2112540 (Migration)

[2024] AATA 760

2112540 (Migration) [2024] AATA 760 (15 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE: Ms Yujin Shen(MARN: 1172154)

CASE NUMBER:  2112540

MEMBER:Margie Bourke

DATE:15 March 2024

PLACE OF DECISION:  Melbourne

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

·cl.820.211 and cl.820.221 of Schedule 2 to the Regulations; and

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

Statement made on 15 March 2024 at 5:23pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – joint real estate and liabilities – financially independent children – shared household responsibilities – joint social activities – supportive relationship statements – long-term relationship – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.321; 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

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

2. The first named applicant (the applicant) applied for the visa on 21 February 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the first named visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the first named visa applicant had provided sufficient information and evidence to demonstrate she was the spouse of the sponsor at the time of application, and further the delegate was not satisfied the first named visa applicant had provided consistent or reliable information in some aspects of the information and evidence provided in support of the application for the visa.

4. The first named applicant appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, [named] and from four witnesses who attended the hearing to give evidence in support of the relationship between the first named applicant and the sponsor, namely [Witness A], a friend of the applicant sponsor, and [Witness B] a neighbour and friend, and his wife [Witness C], and his daughter [Witness D]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The second named applicant did not attend the hearing on 13 March 2024.

6. In this decision record reference to ‘the applicant’ refers to the first named review applicant.

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

8. For the following reasons, the Tribunal has concluded that the matter in relation to the first named review applicant should be remitted for reconsideration and the decision under review in relation to the second named review applicant should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Preliminary issue - nondisclosure certificates

9. The Department had issued four nondisclosure certificates on the Departments file, two dated 6 October 2021 and two dated 10 June 2022. These four nondisclosure certificates were revoked by the Department prior to the hearing. The Department issued two nondisclosure certificates dated 22 February 2024, one pursuant to s.376 of the Act, and one pursuant to s.375A of the Act. Copies of the current nondisclosure certificates were provided to the review applicants prior to the hearing, and the review applicants were advised of the existence of the four previous nondisclosure certificates that had been revoked.

10. The Tribunal discussed with the applicant that the certificate issued under s.376 of the Act related to a case note that referred to an allegation of a contrived relationship. This allegation is detailed in the Department’s decision record dated 6 September 2021, a copy of which was provided to the Tribunal by the applicant. The Tribunal advised the applicant that the allegation received by the Department, was not on the Department file and had not been provided to the Tribunal. The Tribunal advised that it could not assess whether the allegation had substance, it could not assess the source of the information or the depth or reliability of the knowledge of the provider of the information. The Tribunal advised that it found the certificate was valid, but it could not give the case note of the allegation any weight. The Tribunal therefore advised the applicant that the information covered by the s.376 nondisclosure certificate dated 22 February 2024 had no solidity or relevance to the review.

11. The Tribunal advised the applicant that the information covered by the second certificate, issued pursuant to s.375A of the Act also applied to case notes on the Department file. One of the case notes related to an assessment by Department officers of information provided by an applicant in an application form, in relation to the place of residence at the time of application. The Tribunal advised that it would discuss the information that had been provided by the applicant in relation to her residential address during the course of the review; the Tribunal was not required to put this information, or the gist of the information, to the applicant pursuant to s.359A of the Act. The Tribunal advised that the assessment in the case note only referred to the residential address provided, and no further details of the applicant were provided, including names, dates or other relevant information. The Tribunal determined that in the absence of any other information to the Tribunal, this information covered by the nondisclosure certificate is not relevant to the review.

