2215371 (Migration) - [2025] ARTA 475

2215371 (MIGRATION) [2025] ARTA 475 (9 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2215371

Tribunal:General Member T. Quinn
Place:Melbourne
Date: 9 March 2025
Decision:The decision under review is affirmed

Statement made on 09 March 2025 at 4:51pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – vague, evasive, inconsistent and late information and claims – mental health – no genuine spousal relationship – application made more than 28 days after last substantive visa held – not necessary to consider whether compelling reasons for not applying criteria – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5F(2), 65, 338(2), 347
Migration Regulations 1994 (Cth), rr 1.15A(3), 4.12, Schedule 2, cls 820.211(2)(d)(ii), 820.221(1)
CASES
Chand v MIEA (FCA, 7 November 1997)
He v MIBP [2017] FCAFC 206
Kumar v MIBP [2020] FCAFC 16
MIBP v Angkawijaya [2016] FCAFC 5
MIMA v Lay Lat [2006] FCAFC 61
MIMA v Rajalingham (1999) 93 FCR 220
Nejad v MIMA [1999] FCA 1827; [2000] FCA 741
Re MILGEA and Dhillon [1990] FCA 144
Re MIMA; ex parte Durairajasingham [2000] 168 ALR 407
Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
Selvadurai v MIEA [1994] FCA 1105; (1994) 34 ALR 347
“T” v MIMA [2000] FCA 467
Wang v MIMA [2000] FCA 963
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

On 13 November 2019, the applicant applied for Partner visa[1] (‘the visa’) based on her marriage to [Mr A] (‘the sponsor’ or ‘[Mr A]’).[2]
[1] Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
[2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 820 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
On 2 October 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that the applicant was the spouse of the sponsor as defined by section 5F of the Act (‘the delegate’s decision’).[3]
[3] See clauses 801.221 or 820.211 of the Migration Regulations 1994 (‘the Regulations’).
On 19 October 2022, the applicant applied for a review of the delegate’s decision with the Administrative Appeals Tribunal (‘the AAT’).[4]
[4]Pursuant to sections 338(2) and 347 of the Act. This application for review was in relation to the decision to refuse the subclass 820 temporary partner visa as is customary in the review of combined partner application refusals given only one decision can be the subject of a review application by the same person pursuant to regulation 4.12 of the Regulations.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are 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.
The applicant appeared in person before the Tribunal on 13 January 2025 to give evidence and present arguments. The sponsor also attended the hearing to give evidence. There were also five witnesses in attendance, but the hearing time elapsed before their evidence was able to be heard. The hearing was adjourned for a further two-hour video hearing in order that the five witnesses could give evidence.
The applicant and sponsor appeared by video to give evidence before the Tribunal again at the adjourned hearing on 28 January 2025. The five witnesses were not in attendance at the hearing as the parties elected to use this hearing time to address concerns about inconsistent evidence given at the hearing of 13 January 2025 and to rely on witness statements in relation to the evidence proposed to be given by the witnesses who had attended the hearing of 13 January 2025.
Both the hearings of 13 and 28 January 2025 were conducted with the assistance of an interpreter in the Punjabi and English languages.
The parties were represented in relation to the review and their representative also attended the hearings of 13 and 28 January 2025.
The Tribunal exercised its discretion to the second hearing by video conference. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also considered its objective to provide a mechanism of review that is fair, just, quick, accessible and responsive and the delay that would occur if the hearing were not be conducted by video in exercising its discretion, in particular given the difficulties in securing hearing rooms at short notice which was necessary at the conclusion of the hearing of 13 January 2025.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. A decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
For the following reasons, the decision under review is affirmed. In reaching this decision, I have had regard to:
a.the evidence given and submissions made at the hearing;
b.all submissions and written material filed by or on behalf of the parties (including post hearing submissions); and
c.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[5]
[5]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].
STATUTORY FRAMEWORK
Schedule 3 Criteria
Clause 820.211(2)(d)(ii) of Schedule 2 of the Regulations requires that at the time the visa application was made, and at the time of this decision, in the case of an applicant who is not the holder of a substantive visa, the applicant must satisfy the Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
In order to meet Schedule 3 criterion 3001, the application must have been validly made within 28 days after the ‘relevant day’. For the purposes of this application, the ‘relevant day’ is the last day the applicant held a substantive visa.
