2120035 (Migration) - [2024] ARTA 859

2120035 (MIGRATION) [2024] ARTA 859 (4 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2120035

Tribunal:General Member J Clarke
Place:Melbourne
Date: 4 December 2024
Decision:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations;
·cl 820.221(1) of Schedule 2 to the Regulations; and
·reg 2.03A.

Statement made on 04 December 2024 at 2:35pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – sponsor is deceased – was the de facto partner of the sponsor who was an Australian citizen – both persons had made a Will nominating the other as beneficiary of their respective estate – the parties opened and operated a joint bank account – applicant and the sponsor had a mutual commitment to their partner relationship – applicant would have continued to be the de facto partner of the sponsor – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.09, 2.03A, Schedule 2, cls 820.211,820.221
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 15 December 2021 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 23 April 2019, the applicant, who is a national of Vietnam, applied for the visa based on his relationship with his sponsor, [Mr A]. At that time, the applicant was aged [age] years and the sponsor was aged [age] years. At the time of this decision, the applicant is aged [age] years and the sponsor is deceased.[1]
[1] The registered death certificate was lodged with the Tribunal in this review. The sponsor passed between 5 January 2022 and 6 January 2022.
At the time that the applicant applied for the visa, 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. Relevantly to this matter, the primary criteria include cl 820.211 and cl 820.221.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate assessed the application pursuant to cl 820.211(2), finding it to be the only subclause relevant to the applicant’s circumstances. The delegate considered the information and evidence, submitted in support of the application, and found that it was not sufficient to demonstrate that, at the time of application on 23 April 2019, the applicant satisfied the definition of de facto partner under s 5CB of the Act. Accordingly, the delegate refused to grant the applicant the visa because the delegate found that cl 820.211(2)(a) was not satisfied.
The delegate made no findings in respect of the time of decision criterion in cl 820.221.
On 26 December 2021, the applicant applied to the Tribunal for the review of the delegate’s refusal decision. The applicant has been unrepresented in this review.
On 13 October 2024, the Administrative Appeals Tribunal (AAT) was abolished. On 14 October 2024, the Administrative Review Tribunal (the Tribunal) was established. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), an application for review to the AAT that was not finalised before 14 October 2024 is taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Section 348A(1) of the Act provides, ‘[t]he Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act’. ART Act is defined in s 5(1) as meaning the Administrative Review Tribunal Act 2024 (Cth).
On 27 November 2024, the applicant appeared, by video from New South Wales, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, by video, from Mr [B] (the applicant’s friend). Mr [B] appeared by video from the same location as the applicant. The form responding to the hearing invitation stated that Mr [C] (the applicant’s friend) was available to give oral evidence by telephone and the applicant reiterated this at the hearing. However, having heard the applicant’s and Mr [B]’s oral evidence and found them both to be very credible, and having considered the documentary evidence before the Tribunal, the Tribunal did not consider it necessary to hear Mr [C]’s oral evidence. The Tribunal explained this to the applicant.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In this review, there are two main issues for determination. First, whether at the time of application for the visa on 23 April 2019, the applicant and the sponsor were in a de facto relationship (for the purposes of cl 820.211(2)(a)). Second, whether the additional criteria for a de facto relationship (in reg 2.03A) are met.
In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.
Clause 820.221 relevantly provides:
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a)       continues to meet the requirements of the applicable subclause; or
(b)       meets the requirements of subclause (2) or (3).
(2)       An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.
THE RELEVANT REQUIREMENTS IN PART 820 – WHETHER, AT THE TIME OF APPLICATION FOR THE VISA AND AT THE TIME PRIOR TO THE SPONSOR’S DEATH, THE PARTIES WERE IN A SPOUSE OR DE FACTO RELATIONSHIP
The primary criteria to be satisfied at the time of application are set out in cl 820.211(1). This requires that the applicant is not the holder of a Subclass 771 (Transit) visa and that he meets one of the alternate requirements set out in cl 820.211(2), (5), (6), (7), (8) or (9).
The Tribunal has reviewed the applicant’s movement records which also detail his visa status at various times. The Tribunal is satisfied that, at the time of application on 23 April 2019, he was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl 820.211(1)(a) is met.
The subclause relevant to the applicant’s circumstances is cl 820.211(2). Accordingly, in this case, the key issue for determination is whether, at the time of application on 23 April 2019, the applicant and the sponsor were de facto partners for the purposes of the Act.
Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.
