’s decision record dated 13 October 2016, I am satisfied that the applicants were granted a subclass 820 visa on 8 November 2012.

22. In determining whether the first named applicant meets the requirements of cl.801.221(2)(c), that she is the spouse of the sponsoring partner at the time of decision, the tribunal must consider the circumstances of the relationship at the time of this decision.

23. This review involves circumstances where the first named applicant was found not to satisfy the requirements of cl.801.221(2) in the Department’s decision dated 13 October 2016 because no responses or further information had been received by the time of the Department’s decision. The tribunal invited the applicants to provide further information, and set out the information in its letter to the applicants dated 15 June 2022 that would be relevant to the review. The information provided to the tribunal by the applicant in support of the application for the review was both late and limited in content and relevance. The information provided was limited to a marriage certificate that had previously been provided, the birth certificate of the second named applicant, the drivers licence of the first named applicant and the sponsor, two selected bank statement pages from a joint account, and three letters that do not record the parents of the children confirming the children are eligible for the vaccination, and medical and other evidence in relation to the car accident in which the second named applicant was injured in March 2021. It is difficult to understand that after the legal process that the applicants have undertaken to have this matter back before the tribunal, that prior to the hearing the applicants submitted such limited documentary information to demonstrate the ongoing spousal relationship between the first named applicant and the sponsor.

24. The tribunal has also considered the three statutory declarations which were of assistance to the tribunal. The statutory declaration evidence before the tribunal is essentially that the first named applicant and the sponsor have been married since 2012, a period of 10 years, and they have three children and raise the second named applicant who is the stepdaughter of the sponsor.

25. The oral evidence of the first named applicant, the sponsor, the second named applicant (who the tribunal notes is a teenage age minor) and the witness who gave evidence by telephone, consistently set out that the first named applicant and sponsor reside as a married couple, focused on raising their family, living in rental accommodation and relying on the income of the sponsor.

26. At the conclusion of the hearing the tribunal outlined further documents that the applicants would be required to provide to the tribunal which are relevant to the circumstances of the relationship between the first named applicant and the sponsor. The tribunal allowed the applicants 48 hours to provide these documents, and considered this timeframe was reasonable in the circumstances of this review.

27. On 19 July 2022, the applicants provided the tribunal with the birth certificates of the three children of the first named applicant and the sponsor, which all record the sponsor as the father and the first named applicant as the mother of the child.  The older of the three children was born in [Country 1] when the parties were not married. The two younger children were born in [Australia] after the parties were married.

28. On 19 July 2022 the applicants provided the tribunal with copies of the bank statements for all of 2022 for the parties’ joint account, and their individual accounts, their tenancy agreement for their current address since 2019 in the sponsor’s name, records of rental payments, and an application for the tenancy to be made in joint names dated 19 July 2022. The applicants also provided a copy of the insurance policy for the first named applicant’s car which listed the first named applicant and the sponsor as drivers of the vehicle.

29. On 19 July 2022 the applicants provided the tribunal with copies of the school reports for semester 1 of 2022 from the primary school attended by the two youngest children, and the secondary college attended by the second eldest child.  The tribunal had not requested evidence in relation to the second named applicant who had attended the hearing. The applicants also provided the tribunal with a list of school receipts from the primary school.

    SPOUSE/DEFACTO (cl 801.221(2))

    Whether the parties are in a spouse or de facto relationship

30. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. Based on the certificate of Australian citizenship, which records the sponsor became an Australian citizen [in] September 1991, I am satisfied the sponsor is an Australian citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

31. ‘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 sponsor’s 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?

32. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. I am satisfied that the sponsor has been previously married, and provided his divorce order from his first wife dated [in] June 2009. I am satisfied based on the registered marriage certificate, that the first named applicant and the sponsor were married in Victoria, [in] September 2012. 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?

33. Financial aspects of the relationship: – I am satisfied based on the information and evidence before me that the parties do not jointly own real estate or other major assets. I accept the sponsor owned a property which the parties lived in after their marriage, and this property was sold in 2013 or 2014. I am satisfied that the parties do not have joint liabilities or debts. The tribunal is satisfied that the parties own two vehicles, which are not subject to any financial arrangement, and which are both registered in the sponsor’s name. I am satisfied that the parties currently are in rented accommodation, and the sponsor stated the tenancy agreement was in his name only. The first named applicant had thought the tenancy agreement was in joint names as they had both been to view the property prior to agreeing to the lease. In a comment after hearing the sponsor’s evidence the first named applicant stated that the sponsor would be correct in his evidence that the tenancy was in his name only. The tribunal invited the first named applicant to provide a copy of the tenancy agreement (only if it was in joint names) within 48 hours, as evidence of their joint financial and household arrangements. The tribunal was provided with a copy of the current tenancy agreement, a history of rent payments, and an application for the tenancy agreement to be made in joint names the day after the hearing. I am satisfied that the sponsor is the sole income earner of the family, and is responsible for paying the rent and other household bills.