The last day the applicant held a substantive visa was 23 December 2015 being a student visa– nearly four years before the applicant made the application which is the subject of this review.
The applicant does not meet criterion 3001 of Schedule 3 of the Regulations (hereinafter referred to as ‘3001’) as she ceased holding a substantive visa more than 28 days prior to lodging the application which is the subject of this review.
Where any of the necessary Schedule 3 criteria are not met in a temporary partner visa application, I have the power not to apply the requirements of those criteria where there are compelling reasons for doing so.
Where an applicant does not meet 3001, the Schedule 3 criteria may not be applied where there are compelling reasons for not applying those criteria.
However, I note that this was not the basis of the delegate’s decision at first instance. In this regard, if a decision maker finds that there is no genuine relationship pursuant to the requirements of clause 820 of Schedule 2 of the Migration Regulations, then there is no need or utility in proceeding to consider whether the Schedule 3 criteria should or should not be applied as the substantive aspects of the claim have not been made out. Although the delegate did not articulate this, I consider it is clear on the face of the decision that this is the course the delegate took. Having considered all of the evidence before me, I take the same approach. Given that I am not satisfied that the applicant and sponsor are in a genuine spousal relationship, I do not consider it necessary or efficient to set out the aspects of the Schedule 3 criteria and how they apply to this case. In circumstances where I am not satisfied there is a genuine spousal relationship, I am also not satisfied there are compelling reasons not to apply the Schedule 3 criteria.
Genuine Spousal Relationship
Clause 820.211(2) of the Regulations requires that at the time the visa application was made the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
‘Spouse’ is defined in section 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.[6] In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[7]
[6] Section 5F(2)(aa)-(d).
[7] He v MIBP [2017] FCAFC 206.
The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied. I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.
General Assessment Principles
Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[8] In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants and sponsor, and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[9]
[8] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.
[9]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].
If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[10]
[10]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].
It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[11]
CONSIDERATION OF CLAIMS AND EVIDENCE
[11]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].
Valid marriage
In the present case, the applicant claims that she is the spouse of the sponsor, [Mr A] (‘the sponsor’), who is an Indian born Australian Permanent Resident who obtained his residency in 2010 after arriving on a prospective marriage visa (being sponsored by his first ex-wife) in 2007.[12] Based on the information before me I am satisfied that the sponsor is an Australian Permanent Resident.[13]
[12]See Department and Tribunal files.
[13]Ibid.
If the sponsor and the applicant are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of their Marriage Certificate has been filed with the Department which indicates they were married [in] November 2019.[14] On the evidence, the applicant and sponsor were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a).
[14] See marriage certificate in the Department file.
Evidence Generally
Although there was consistent evidence given at hearing on some aspects, there were inconsistencies regarding critical matters that suggest to me this is not a genuine spousal relationship. The applicants and sponsor have filed post hearing submissions. These submissions have been read and carefully considered, even if not expressly referred to.
Timeline
In or around [Year], the applicant had a daughter which she did not disclose prior to her current husband giving evidence about it at hearing. She claims that she had a religious but not a legal marriage with the father of that child.
The sponsor arrived in Australia in 2007 on a prospective marriage visa based on his relationship with his first wife who was fifteen years his senior.
The sponsor was married to his first wife from September 2007. There were no children of that relationship.
The applicant first arrived in Australia on a student visa in June 2009.
The sponsor obtained permanent residency in March 2010.
The sponsor and his first wife divorced in October 2010.
The sponsor married his second wife in December 2010.
The sponsor sponsored his second wife to come to Australia and there were two children of that relationship.
The applicant sought and was refused a student visa after her previous student visa expired in December 2015. She progressively appealed the refusal decision before withdrawing that her appeal to the Federal Circuit court in November 2019 when she made the present application for a partner visa which is the subject of this review. In this regard, I note that the applicant has not been onshore unlawfully at any stage, despite not holding a substantive visa at the time of her partner visa application in 2019.