Clause 820.211(2)(a) requires that, at the time the visa application was made, the applicant was the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
The applicant claims that, at the time he applied for the visa on 23 April 2019 until the sponsor’s death in early January 2019, he was the de facto partner of the sponsor who was an Australian citizen. The applicant submitted a copy of the sponsor’s registered birth certificate to the Department. From the evidence before it, the Tribunal is satisfied that the sponsor was an Australian citizen by birth.
Were the parties in a de facto relationship for the period claimed?
‘De facto partner’ is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).
In forming an opinion whether they were in a de facto relationship consideration must be given to all 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 1.09A(3) which is attached to this decision. Each specific matter contained in reg 1.09A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
To make the requisite findings about the reg 1.09A(3) matters and the s 5CB requirements, the Tribunal has had regard to all the documents on the Department’s file and on the Tribunal’s file and to all the oral evidence given at the hearing. The Tribunal notes that, in this review, it has had the benefit of further information and evidence than what had been before the delegate.
The financial aspects of the relationship
Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant matters when considering the financial aspects of the relationship.
There is no evidence before the Tribunal that, prior to the sponsor’s death, the applicant and the sponsor jointly owned real estate or had any joint liabilities.
With respect to whether one person in the relationship owed any legal obligation in respect of the other, the Tribunal notes the evidence that was before the delegate that each person had made a Will nominating the other as beneficiary of their respective estate. The delegate had given limited weight only to this evidence stating, ‘a will can be made, modified, or superseded with relative ease’. In this review, the Tribunal takes a different view of this evidence. The Tribunal gives weight to the evidence that both persons had made a Will nominating the other as beneficiary of their respective estate.
At the hearing, the applicant told the Tribunal that the parties’ main joint asset had been their joint bank account.
The Tribunal notes that when the matter was before the delegate, the applicant submitted a statement for the period 21 May 2021 to 20 August 2021. However, the delegate gave little weight to this evidence as ‘[i]t is noted that in the statement period, there were two credits and two corresponding debits on the same dates only’ and thus the delegate considered that ‘there is no evidence that the account has been operated with frequency, or for a reasonable period of time’.
In this review, the applicant submitted a statement titled ‘[s]tatement explaining lack of documentary evidence in original partner/sponsor application’. In it, he claimed, ‘[e]stablishing a joint financial situation was not possible in the normal way as my sponsor has no savings and no income other than his aged pension. But I provided financial help to him’.
The Tribunal has had the benefit of further evidence than the delegate: both the applicant’s credible oral evidence at the hearing about the use of the bank account and further documentary evidence in support of the claims that the account was used by both parties.
The applicant told the Tribunal that he and the sponsor had opened the joint bank account in 2018, when they had applied to register their relationship. The Tribunal notes that the documentary evidence from the bank states that the account was opened on 22 May 2019, which the Tribunal notes was a few months after the applicant arrived in Australia in mid-February 2019. The documentary evidence is that the parties registered their relationship in May 2019 (discussed later below). The Tribunal finds that the applicant made a simple error in saying 2018 rather than 2019.
The applicant told the Tribunal that, after he started working, his salary was deposited into the account and he said that it was available for the sponsor’s use, noting that he had stayed with the sponsor and that the sponsor had a number of illnesses and that the applicant had wanted the sponsor to have money to purchase medication.
The Tribunal notes the sponsor’s statement in his statutory declaration of 27 January 2021 that they had planned to each contribute to the joint bank account. The Tribunal asked the applicant whether the sponsor had received any income and where that income had been deposited. The applicant gave oral evidence that the sponsor had received government benefits and that that money was deposited into the sponsor’s personal account which the applicant described as being a ‘retirement account’. He said that the sponsor had offered to have those monies—$1080 per fortnight—deposited into the joint bank account but the applicant gave oral evidence that he had said to the sponsor that it was not necessary.
The Tribunal asked the applicant who had paid for day-to-day household expenses such as rent, utility bills and food. The applicant gave oral evidence that, for the first three months following the applicant’s arrival in Australia, the applicant had not been permitted to work and the sponsor had paid for everything. He said that after he started working, he sought to repay the sponsor. The Tribunal notes the sponsor’s statement in his statutory declaration of 27 January 2021 that, before the applicant started working, the applicant had been unable to share the financial expenses such as rent and bills. The sponsor noted that the applicant had done other things to seek to make up for not sharing the payment of those expenses.