1. I am satisfied that the parties opened a joint bank account, and the Centrelink family payment is deposited into this bank account. I am satisfied that the sponsor transfers money into this account. The tribunal was provided with two recent pages from a statement from the joint bank account, prior to the hearing. The two pages of the statement mainly recorded transfers to a linked account and are not evidence of the first named applicant’s use of the joint bank account to cover household grocery costs and other family expenses.

2. The documents provided to the tribunal prior to the hearing did not demonstrate the way the first named applicant and sponsor managed the household expenses and household bills. The tribunal requested that the first named applicant provide the tribunal within 48 hours of the hearing copies of statements that demonstrate the sponsor’s salary and bill payments by way of transactions from his individual account, and the first named applicant’s payment of grocery shopping and household expenses from the joint bank account. The tribunal received complete copies of bank statements for the year 2022 for the joint account, and the first named applicant’s individual account and the sponsor’s account the day after the hearing.  I am satisfied these bank statements confirm the sponsor’s and first named applicant’s evidence in relation to their management of their financial affairs as a couple.

3. I accept the evidence before me that the sponsor has an individual bank account, and his salary goes into this account and he pays the rent and bills of the household directly from this account.

4. I accept the evidence that the first named applicant uses to the funds in the joint bank account from the Centrelink payment and transfers from the sponsor to cover the household grocery costs, the children’s lunch costs and other related family expenses. To this extent I am satisfied that the parties pool their financial resources. The tribunal is also satisfied that the use of the joint bank account is the basis of the parties sharing the day to day household expenses.

5. There is no evidence before the tribunal that either party in the relationship owes any legal obligation respect of the other.

6. The evidence of the financial aspects of the relationship indicates that the sponsor assumes responsibility for the financial needs of the family, and manages and pays most of the family’s financial commitments. The evidence of the financial aspects of the relationship indicate that the relationship is genuine and continuing.

7. The nature of the household: – the evidence before the tribunal is that the first named applicant and the sponsor have three children of their own, and have included the second named applicant who is the daughter of the first named applicant as part of their family. The tribunal requested that the first named applicant provide the birth certificates of two of the three children of the first named applicant and the sponsor to the tribunal within 48 hours (one of the birth certificates had previously been provided). The birth certificates are relevant as they record the parents of the children. The three birth certificates were provided the day after the hearing, and record the first named applicant and the sponsor are the parents of three children, born in [specified years]. 

8. The tribunal is satisfied based on the evidence of the first named applicant, the second named applicant, the sponsor and the witness, that the four children and their parents reside in the three-bedroom rented home [at Address 1]. The tribunal is satisfied based on the evidence before it from the first named applicant and the sponsor, that the first named applicant has the responsibility for the care of the children during the day, and the sponsor has the responsibility to work and provide financially for the family. The tribunal accepts the first named applicant is responsible for most of the care for the children as she is not working. I am satisfied that the first named applicant and the sponsor share the responsibility for the care and support of the children in their family, and they spend their time with the children on weekends.  I am satisfied the first named applicant and sponsor share the responsibility for the second named applicant, and this was particularly so when the second named applicant was injured in a car accident in March 2021. The tribunal accepts that the sponsor plays with the four children in the backyard, and depending on his work hours, sometimes collects the children from school.

9. Based on the evidence before the tribunal, I am satisfied that the sleeping arrangements of the children change on a fairly fluid basis in the household; the four children occupy two of the three bedrooms, and the sponsor and the first named applicant occupy the other bedroom. The tribunal accepts that the two older children prefer to share a room together and for the two younger children to occupy the other room, (although the tribunal noted that this means that children of different sexes share a room, and the sponsor stated that generally the two boys are together, and the two girls are together). The tribunal accepts that sometimes the youngest child, prefers to sleep in the room with her oldest sister, the second named applicant. The tribunal accepts the evidence of the first named applicant that the division on the base of gender together does not work well as the younger two can be very annoying for their older siblings.

10. The tribunal is satisfied that the parties see the responsibility for the housework as the responsibility of the first named applicant. The tribunal accepts that the first named applicant is responsible for the cooking, preparation of school lunches, cleaning, washing, shopping and all other housework tasks. The tribunal accepts that the sponsor undertakes maintenance of the garden, and washes the cars. The tribunal is satisfied that the sponsor’s car, which is a large van, is parked on the street, and the first named applicant’s car is parked in the driveway.

11. The evidence of the nature of the household indicates that the parties have a genuine and continuing relationship and that they live together, and not separately and apart, on a permanent basis.