12. The Tribunal advised the applicant that the other case note covered by the s.375A nondisclosure certificate was information that needed to be put to the applicant pursuant to s.359A or s.359AA of the Act. The Tribunal put this information to the applicant in the hearing pursuant to s.359AA of the Act. The Tribunal explained that the gist of the information covered by this case note was that persons connected to the applicant’s application for the visa and the applicant’s marriage were known to the Department to be involved in fraudulent applications for Partner visas. The Tribunal explained the relevance of this information was not that the applicant’s application or marriage was necessarily fraudulent but that an assessment of the application for the visa required a high level of scrutiny. The Tribunal advised that the consequences of the Tribunal relying on the Department’s assessment that a high level of scrutiny was required, would be that this would apply to the evidence before the Tribunal in the review and the Tribunal would proceed to assess and analyse the evidence before it with caution. The Tribunal advised that if the evidence before it is found to be not reliable or credible, coupled with the information from the Department in the case note that persons linked with the applicant’s application and marriage were known to be involved in fraudulent visa applications, could be the reason the Tribunal finds the applicant’s relationship with the sponsor is not genuine. The Tribunal advised the applicant that it was important the Department had made this case note and had provided the case note, to the Tribunal, the gist of which had been disclosed to the applicant.

13. The applicant was invited to comment or respond to the information. The applicant stated she understood the particulars of the information, its relevance to the review and the consequences if the Tribunal relied on the information. The hearing was adjourned for a short period of time to allow the applicant the opportunity to consult with her representative. The applicant elected to provide her comments or responses in the hearing. The applicant stated that what she told the Tribunal in the hearing would be true. The applicant stated her relationship with the sponsor was a genuine relationship.

    Secondary visa applicant

14. The review applicant and her representative stated that the second named visa applicant was not attending the hearing. The review applicant and her representative stated the secondary visa applicant would not be attending the hearing to give evidence in support of either the applicant’s relationship with the sponsor, or that he meets the secondary criteria for the visa. The representative stated that the second named applicant is no longer a dependent child of the first named applicant, and does not wish to proceed with any claim that he meets the secondary criteria in this review. The representative stated that the applicants understand that the Tribunal will affirm the decision of the Department as there is no evidence presented that the second named applicant meets the secondary criteria.

15. The Tribunal discussed with the applicant and her representative that after considering the submissions made in relation to the second named applicant, it would not ask any questions in relation to whether the second named applicant meets the criteria. The Tribunal advised that it would make a time of decision finding in relation to the second named visa applicant. The applicant and her representative advised they understood and accepted that the Tribunal would affirm the decision under review in relation to the second named visa applicant.

    Centrelink information

16. The Tribunal has considered the information in the Department’s decision record,, that the applicant and the sponsor both updated their information with Centrelink on 16 April 2018, and the applicant advised her correct address was [Suburb 1] on 16 April 2018, and both the applicant and sponsor updated their information to record their marital status on 16 April 2018. The Department noted that the sponsor did not update his residential address on 16 April 2018, which remained recorded as the [Suburb 2] address.

17. The Tribunal is satisfied based on the evidence before it that the sponsor was not in receipt of any Centrelink benefits in April 2018, but had previously received payments in the form of tax payment A and B in relation to his son. The Tribunal is satisfied that the applicant and sponsor did not change their records with Centrelink online, but attended a Centrelink office on 16 April 2018. The Tribunal is satisfied that the applicant and sponsor attended the Centrelink office in relation to a Medicare enquiry on behalf of the applicant. The Tribunal is satisfied that the discussion with the Centrelink officer occurred without the assistance of an interpreter. The Tribunal accepts that as the enquiry was made on behalf of the applicant it is reasonable that her correct address was provided, and her marital status with the sponsor who was with her was appropriately recorded by the Centrelink officer. The Tribunal’s analysis of the Centrelink records changed on 16 April 2018 is that it does not indicate the applicant and sponsor were residing at separate addresses. They Tribunal accepts that they attended the office together and provided the information that was asked of them as best they could in the absence of an interpreter.

    Marriage

18. The applicant and sponsor both stated they were married [in] August 2016 in [Suburb 3]. The applicant and sponsor both stated that they were not accompanied to the marriage venue by any friends or family members. The applicant and sponsor stated the witnesses to the marriage who signed the certificate were persons at the venue. The applicant and sponsor stated they did not celebrate the marriage afterwards, but may have gone out for a meal together. The applicant could not recall the gender or name of the celebrant, or the names of the witnesses. The sponsor stated the marriage celebrant was male but he could not remember his name.