The applicant was living with her ex-partner from November 2015-June 2018. She claims that they had a religious but not a legal marriage. There were no children of that relationship.
The sponsor and the applicant claim that they first met over the phone in March 2019 and met in person and commenced living together in May 2019.
The sponsor divorced his second wife in July 2019.
The sponsor and the applicant married [in] November 2019 and made the application which is the subject of this review ten days later on 13 November 2019.
Financial aspects of the Relationship
Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.
The evidence at hearing was relatively consistent about the applicant’s and the sponsor’s current work, hours, days and income. The evidence was consistent that the sponsor drives the applicant to and from work.
The evidence at hearing was consistent that the sponsor has had some challenges with a gambling habit and the evidence about the type, regularity and duration of gambling was consistent.
The parties do not have a joint bank account but transfer money between themselves to meet their outgoings. The applicant gave evidence suggestive that the sponsor was incapable of managing his finances without her and needed to transfer money to her so she could pay outgoings. The sponsor’s evidence at the first hearing was inconsistent with this and I formed the view that he does, in fact, have capacity to make internet banking transfers as necessary. At the second hearing the sponsor the sponsor said that he needs his wife’s help sometimes and does not know much about these things and seeks his wife’s help for things. I did not find the sponsor’s evidence at the second hearing about this issue persuasive. I found much of the evidence in relation to the sponsor’s abilities presented as contrived to suggest he is incapable of managing life without his wife, that he has such limited English that he needs her assistance to communicate and needs her support with his mental health. While I accept that the sponsor may rely on his wife presently in many aspects of his life, I note he has now been living in Australia for nearly two decades and consider the evidence about his capacity to complete basic tasks and to communicate was exaggerated. I note the sponsor’s evidence that he has always had a wife onshore to help and support him. However, I still remain concerned that the extent to which his lack of abilities has been exaggerated in an attempt to secure a positive migration outcome.
Tax documents in the name of the sponsor have been filed which are inconsistent with details provided in this case. The response from both the applicant and sponsor in this regard was that the sponsor was significantly behind on his taxes and had to correct them at a later date.
Tenancy documents have been filed suggesting the parties have lived together, sharing responsibility for rental payments, although I note that they have also had periods of sharing their accommodation with other people.
The parties have filed gas and water accounts in joint names.
I accept that there is some pooling of financial resources. The sponsor and applicant do not have any significant joint ownership of assets. They do not have any significant joint liabilities. There is no evidence that the applicant and sponsor owe any legal obligations to each other. I place some weight in favour of the parties in relation to the financial aspects of the relationship.
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 matters to be considered when assessing the nature of the household.
I refer to and repeat paragraphs 28-47 above.

The applicant gave direct evidence at hearing that she has no children and that she is too old now. Her husband then gave evidence that she had a daughter a long time ago who lives in [Country] and who she has no contact with. At the second hearing I invited the applicant to address this inconsistent evidence. She gave evidence that she was forced to marry her first husband who was a drug addict and ran away after having her daughter [number] years ago and has never seen her since. Upon further questioning, she then clarified that this was only a religious, not a legal, marriage. I am deeply troubled by this evidence. While I empathise with the applicant’s trauma in this regard, I am deeply troubled by her failure to disclose a child at any stage prior to her hearing. This raises concerns about whether she meets the Public interest criterion 4020 under clause 800.226 of Schedule 2 of the Regulations. It also raises serious concerns about her reliability as a witness, particularly when taken in combination with other inconsistent evidence before me. In post hearing submissions, the parties state that the applicant ‘has one daughter from her first marriage, which was not registered in India. After her husband’s passing, her in-laws forcibly kept her daughter and subsequently evicted [the applicant] from the family home’ and that the applicant has had no contact with her daughter over the last 15 years. These submissions to go on to say that the topic of her daughter was rarely discussed as it caused them both considerable distress. I am not satisfied by this explanation, in particular the failure of the applicant to disclose her daughter at any stage prior to her husband’s evidence. In direct evidence at hearing, she said she did not have any children and it was not until her husband gave the evidence that she had a daughter that she then disclosed it. My concerns about this evidence are primarily around the applicant’s failure to disclose in circumstances where she was under oath/affirmation to tell the truth. I am not satisfied by the explanation given in post hearing submissions and am very concerned about the applicant’s credibility as a witness.