The Tribunal is mindful that, in the primary decision, the delegate had been critical that, while the parties had claimed that utilities would be established in joint names, no documentary evidence had been provided that this had been done.
At the hearing, the applicant noted that, as stated in each party’s statutory declarations that had been filed with the Department,[2] the real estate agent had not permitted the applicant’s name to be put on the residential lease, but he said that, after he started working, they had both contributed towards the rent. He said that they had also shared the payment for the utility bills. He said that the sponsor paid for the groceries.
[2] Both made on 27 January 2021.
In this review, the applicant submitted a number of statements from the joint bank account for the following periods:
·22 August 2019 to 22 November 2019;
·22 November 2019 to 21 February 2020;
·21 February 2020 to 22 May 2020;
·22 May 2020 to 20 November 2020;
·20 November 2020 to 22 February 2021;
·22 February 2021 to 21 May 2021;
·21 May 2021 to 20 August 2021 (this is the one mentioned in the primary decision); and
·22 November 2021 to 22 February 2022.
From review of these statements, it appears that the account was primarily used for the deposit of what the Tribunal assumes was the applicant’s pay and then that money was withdrawn. It may be that the parties paid for their various day-to-day household expenses using cash.
The Tribunal gives weight to the evidence that the parties opened and operated a joint bank account.
Having found the applicant to be very credible, the Tribunal accepts his claim that, due to their circumstances, it was difficult for him and the sponsor to establish a joint financial situation ‘in the normal way’. Notwithstanding that there are not financial records of the type and number that often are presented in a partner case before the Tribunal, the Tribunal accepts the applicant’s evidence that, during the claimed relationship, they arranged their financial resources in a way that worked for them—namely, that in the beginning the sponsor had helped support the applicant financially but that after the applicant started working, he helped support the sponsor financially—and that they shared their day-to-day household expenses.
The Tribunal gives some weight to the evidence of the financial aspects of the relationship. The Tribunal considers that, to some extent, the evidence points to the parties being de facto partners both at the time of application and up until the sponsor’s death.
The nature of the household
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when considering the nature of the household.
With respect to the living arrangements of the persons, the applicant told the Tribunal that, for the first three months after he had arrived in Australia, he had lived with the sponsor. He reiterated his evidence given in his statement ‘explaining lack of documentary evidence in original partner/sponsor application’ that, once he was permitted to work and to provide financial support to the household, ‘I took the only job that I could find at the time which was located over 70 km from our home’. At the hearing, he explained that for the first 6–7 months of his work there, he had travelled to and from [a region] every day (he worked 6 days per week) and said that he did not drive and that it was necessary for him to arise at 6am and that he did not return home from work until about 11.30pm. He said that this took a toll on him, that he became very tired and developed the chickenpox. In his written statement he explained:
It was not feasible for [Mr A] to move as he needed to be close to his doctor and to high-quality hospital care due to his severe co-morbidities. This made it difficult for us to establish a normal household together.
At the hearing, he explained that it was the sponsor who suggested to the applicant that he see whether he could find accommodation close to work for 3–4 nights a week so that he did not have to commute and experience such long days. The applicant said that he asked his boss and that there was accommodation available for staff and that he stayed there 3 or 4 nights per week. He said that on his day off, he always stayed with the sponsor.
He also told the Tribunal about the difficulties the couple had experienced during the COVID-19 pandemic when it had been very difficult for the applicant to visit the sponsor.
The Tribunal notes that, in the primary decision, the delegate had been critical that the applicant had not provided any documentary evidence in support of his claim that the parties had ‘established a joint household at the two-bedroom granny flat rented by the sponsor’.
The applicant has not submitted any documentary evidence in support of his claims about the living arrangements in this review either. Notwithstanding, having had the benefit of hearing the applicant’s oral evidence at the hearing, the Tribunal found the applicant to be very credible and the Tribunal notes that the applicant reiterated, and further detailed claims made earlier in his statutory declaration and other statement. The Tribunal accepts and gives weight to the applicant’s evidence about the claimed living arrangements of the persons.