19. The applicant initially stated that her son was in Australia, but then stated she recollected he was in China and that was the reason he did not attend her marriage with her. The sponsor stated that the applicant’s son was in Australia at the time of the marriage. This inconsistent evidence was put to the applicant near the end of the hearing. The applicant stated in response to the information put to her pursuant to s.359AA that she could not remember, and did not want to definitively state whether her son was in Australia or in China at the time of the marriage.

20. Both the applicant and the sponsor told the Tribunal that the marriage was important. It seems odd that the applicant and sponsor did not ask their sons or any friends to participate in, witness or celebrate the marriage with them. This does not mean that the marriage is not genuine, as persons are entitled to make the choices as to how their marriage is conducted and whether it is celebrated or not. The Tribunal has carefully assessed this evidence, particularly in light of the Department’s case note, which the Tribunal takes seriously, that persons known to the Department to be involved in fraudulent visa applications, were connected with the marriage of the applicant and the sponsor.

    Application for the visa - residential addresses

21. The Tribunal accepts that the applicant and her son (the second named visa applicant), had travelled to Australia as the second named visa applicant was studying in Australia. The Tribunal accepts that the second named visa applicant had first travelled to Australia to study in 2011. The Tribunal is satisfied that the applicant was in Australia in 2016 at the time of her marriage. The Tribunal is satisfied that the applicant and the second named applicant both returned to China in January 2017 after the sudden death of applicant’s mother and stayed in China for a short period of time. The applicant returned to Australia [in] January 2017.

22. The Tribunal has considered the application for the visa, form 47SP, in which at question 74 (which countries you have lived in for 12 months or more during the last 10 years) the applicant records that she has resided in China from [May] 2010 to [January] 2017, and in Australia (at the [Suburb 2] address) from [January] 2017 until the time the form was signed on 21 February 2017. The Tribunal has noted that also at question 74 it is recorded that the second named visa applicant resided at the [Suburb 4] address from 13 February 2016 to 21 February 2017. The Tribunal has considered that where the delegate records that the applicant stated in the form 47SP that the applicant had resided at the [Suburb 4] address from February 2016 to February 2017 that this is an incorrect reading of the information on the form.

23. The Tribunal is satisfied that the information provided in the form did not correctly record that the applicant had been in Australia prior to [January] 2017. However the Tribunal is satisfied that this was mistaken information in the application form. The Tribunal is not satisfied that the applicant and sponsor have provided different Australian residential addresses after the time of the marriage in the application form. The Tribunal is satisfied that the Australian residential address recorded on the application form 47SP is the [Suburb 2] address where the applicant and sponsor claim they resided together.

    Sponsor’s home loan Customer Particulars Report

24. The applicant provided the Department with the sponsor’s home loan for the [Suburb 1] property purchased in 2017, which included the Customer Particulars Report. In this report the sponsor has declared his marital status is divorced, he has ticked that he does not have a spouse or partner, and he has declared that he has resided at the [Suburb 4] address (and property owned by the applicant from 2015 where she and her son resided together) from June 2013 and resided there at the time of the application on 13 November 2017. The applicant and the sponsor both stated that the error in the information provided in this customer particulars report was made by the broker. The sponsor stated he did not read the information or check it as he trusted the broker. The Tribunal discussed this evidence with the applicant and with the sponsor, and stated there did not seem to be any benefit for the broker to provide this incorrect information. The applicant and the sponsor suggested that perhaps the broker considered it preferable not to declare the sponsor had a spouse who did not have a visa. The Tribunal has assessed the evidence of the applicant and the sponsor and finds it not credible or reliable. The Tribunal would assume that the broker assisting the sponsor to obtain the home loan would record the details of the property being sold ([Suburb 2]) to finance the home being purchased ([Suburb 1]), and would include the details of a spouse or partner who also had an income to contribute towards the security of the home loan.