The evidence was consistent that the sponsor has not had contact with his two children for about five years and is deeply saddened by this. The evidence at hearing was consistent that both the sponsor and applicant do not like to talk about their children and that part of their relationship is founded on their shared experience of grief in this regard.
Child support documents have been filed in relation to the sponsor’s obligations towards his two children.
The evidence at hearing was consistent that the applicant offers support to the sponsor in day to day living and household matters. The evidence was also consistent that the text message correspondence from 2019 wishing ‘dear daughter’ a happy birthday and ‘dear son’ a happy birthday were drafted and sent by the applicant in English for the sponsor to upload to his social media to acknowledge the birthdays of his children.
The evidence at hearing was consistent that the parties would like to buy a house together and that the sponsor has AUD20,000-30,000 saved for this and the applicant has AUD60,000-70,000 saved for this purpose.
The applicant gave evidence that her husband has had a dispute with his parents and family because he wishes to sell properties in India. The applicant gave this evidence in direct response to a question about why her husband no longer speaks to his parents. The sponsor did not give this evidence. When asked about why he does not speak to his parents he gave detailed evidence about wishing to remain married to his second wife and his parents not letting him stay with his first wife. I specifically asked whether there was any other reason why he did not speak to his parents and he said ‘no, that is the only reason, they wrecked my home.’ At the second hearing, the applicant gave evidence that the dispute about selling property was the only reason her husband had told her he was not speaking to his parents. At the second hearing, the sponsor said he has a house and land in his parents’ names in India and his parents want to give those assets to his sister who lives in India, but he has been supporting them in Australia and feels he’s being used. When I asked why he had not mentioned this at the last hearing, he gave evidence that he was not asked about that. I was not persuaded by this explanation. I am concerned that the sponsor has altered his evidence after reviewing the evidence given at the first hearing.
The sponsor gave evidence that he relies on his wife for helping him with day-to-day household tasks like shopping and meal preparation and that it would be very difficult for him without her.
I find the evidence in favour of and against the parties in relation to the household aspects of the relationship finely balanced.
Social Aspects of the Relationship
Whether the parties represent themselves to other people as being married to each other, the opinion of the parties’ friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
I refer to and repeat paragraphs 50-56 above.
The applicant and sponsor have filed some photos together and out with others. The quantity of photos filed is notably small given the length of the claimed relationship.
The parties gave evidence at hearing that they had met through an individual named [Mr B]. However, their evidence was not consistent about the applicant’s relationship with [Mr B]. The applicant gave evidence that she would meet [Mr B] at a [temple] in South Australia and first met in 2016. In contrast, the sponsor gave evidence that the applicant met [Mr B] through social media. I specifically asked if she knew him in person as well as on social media and the sponsor gave evidence ‘it was just through social media but then the three of us lived together for a few months’. I asked if the applicant and [Mr B] had met in person before that time and the sponsor gave evidence that ‘no they had just met on social media, I was quite stressed at the time, and he suggested there was this girl to me’. At the second hearing, the parties attempted to explain this inconsistency which I did not find persuasive. I accept that the parties did meet through [Mr B] and that [Mr B] does have a social media presence, but I do not accept the parties’ explanation for the difference in evidence about how the applicant first met, and the nature of the applicant’s acquaintance with, [Mr B].
The evidence is consistent that the parties lived together with [Mr B] for a few months in late 2019 but that they are no longer in contact with him due to an argument about [Mr B] paying for his share of household expenses.