With respect to any sharing of the responsibility for housework, the applicant told the Tribunal that he was a [occupation] and he said that he had cooked for the household. He said that he had cooked every day and had left food for the sponsor so that he had food to consume when he took his medication. He said that, when he returned from work, he brought food from the restaurant so that the sponsor had food for his lunch the next day. When asked about who had shopped for groceries, he said that they went together on the applicant’s day off and that the sponsor had driven them. When asked about the cleaning, the applicant said that he had done this on his days off and he noted the sponsor’s mobility issues. The Tribunal notes that the delegate had also been critical that there was no documentary evidence in support of the applicant’s claim that it was the applicant who took care of most of the household duties. The Tribunal notes that no documentary evidence has been submitted to the Tribunal about these matters either. Notwithstanding, having had the benefit of hearing the applicant’s oral evidence at the hearing, the Tribunal found the applicant to be very credible and the Tribunal notes that the applicant reiterated, and further detailed claims made earlier, including by the sponsor in the sponsor’s statutory declaration of 27 January 2021. The Tribunal accepts and gives weight to the applicant’s evidence and the sponsor’s declaratory evidence about the responsibility for housework in the household.
With respect to any joint responsibility for the care and support of children, the Tribunal notes that the registered death certificate for the sponsor states that he has one child, ‘[Mr D]’ aged [age]. At the hearing, Mr [B] stated that he understood that [Mr D] was the sponsor’s biological child by way of artificial insemination. The applicant told the Tribunal that he had no problem with this. Mr [B] also voiced his opinion that, if the sponsor were still alive, the applicant and the sponsor would most likely still have a relationship with [Mr D].
The Tribunal asked the applicant some questions about [Mr D]. The applicant explained that [Mr D] was the son of the sponsor’s friend [Ms E], and he said that the sponsor had been like a father to [Mr D]. He noted that [Mr D] has a disability. The applicant said that he had visited [Ms E] and [Mr D] twice. From the evidence before the Tribunal, the Tribunal finds that, during the period of the claimed relationship between the applicant and the sponsor, there was no joint responsibility for the care and support of children.
The Tribunal gives some weight to the evidence of the nature of the household. In the Tribunal’s view, this evidence is suggestive of the parties being in a de facto relationship at the relevant times.
The social aspects of the relationship
Whether the persons represent themselves to other people as being in a de facto relationship with each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters when considering the social aspects of the relationship.
With respect to whether the persons represented themselves to other people as being in a de facto relationship with each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons planned and undertook joint social activities, the Tribunal notes that this is a case where the parties have claimed that they had a very small social circle and where very limited documentary evidence has been submitted to evidence the social aspects of the relationship.
The Tribunal notes the sponsor’s evidence in his statutory declaration of 27 January 2021 that:
[The applicant] is aware that my immediate family now consists of only a brother who lives in Perth but I am not particularly close to him and we rarely have contact.
…
We have spent time with some of the few friends that I have including a close friend [Ms E] , a single mother, and her son [Mr D] who thinks of me as a father, and I look forward to meeting some of [the applicant]’s friends when we can travel to Vietnam sometime in the future.
In the applicant’s ‘[s]tatement explaining lack of documentary evidence in original partner/sponsor application,’ that was filed in this review, he stated:
My sponsor has only one or two friends and I have only one Vietnamese friend in Sydney who would not accept that I have a male partner. So, with my long working hours (over 12 hours per day and 6 days per week) plus having to sleep in work-provided accommodation this all made developing a social life a virtual impossibility.
At the hearing, the applicant gave credible oral evidence that he had rarely heard the sponsor phone the sponsor’s brother and that when the two brothers did speak, there was ‘normally fighting or yelling’. He said that after the sponsor had passed away, the sponsor’s brother had visited Sydney.
The Tribunal asked the applicant whether he had represented himself as being in a de facto relationship with the sponsor to his family in Vietnam. He responded that one of his brothers knew but he said that he did not want his sister to know, and he referred to the prevalence within Vietnamese culture not to accept same-sex relationships.
In the primary decision, the delegate noted that one statutory declaration had been provided from a friend of the applicant. This is a Form 888 statutory declaration made by Ms [name] on 20 January 2021. Despite the declarant having claimed to have met both parties and to have known about their relationship, and further acknowledging that such relationships did not happen much in her Vietnamese community, the delegate gave the declaration little weight because the declarant had stated that she was ‘not really much in contact’ with the sponsor.
Having reviewed and considered the declaration, the Tribunal takes a different view to the delegate and gives it greater weight than had been afforded by the delegate. This is because the Tribunal considers that the declarant has given considered and detailed reasons as to why she believed that the relationship was one of ‘true love’.
Based on the documentary evidence—albeit limited—which the Tribunal accepts and gives some weight and given that the Tribunal found the applicant to be very credible and accepts and gives weight to his evidence, the Tribunal finds that, despite having a very small social circle:
·the parties had represented themselves to some other people as being in a de facto relationship with each other; and
·the opinion of the one friend who had made a Form 888 about the nature of the relationship was that the relationship was a genuine one.