25. The Tribunal has noted the evidence of the sponsor that he has eight different bank accounts, which have not been provided to the Tribunal or to the Department. The Tribunal has noted the evidence of the sponsor that he has a share portfolio which he manages and has used to pay off the home loan. The Tribunal has assessed the evidence of the applicant that she leaves the financial matters to the sponsor to arrange. The Tribunal has considered the information provided in the ATO assessment notices that record the sponsor has an annual income of less than or approximately $50,000, and the applicant had an income in 2018 of nil, and an income in 2019 of approximately $15,000. The Tribunal accepts that the sponsor works as a self employed [occupation 1] with no employees, no office space and keeps his tools in the [vehicle 1]. The Tribunal accepts that the applicant works as [an occupation 2], in a room in their home. The Tribunal has noted that the ATO assessment notices do not include income from shares or dividends. The Tribunal notes that the [Suburb 1] home was purchased for $[amount] in 2017, and the current balance on the home loan is approximately $[amount]. The Tribunal has noted that the parties also purchased an investment property in 2020 in [Suburb 3]. The Tribunal has concluded that the sponsor is either an astute or an unscrupulous financial manager; but either way the tribunal is not satisfied the sponsor is a person who would not read and assess relevant information provided in support of a home loan prior to signing the form. The Tribunal has concluded the sponsor provided incorrect information to the broker intentionally, for some financial benefit. The Tribunal has concluded the sponsor has signed a form with incorrect information in support of his application for a home loan.

26. The Tribunal is satisfied that the sponsor did not provide correct information in the Customer Particulars Report in support of the application for the home loan in 2017. The Tribunal is satisfied that the sponsor and the applicant did not provide reliable information about the incorrect information in the Customer Particulars Report in both the written and oral evidence in this review.

27. The Tribunal has considered the lack of financial information provided to the Department and to the Tribunal in relation to the evidence of the financial affairs of the applicant and the sponsor, that the sponsor described in the hearing. The Tribunal finds that the sponsor and the applicant have not given credible evidence or provided the correct information to the Tribunal or to the Department in relation to the financial management of their affairs.

1. The Tribunal has not concluded that the incorrect information on the Customer Particulars Report is evidence that the parties were not residing at the same address. The Tribunal has concluded that the incorrect information indicates that the parties have provided unreliable evidence, and have not disclosed to the Tribunal all the information in relation to their financial affairs.

2. On the basis of the evidence before it, the Tribunal requested the applicant and the sponsor to provide further documentary information to support the claims that the parties pooled their financial resources. The applicant provided some evidence and requested time to provide further evidence. During this time frame, the Tribunal reached the decision recorded in this decision record, without the further evidence being received.

   Oral evidence of the witnesses

3. The Tribunal gives significant weight to the oral evidence of the witnesses who attended the hearing. The Tribunal accepts the evidence of [Witness A] who stated his wife, who is currently in Hong Kong, has been friends with the applicant and sponsor for a long time, and he has known the couple since 2019. This witness stated that he and his family, including his daughter, are frequent visitors to the applicant’s and sponsor’s home, and they share meals together. [Witness A] stated that he has no doubt as to the genuineness of their spousal relationship.

4. The Tribunal also gives significant weight to the evidence of the three members of [Witness B’s] family. The Tribunal accepts that [Witness B] has known the applicant and the sponsor for 6 ½ years after they came to live in [Suburb 1]. He stated he lives next door to the applicant and the sponsor. He stated he walks to his [business] and he sees people going into the home [for occupation 2 work], he sees the sponsor out the back doing gardening, he sees the couple gardening together, he sees them walking together, he hears good things from his wife and daughter who go to the home for [occupation 2], and he gets the impression that they are a happy couple. [Witness B] stated the applicant and sponsor have been invited to his home, and he believes they are a sincere couple.