The applicant has filed some evidence of sharing her relationship on social media. However, she has filed a social media post listing her as engaged in November 2019, referring to being ‘[Mrs B]’ soon. When I asked her about this at the first hearing, she said that this is the sponsor’s last name but sometimes you do not write your last name on your passport. In fact, none of the documents filed had a surname of ‘[Surname B]’ for the sponsor and they all say ‘[Surname A]’. I asked the sponsor whether he was known by any other names, he gave evidence his nickname is ‘[Nickname]’. I asked what his parents full names were, and he said his father’s surname was ‘[Surname A]’ and his mother’s surname was ‘[Surname C]’. I asked if he had ever had a last name other than ‘[Surname A]’ and he said ‘no, just [Surname A]’. At the second hearing, the sponsor gave evidence that he ‘mentioned according to what is on passport and licence’ and that his surname is [Surname B]. He claims that one of his children has the surname ‘[Surname B]’ and has filed his divorce order in post hearing submissions reflecting this. When I asked why his children would have different surnamed and he said it was a short name and referred to his sister’s name and so did not use ‘[Surname C]’. The parties have also filed post hearing submissions stating that the applicant saved the sponsor as ‘[First name with surname B]’ in her contacts since August 2024. Overall, I am troubled by this evidence.
The parties have filed statements from friends and some family in support of their relationship.
The parties had a small wedding or four of five people at the registry in Melbourne shortly after the applicant had moved to Melbourne and they did not have many friends or family.
There were five people in attendance to give evidence in support of the relationship at the first hearing. I adjourned the hearing for a further two-hour hearing so that these individuals could give evidence, but the parties elected to rely upon written statements from these individuals and use their additional hearing time to give more evidence themselves about their relationship and respond to inconsistencies in evidence at the first hearing.
I find the evidence for and against the parties in relation to the social aspects of the relationship finely balanced.
Nature of the applicant and the sponsor’s commitment to each other
The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.
I refer to and repeat paragraphs 59-66 above.
The applicant and sponsor claim to have been in a relationship for nearly six years and have now been married for over five years.
At 10.08am on 24 December 2021, the Department received an email from the sponsor’s email address saying as follows:
Hii this is [Mr A]
TRN [Reference]
I wana withdraw my sponsorship file with [the applicant] she is no more living with me she already left me around many days ago and she ended all reactions with me please stop this file process I would like to withdraw
The Department invited the applicant to comment on the adverse information it had received that the sponsor wished to withdraw his sponsorship. In response to that correspondence, the applicant filed a statutory declaration, handwritten in English, dated 4 January 2022, stating that the sponsor had been drinking with the parties’ housemate while his wife was at work and their housemate wrote the email from the sponsor’s phone.
In the statutory declaration of 4 January 2022, it is stated that the sponsor cannot read or write English and that he always gets help from his wife.
At hearing, I noted that the statutory declaration of 4 January 2022 was written in English with no Punjabi equivalent. I asked who had written this document, the sponsor gave evidence that his wife had written this document and when I asked how he knew what it said he said his wife translated it and then he also had someone else read and translate it to me and she also explained it to me.
At hearing, I asked about why the parties’ housemate would write an email like that and what the sponsor thought his housemate was doing with his phone. The sponsor gave evidence that his housemate asked to look at his phone, they were drinking, and he did not know what was going on. When I asked why his housemate would send an email like that the sponsor said ‘I don’t know why maybe he was jealous’. He gave evidence that he showed his wife the email the following day.
When I asked the applicant about why their housemate sent this email, she said that once they were drinking together, they got into a fight, and she called triple zero and he was annoyed at her for doing that and because of that he withdrew her file from the phone. I indicated that her husband had not given any evidence about having a fight with their housemate and had given evidence that he did not show her the email until the next day. She gave evidence that the fight did not happen on the same day as the email was sent. At the second hearing, the parties both gave evidence that there had been a fight between the sponsor and their housemate on a previous day which prompted the applicant to call the police and the police attended and asked the housemate to leave but it was during the COVID19 Pandemic. When I asked the sponsor why he had not mentioned this history (of having a fight with his housemate and his wife calling the police and the police attending their home) at the first hearing, he said that that was what he had said. When I reminded him that this is not what he had said at the first hearing he said he was just trying to answer the questions. I am very troubled by this evidence.