The Tribunal also gives some weight to Mr [B]’s credible oral evidence that, although he had not met the sponsor, he considered, from what the applicant had told him, that he and the sponsor had been in a genuine relationship. Mr [B] said that he believes that, as time went on and his friendship with the applicant grew and if the sponsor had lived, he would have met the sponsor. He recounted that, when the sponsor was still alive, the applicant had been ‘deeply concerned’ about the sponsor’s health. He said that the sponsor had died suddenly, and that the applicant had been ‘very distraught’ when arranging the funeral. He also stated that he knew that things had been difficult for the applicant to obtain the death certificate.
With respect to any basis on which the persons planned and undertook joint social activities, the applicant gave credible oral evidence that he and the sponsor had gone out for lunches or dinners often. He said that, at the time, he had been unaware that he should take photographs as proof of such outings. The Tribunal informed him that it was not a requirement to document outings. The applicant also told the Tribunal that, ordinarily, he and the sponsor had gone to [Ms E]’s house for Christmas and that he had cooked, and they had brought food to that function. He said they had also visited an older lady who lived in [a suburb], but he said that she had passed away now. The Tribunal asked him whether he and the sponsor had taken any holidays together, but he said that their modest financial situation had not enabled that. The Tribunal notes that the applicant submitted some photographs of him and the sponsor in some different social settings to the Department and to the Tribunal.
As has been noted, the Tribunal found the applicant to be very credible. Accordingly, the Tribunal accepts and gives weight to his evidence about the social aspects of the relationship. While the evidence in support of the applicant’s claims is limited, the Tribunal accepts that evidence, as well as the applicant’s evidence about why it is limited. The Tribunal finds that the evidence of the social aspects of the relationship, such as there is, points to the parties being de facto partners both at the time of application and up until the sponsor’s death.
The nature of the persons’ commitment to each other
The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all matters to be considered in determining the nature of the persons’ commitment to each other.
As was the case with respect to many of the other reg 1.09A(3) matters, because of the absence of documentary evidence, the delegate was not satisfied as to the claimed starting date of the relationship and thus the claimed duration of the relationship.
In this review, the applicant gave credible oral evidence as to the inception, development and duration of the relationship. His evidence was consistent with previous claims as to the inception, development and ongoing nature of the relationship that can be found in both the applicant’s and the sponsor’s individual statutory declarations made on 27 January 2021.
He told the Tribunal that he first met the sponsor through [social media] in 2015. He said that, at the time, they were friends only as the sponsor was in a relationship with someone else. He said that, once the sponsor’s relationship with his former partner ended, their relationship developed. The Tribunal notes that in his statutory declaration, the sponsor declared that his former partner had left him in April 2018. The applicant told the Tribunal that, prior to that time, the sponsor had had problems in his relationship with his former partner and he said that it was in 2017 that each of them had told the other that they loved them.
The consistent claim has been that the parties first met in person on [date] February 2019, when the applicant arrived in Australia as the holder of a Tourist visa. The applicant told the Tribunal that he had moved in with the sponsor from that date. He said that they were in a relationship that ceased when the sponsor died.
Having had the benefit of hearing the applicant’s oral evidence and finding him to be very credible, the Tribunal considers that the limited documentary evidence as to the duration of the relationship and the length of time during which the persons lived together is not the reason or a part of the reason for the Tribunal to affirm the decision under review. To the contrary, the Tribunal accepts and gives weight to the applicant’s oral evidence and notes that there is some documentary evidence to support his claims (to some extent). Accordingly, the Tribunal gives some weight to the duration of the relationship and the length of time during which the persons lived together—both just under three years—from mid-February 2019 until the sponsor’s death in early January 2022.
The Tribunal also accepts and gives weight to the evidence that is before it that, at the time of application and up until the sponsor’s death, both persons saw their relationship as being for the long term, as evidenced by each of them having made a Will nominating the other as main beneficiary, amongst other things such as registering their relationship. The Tribunal also accepts and gives weight to the evidence that is before it that, at the time of application for the visa and up until the sponsor’s death, there was a degree of companionship and emotional support that each person drew from the other. For example, the Tribunal notes that it accepts the applicant’s credible oral evidence that he had viewed their relationship as being for the long term and that he had stressed to the sponsor how important it was for the sponsor to have money for his medication and that this was the reason the applicant worked so hard. He also told the Tribunal some details of an intimate nature which the Tribunal considers demonstrate the care, companionship and emotional support that existed in the relationship.