5. [Witness C], [Witness B’s] wife, stated the applicant is her neighbour and her [occupation 2]. She states they are good neighbours and they bring food as gifts. She states when she goes [for occupation 2 services] they go down the side of the house to a room at the back. [Witness C] stated her family had resided in [Suburb 1] for 12 years, and she has been [undertaking occupation 2] with the applicant for 4 to 5 years. She stated the sponsor is often in the home when she is there for [occupation 2], and she stated the way the applicant and sponsor communicate to each other indicates that they are a happily married couple. This witness gave an example of once when she was [undertaking occupation 2 work] from the applicant, the sponsor interrupted to ask for a key. She stated the sponsor had improved the house and garden and they are lovely neighbours.

6. [Witness D] stated the applicant is her [occupation 2], and she has been going to the applicant for [occupation 2 work] for five years. She stated she often sees the sponsor in the house, or the backyard when she goes there for [occupation 2]. She stated there is a level of affection and closeness between the applicant and the sponsor. She stated the relationship between the applicant and the sponsor looks genuine to her, and they behave with each other over the years in a way that she does not think is faked. She stated the applicant and sponsor had been invited to her family home by her parents, and that the applicant has brought food made by either her or the sponsor to their home. [Witness D] stated she works as [an occupation 3], and she took the day off work to come to the hearing to give this evidence because the applicant is important to her and she found her visa story to be sad.

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

   Whether the parties are in a spouse or de facto relationship

7. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

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

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the registered marriage certificate, the Tribunal is satisfied the parties were married [in] August 2016. 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?

10. Financial aspects of the relationship: – the tribunal is satisfied that the parties jointly own real estate and other major assets, based on the documents in relation to the purchase of the [Suburb 3] property and the settlement statement confirming the applicant was half owner of the [Suburb 1] property. The tribunal is satisfied the parties have joint liabilities, including the mortgage for the [Suburb 1] property, and utility commitments for the property, based on the documents provided. The tribunal is satisfied the parties have a joint bank account, but in the absence of information showing the source of the money for the transfers into the joint bank account, the tribunal is not satisfied the evidence provided demonstrates the parties pool their financial resources particularly in relation to major financial commitments. There is no evidence for the tribunal that one person in the relationship owes any legal obligation in respect of the other. The tribunal is satisfied the parties share the day-to-day household expenses, through the use of the joint bank account.

11. The evidence of the financial aspects of the relationship indicates that the relationship is genuine and continuing, both at the time of application and at the time of decision.

12. Nature of the household: – The Tribunal accepts that at the time of application the sons of both the applicant and the sponsor were adults, but resided with the applicant and the sponsor, and therefore the parties had some responsibility for the care and support of their sons at the time of application. The tribunal is not satisfied that the parties have joint responsibility for the care and support of children at the time of decision. The Tribunal is satisfied that at the time of decision the sons of both the applicant and the sponsor are independent, both financially and physically. The Tribunal is satisfied based on the evidence before it that the parties lived together as a married couple, first at the [Suburb 2] address after their marriage, and then at the [Suburb 1] address. The Tribunal is satisfied that the parties share the responsibility for housework, which is mostly undertaken by the sponsor. The Tribunal accepts that the applicant and sponsor share the responsibility for cooking, that they often eat separately because of the applicant’s [occupation 2] commitments, and they share the responsibility for the laundry simply by taking responsibility for doing the washing when it is ready to be done. All other household cleaning tasks and gardening tasks are undertaken by the sponsor.

13. The evidence of the nature of the household indicates that the parties are in a genuine and continuing relationship, and lived together, and not separately and apart, on a permanent basis, at the time of application and at the time of decision.

14. Social aspects of the relationship: – the Tribunal is satisfied that the parties present themselves to other people as being married to each other. The Tribunal is satisfied that the opinion of the persons friends and acquaintances is that then relationship is genuine, happy and supportive. The Tribunal is satisfied that the parties plan and undertake joint social activities on the basis of spending time together around their business activities, particularly the applicant’s [occupation 2 work], including walks together, hiking and meals with friends.

15. The evidence of the social aspects of the relationship indicates that the applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, and are in a genuine and continuing relationship, at the time of application and at the time of decision.