The total hearing time for this case was approximately five hours. In the last minutes of the second hearing, the applicant indicated that her husband had tried to commit suicide in March 2022. I was and am very troubled by the decision not to raise this evidence at any time prior to the end of a hearing in a case that has been on foot for over five years. When I asked the sponsor about this incident, he said he was really disturbed, and his children’s money was taken away and he started his life again and his brain stopped working. When I asked when and how his attempted suicide happened, he said it was about two years ago and h does not know much about himself, ‘even the police asked me why and what happened, and I really don’t know what was the reason and why’. The applicant said she had not raised this sooner as she had not been able to locate the corroborating documentary evidence. She gave evidence that he had attempted to swallow weed spray in front of her at1:30am, refused to let her leave the house and she ran away and asked neighbours about 1 kilometre away who were having a party to call the police. She gave evidence that the police came, and he was taken to hospital. I requested corroborating evidence for this event and gave the parties time to file same.
In post hearing submissions, the parties have filed (inter alia):
a.A statutory declaration dated 21 February 2025 from the applicant’s employer stating that on 24 March 2022 the applicant could not attend work as her husband had attempted suicide and that she considers it in their best interests to stay together;
b.Screen shots of text message correspondence with the date 26 Mar 2022 listed with the following exchange commencing at 2:21am:
‘I can’t work tomorrow’
‘is everything ok?’
‘My husband swallowed poison’
….
‘He loosing money every day at [hotel]
Today he picked me up and straightway went to [hotel]. Don’t know how much he lost’
…
‘How’s your husband’ 10:48am
‘Police drop Him at home.
Sleeping now’
…
‘He is sleeping again. I am so scared of him’ 5:54pm
…
“He can’t swallow because of treatment. Only liquid. I ask him if want a cup of tea he said no hot stuff’
c.An Emergency Department Clinical Sheet for the sponsor dated 26 March 2022 listing ‘time seen’ as 2:52am stating the following:
Patient’s wife called police and reported
-Patient lost significant amount of money at casino/gambling
-Was threatening to kill himself
-Ingested half a bottle of weed killer
-Wife took the bottle off his hand and drained it in the toilet
On police arrival at his home
Patient was calm sitting on a chair
An empty bottle of weed killer found in the garage
Stated the complaints from wife was not true
Stated he had 2 bottles of beer last night, gambled but did not loss (sic) much money, went home, some argument with wife which has been going on over the last few months. today called police and allegedly report him to police. patient denied OD or ingestion of toxin liquid
On examination
appers (sic) well and calm
nil signs of oral ulceration or smell of chemical ingested
obs stable
Assessement (sic) – stable with nil signs of ingestion of poison
-Nil acute mental health abn
plan
d/c with police
police with d/w wife and plan disposition
(emphasis added)
I am deeply troubled by the contents of the Emergency Clinical Sheet. It is clear from this document that the sponsor did not, in fact, attempt suicide. I accept it is possible that he threatened suicide to his wife despite the medical records which indicate the sponsor stating his wife made it up. It is impossible to find conclusively in relation whether the evidence at hearing about the sponsor’s threat to commit suicide was inaccurate or whether the sponsor’s statements recorded by the hospital were inaccurate. It is clear, however, that the applicant did not ingest the weed killer and therefore did not attempt suicide.
I note that the applicant claimed at hearing that her husband would not let her leave to call the police and she had to jump the fence whereas the medical records suggest that she took the bottle from her husband and drained it in the toilet. The text message correspondence also suggests that the sponsor had ingested the poison and could not swallow ‘because of treatment’ yet the medical records suggest that no treatment was given as none was necessary given the sponsor was stable and there was no suggestion of having ingested the [poison].
Ultimately, I consider this evidence raises serious questions about the credibility of the parties, in particular the applicant. The sponsor was somewhat vague and evasive when I asked him about his suicide attempt, whereas the applicant gave detailed evidence about the incident. The evidence at hearing and the post hearing submissions are inconsistent in many regards to such an extent that I have serious concerns about the applicant’s credibility and reliability as a witness.
Post hearing submissions include medical evidence stating that the applicant is suffering with depression and that her husband’s mental health is impacting her mental health. She has filed document where she reports that her husband is drug dependent, hallucinates and has thought disorder/delusional thoughts, is verbally abusive but feels safe at home and that her husband has suicidal thoughts, attempted suicide and is not seeing doctors.
Medical records for the applicant from January 2023 stated that the applicant has persistent thoughts of self-harm, is depressed, is
‘planning to relocate , scared from husbannd (sic) , decided to separeatye
discussed matter with other
husband has schizopherenia’
These records appear to suggest the applicant was considering separation from the sponsor in January 2023.