12. Social aspects of the relationship: – there is very limited evidence of whether the parties represent themselves to other people as being married to each other, or the opinion of their friends and acquaintances about the nature of the relationship, before the tribunal. The tribunal accepts that the first named applicant and sponsor have represented themselves as being married to each other to their friend, [Witness A], who gave evidence at the hearing. The tribunal accepts that the witness was present at the party’s wedding, worked with the sponsor at two previous places of employment for a number of years, is a regular visitor at the first named applicant’s and sponsor’s home, and is familiar with the circumstances of their relationship and their family. The tribunal accepts that the evidence of this witness is that he considers the relationship to be a genuine marital relationship that has been ongoing for 10 years.

13. The Tribunal accepts the evidence of the first named applicant, the sponsor, the second named applicant and the witness that the parties plan and undertake social activities as a family, and that they go out to shopping centres and movies together on the weekends.

14. The tribunal requested the first named applicant provide evidence of the recognition that she and the sponsor are raising four children. The tribunal requested this information be provided within 48 hours, and suggested this evidence should be at home in the form of school reports, or invitations to attend parent teacher interviews or other social functions. The tribunal received the semester 1, 2022 school reports for the three children the day after the hearing.  The tribunal received the primary school receipts lists addressed to Mr and Mrs ***. The tribunal accepts this is evidence that the parties represent themselves as being married to each other at the children’s school, and that the first named applicant is recognised as being part of a family with the sponsor and her children.

15. The evidence of the social aspects of the relationship is limited, but it does indicate that the parties are in a genuine and continuing relationship.

16. The nature of the persons’ commitment to each other: – the evidence of the first named applicant, the sponsor, the second named applicant and the witness is that the parties have lived together on a permanent basis since their marriage in September 2012. The tribunal is satisfied that at the time of this decision, the parties have been married for over 11 years and nine months, and have lived together for over 11 years and nine months.

17. The first named applicant and the sponsor stated they provided emotional support to each other by talking things through, advising each other and sharing their problems. The first named applicant and the sponsor both referred to the car accident involving the second named applicant as a matter of distress for the family. The first named applicant and sponsor stated they see the relationship as long-term because they have children together. The sponsor stated his future plans include travelling together when the first named applicant and second named applicant have visas. The first named applicant stated her future plans included obtaining employment when her children were older.

18. The evidence of the nature of the persons’ commitment to each other indicates that they have a mutual commitment to a shared life as a married couple to the exclusion of all others, and that they live together, and not separately and apart, on a permanent basis.

19. The tribunal has considered the circumstances of the relationship as set out in r.1.15A(3). The tribunal finds that the first named applicant is the spouse of the sponsoring partner within the meaning of s.5F(2)(a)-(d), at the time of this decision, namely they are validly married to each other, they have a mutual commitment to a shared life as a married couple to the exclusion of all others, they are in a genuine and continuing relationship, and they live together, and not separately and apart, on a permanent basis.

20. Given these findings the tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision, and the first named applicant is the spouse of the sponsoring partner. Therefore the first named applicant meets the requirements of cl.801.221(2)(c).

    Secondary Visa Applicant

21. The delegate found in the Department’s decision record that the second named applicant did not meet the requirements of cl.801.321. The tribunal is unable to make findings in relation to whether the second named applicant satisfies criteria at the time of decision, as she is not the holder of a subclass 820 visa (or alternatively a subclass 445 visa) and the first named applicant has not been granted a subclass 801 visa for the purpose of meeting the criteria of cl.801.321.

22. The tribunal has alternatively considered whether the second named applicant meets some of the secondary criteria in cl.801.311.

23. To meet the requirements of cl.801.311(2)(a), the second named applicant must be the dependent child of a person who has applied for a Partner (Residence) visa. 

24. The tribunal is satisfied, based on the birth certificate of the second named applicant, that she is the biological child of the first named applicant.  Based on the evidence before the tribunal, I am satisfied that the second named applicant was born in [year], and is currently aged [age] years.  I am satisfied the second named applicant is not engaged and does not have a spouse or partner, that she currently resides, and has always resided with her mother, and attends school in [grade]. The tribunal is satisfied that the second named child is a dependent child within the meaning of r.1.03.  Further, the tribunal is satisfied that the first named applicant has applied for a Partner Subclass 801 visa.

25. For these reasons the tribunal is satisfied that the second named applicant meets the requirements of cl.801.311(2)(a).

26. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 801 visa.

    decision

27. The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl 801.221(2)(c) of Schedule 2 to the Regulations

28. The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 801(Partner) visa:

    · cl.801.311(2)(a) of Schedule 2 to the Regulations.

    Margie Bourke
    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).