Having reflected on the evidence and noting that the Tribunal found the applicant to be very credible and that there was some documentary and photographic evidence in support of various claims, the Tribunal finds that at the time of application and up until the sponsor’s death, the applicant and the sponsor had a mutual commitment to their partner relationship. The Tribunal considers that this evidence is strongly suggestive of the parties being in a de facto relationship at all relevant times.
Conclusion on the s 5CB(2) requirements
For the reasons given with respect to the reg 1.09A(3) matters, the Tribunal is satisfied that both at the time of application and up until the sponsor’s death, the applicant and the sponsor:
·were not in a married relationship (for the purposes of s 5F of the Act) with each other;
·had a mutual commitment to a shared life to the exclusion of all others, as required by s 5CB(2)(a) of the Act;
·had a genuine and continuing relationship, as required by s 5CB(2)(b) of the Act; and
·lived together or did not live separately and apart on a permanent basis, as required by s 5CB(2)(c) of the Act.
Section 5CB(2)(d) of the Act requires that the parties not be related by family. There is nothing in the information before the Tribunal to suggest that the parties are related by family. To the contrary, in the applicant’s record of responses for his application for migration to Australia by a partner which is on the Department’s file, the applicant declared that he and the sponsor were not related to each other by blood, marriage or adoption. The Tribunal accepts the veracity of this statement and finds that the applicant and the sponsor are not related by family. Section 5CB(2)(d) of the Act is met.
Based on the above, the Tribunal is satisfied that the requirements of s 5CB(2) were met at the time the applicant applied for the visa and continued to be met until the sponsor’s death. Therefore, the applicant meets cl 820.211(2)(a)(i).
Time of application and time of decision requirements
The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied.
The Department’s file that was provided to the Tribunal does not contain a copy of the sponsor’s completed Form 40SP–Sponsorship for a partner to migrate to Australia. Notwithstanding, the primary decision states the name of the sponsor and that he ‘lodged a sponsorship in support of the application’. Based on the information before the Tribunal, the Tribunal is satisfied that, at the time of application on 23 April 2019, the applicant was sponsored by the sponsor and that cl 820.211(2)(c)(i) is met.
There is no information before the Tribunal to suggest that the circumstances outlined in cl 820.211(2B) apply so the Tribunal finds that the sponsor was not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that cl 820.211(2)(a)(ii) is met.
A copy of the applicant’s movement records is on the Tribunal’s file. This documents that, on 23 April 2019, when the applicant applied for the Partner (Temporary) (Class UK) Subclass 820, he held a Visitor visa that was due to cease on 16 May 2019. As he held a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) need not be met.
Therefore, the Tribunal finds that the applicant meets the time of application requirements in cl 820.211(2). As the applicant meets the requirements of cl 820.211(2), he also meets cl 820.211(1)(b). As both cl 820.211(1)(a) and (b) are met, cl 820.211(1) is met. Therefore, cl 820.211 is met.
With respect to criteria to be satisfied at the time of this decision, the Tribunal finds that the applicant would have continued to meet the requirements of cl 820.211(2) except that the sponsoring partner has died and that he would have continued to be the de facto partner of the sponsoring partner if the sponsor had not died. Accordingly, the applicant meets the requirements of cl 820.221(2)(a) and (b). As the applicant meets the requirements of cl 820.221(2), he also meets cl 820.221(1)(b), and thus cl 820.221(1).
Accordingly, the Tribunal finds that the applicant meets cl 820.211 and cl 820.221(1) of Schedule 2 to the Regulations.
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A.
Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
The applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
In the primary decision the delegate noted, ‘[y]ou have provided a Registered Relationship Certificate issued in New South Wales, Australia on 22 May 2019. I accept that you and your sponsor are legally recognised as de facto partners.’ From review of the evidence on the Department’s file and research into the Relationships Register Act 2010 (NSW), the Tribunal finds that the applicant has provided evidence that the relationship was registered with the NSW Registry of Births, Deaths and Marriages pursuant to the Relationships Register Act 2010 (NSW). Accordingly, the 12-month requirement does not apply.
For these reasons, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.
CONCLUSION
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 for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations;
·cl 820.221(1) of Schedule 2 to the Regulations; and
·reg 2.03A.
Date(s) of hearing:  27 November 2024
Representative for the Applicant:

ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).