The medical records for the applicant mention many and extensive health and other issues for the sponsor. These notes about the applicant are not corroborated by the sponsor’s own medical records. The aforementioned Emergency Clinical Sheet states ‘Nil acute mental health’. Further, the medical documents filed in relation to the sponsor state he ‘was very stressful looking and his BP was very high due to he mentioned his stress’ (dated 13 February 2025 regarding a consultation on 28 January 2025, which was the same date as his second hearing before the Tribunal. Stress would be expected for any participant unfamiliar with giving evidence before a court or Tribunal on the same day as giving such evidence. Another medical document dated 25 February 2025 states that the sponsor presented to the author doctor over a year before the date of writing, on 12 September 2023, ‘with symptoms suggestive of Depressive Anxiety disorder’. The parties have filed a referral dated 19 August 2024 for the sponsor for opinion and management for depression, stress, gambling issues (no regular medications).
The evidence at hearing was consistent that the sponsor is not taking medication for his mental health and does not want to. It was clear from the applicant’s evidence that she considers he ought to be taking medication.

A letter dated 3 January 2025 from a registered psychologist has been filed. This document states that the sponsor has been consulting with the psychologist since September 2024 and that his wife has attended a couple of sessions as his support person. At hearing, the parties gave consistent evidence that the psychology practice is close to home, and they walk to these sessions. The evidence was consistent that these sessions are conducted in the Punjabi language. The applicant gave evidence that she always attends with her husband, and he books the appointments on her day off. When I asked why she attends with him she gave evidence that he is lonely, need company and is stressed when he cannot understand someone talking to him in English. When I asked whether she goes into the room with her husband for his sessions, the applicant said the psychologist asked her to come as a support person.
In contrast, when I asked the sponsor why his wife comes into the room with him for his sessions, he gave evidence it was ‘so she can be comforted that I’m telling the truth to her because she might think I’m lying about things so if she comes in, she has the comfort that I’m being truthful’. When I asked what his sessions are mostly about, he gave evidence that he mainly speaks about his children and gambling. At the second hearing, when I put these inconsistencies to the applicant, she gave evidence about his husband’s failure to disclose his gambling.
I am very concerned by the medical evidence before me. I accept that both the applicant and sponsor have challenges with their mental health. However, I consider the applicant has severely exaggerated the sponsor’s mental health concerns.
The sponsor gave evidence at hearing that he had never wanted to separate from his second wife and his parent would not let him stay with her.
The parties have filed text message exchanges which span various dates including some from 2019 and many from late 2022-Augsut 2024. There are many periods – weeks and sometimes months at a time - with limited or no communication between the parties in these exchanges. The parties claim that the sponsor has two phones.
In the text communications, there is a message dated 7 October 2019 where the applicant states ‘please don’t call me. Don’t harass me anymore. I can’t tolerate your anger anymore. I don’t want to marry with you. I’ve cancelled the marriage ceremony. I don’t want to see you in my life. I don’t want to live with you. You left the house yourself. Now please don’t come back here otherwise I will call the police. I feel danger. I am already in depression please pity on me’. When I asked the applicant about this text message, she gave evidence that she was very angry after they had had an argument. I noted that the applicant had given evidence her husband could not read English, yet this text message was in English. She gave evidence that sometimes she texts him things he can’t understand but ‘slowly, slowly I learn to text in Punjabi’.
The text communications also show that in October 2022, the applicant blocked the sponsor as a contact for over a week. When I put this to her, she said, ‘we must have had an argument’ and that she would have unblocked him the next day and she could not remember what it was about, but she only blocked him on WhatsApp. When I asked the sponsor about this he said, ‘I don’t know why she would.’
The sponsor gave evidence at hearing that if his wife could not stay in Australia, he would be forced to move to India with her as he has no family support in Victoria and post hearing submissions have been filed about the impact this would have on the sponsor’s financial position, his children and their child support and the couple’s future plans to buy a house. Taking the evidence as a whole, I do not accept the sponsor’s evidence that if this application is not successful, he will move to India. After nearly two decades onshore and gaining permanent residency, together with the other evidence before me, I do not accept that the sponsor has any intention of leaving Australia for any extended period.