16. Nature of the persons’ commitment to each other: – the Tribunal is satisfied that the parties have been in a spousal relationship since [August] 2016, and have lived together since [August] 2016. At the time of application, namely 21 February 2017 the tribunal is satisfied that the parties have been married for six months and had lived together for six months. At the time of decision the tribunal is satisfied that the parties have been married for 7 ½ years and have lived together for 7 ½ years. The Tribunal is satisfied that the parties provide companionship and emotional support to each other, and see their relationship as long-term.

17. The evidence of the nature of the persons’ commitment to each other indicates that the applicant and sponsor are in a genuine and continuing relationship, and lived together, and not separately and apart, at both the time of application and at the time of decision.

    Assessment of the evidence of the spousal relationship

18. The Tribunal has considered carefully all the written and oral evidence before it. The Tribunal has noted the evidence in relation to the marriage of the applicant and sponsor, including the fact that they did not invite any family or friends to witness or celebrate the marriage, and were unable to name the celebrant or witnesses of their marriage. The Tribunal has assessed the evidence of the applicant and the sponsor in relation to incorrect information provided in the customer particulars report for the application for the home loan, and the lack of disclosure in relation to the financial affairs of the applicant and the sponsor. The Tribunal has noted that the two sons of the applicant and sponsor did not attend the hearing to give evidence in support of the relationship.

19. The Tribunal has also assessed and given weight to the consistent evidence of the applicant and the sponsor about their relationship, and circumstances and incidents that have occurred during the relationship. The Tribunal has assessed and given weight to the evidence of the witnesses who attested they had regular contact with the applicant and sponsor and they believe that the relationship is genuine.

20. The Tribunal has considered the circumstances of the relationship as required under reg 1.15A(3), and is satisfied at the time of application and at the time of decision, the applicant and the sponsor had a mutual commitment to a shared life as a married couple to the exclusion of all others, they were in a genuine and continuing relationship, and lived together, and not separately and apart, on a permanent basis. Therefore the Tribunal finds that the applicant and sponsor were in a spousal relationship within the meaning of s.5F(2)(b), (c) and (d) at the time of application and at the time of decision.

21. 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.

22. Therefore the applicant meets cl.820.211(2)(a).

    Other time of application requirements – cl.820.211(2)

23. The Tribunal is satisfied that the applicant is sponsored by her spouse who has turned 18. Therefore the Tribunal is satisfied that the applicant meets the requirements of cl.820.211(2)(c).

24. There is no evidence before the Tribunal that the applicant was not a holder of a substantive visa at the time of application, and therefore the requirements of cl.820.211(2)(d) do not apply.

25. For the above reasons the Tribunal is satisfied that the applicant meets the requirements of cl.820.211(2)(a), (c) and (d), and therefore meets the requirements of cl.820.211(2).

    Time of decision requirements

26. As stated above the Tribunal is satisfied that the applicant is the spouse of the sponsoring partner at the time of decision. The Tribunal is satisfied that the applicant continues to meet the requirements of cl.820.211(2) at the time of decision. Therefore the Tribunal is satisfied that the applicant meets the requirements of cl.820.221.

27. Given the findings above, the appropriate course is to remit the application for the visa of the first named applicant to the Minister to consider the remaining criteria for a Subclass 820 visa.

    Secondary visa criteria

28. The time of decision criteria in cl.820.321 requires that a visa applicant is a person who is dependent on, or a member of the family unit of, another person who satisfies the primary criteria and is the holder of a Subclass 820 visa. The Tribunal is satisfied, based on the submissions of the representative and evidence of the review applicant that the second named applicant is not dependent on the first named applicant, and does not meet the definition of member of the family unit of the first named applicant at the time of decision.

29. The Tribunal is satisfied that the second named applicant does not meet the requirements in cl.820.321 at the time decision.

30. For the reasons above, the second named applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    ·cl.820.211(2) and cl.820.221 of Schedule 2 to the Regulations; and

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

    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).