Taking the evidence as a whole, I do not consider the applicant and sponsor have the level of knowledge about each other in relation to critical matters that one would expect of genuine spouses.
Given the tumultuous history of this relationship, I have serious reservations about whether either of the parties view the relationship as a long term one and have serious concerns that the visa is being sought to secure a positive emigration outcome for the applicant.
I do not consider the evidence in relation to the degree of companionship and emotional support that the applicant and the sponsor draw from each other is consistent with a genuine spousal relationship. I am very troubled by much of the evidence in relation to this factor and place significant weight against the parties in this regard.
Other Matters
At the second hearing, there seemed to be a suggestion that the sponsor had some sort of mental incapacity and/or issues with his memory and this explained the inconsistencies in evidence given. I asked the sponsor directly if he had any sort of intellectual disability. He gave evidence that when he sits for a while, he feels numb, and his brain is not working any more and he is uncomfortable in himself. He gave evidence he has blood pressure, liver problems and depression. I asked if he had any medical diagnosis for the symptoms he described of ‘feeling numb’ and he said no but his treatment is ongoing, and they will find out and let me know what the problem is. When I asked if he had been to the doctor about his brain and his feelings of discomfort he said, ‘yes I mentioned to the doctor even last night pain in my back.’ I indicated that this was the first time the suggestion of medical incapacity had been raised and that there was no medical corroborating evidence for any issues that would impact the sponsor’s ability to give evidence. I explained that it appeared the issue was being raised to explain inconsistent evidence which is concerning. I consider the medical document dated 25 February 2025 described in paragraph 86 above was attempting to address this issue. I do not consider this document supports a proposition that the sponsor has any sort of disability or medical issue that impacts his memory or ability to give evidence. Stress and high blood pressure are a relatively normal bodily and emotional reaction to a court style environment, particularly for an individual unfamiliar with such environment.

100. There is no reliable medical evidence before me suggesting that the sponsor was suffering from some medical condition that impaired his evidence at the hearings. At no stage did the sponsor request an adjournment or indicate that he was somehow unable to proceed. If he appeared not to understand my question, I repeated the question and/or asked it in a different way. There is no corroborating medical evidence to support a claim that the sponsor’s mental health (or any other) issues impact his ability to give evidence or his memory. Although the sponsor was often vague or evasive in his evidence, I did not consider he had issues comprehending my questions or that his level of discomfort with those questions was outside the expected range one would expect of any individual being questioned about the nature of a relationship in a court-type environment.
101. The Tribunal Guidelines in relation to assessing credibility dictate that evidence is to be assessed in its entirety, not just in isolated parts.[15] The guidelines also state that Members should focus on what is objectively or reasonably believable in the circumstances. The Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.[16] Where evidence is incoherent, vague or lacking the detail or knowledge where greater detail or knowledge might be expected of a person in the applicant’s claimed position, the weight placed on the applicant’s evidence may be limited and the applicant’s credibility may be questioned.[17]
[15]Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997); Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J, with whom North J agreed, at [50]; Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
[16]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at 348.
[17]Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827 per Tamberlin J at [9], upheld on appeal, Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963 per Goldberg J at [20] to [23]; “T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [27]-[47]
102. Taking the evidence as a whole, I have concerns about the applicant’s and the sponsor’s credibility, and I am not satisfied that they have provided reliable or truthful evidence in relation to a number of aspects of the questions asked at the hearings as set out above.
103. Although I accept that there are some aspects that fall in the applicants’ favour in this case, I give greater weight to the inconsistent evidence and evidence lacking in credibility and reliability. I consider the latter evidence raises serious doubts about the applicant and sponsor’s veracity in their evidence about the genuineness of the relationship.
104. Although the Full Federal Court has held that people enter into marriages with a variety of purposes and motives and it is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country,[18] I consider this case is motivated by a desire to secure a positive migration outcome for the applicant and that the applicant and the sponsor are not in a genuine spousal relationship.
[18]         Re MILGEA and Dhillon [1990] FCA 144.
Conclusions
105. There are hundreds of pages of documents before me and I have read and carefully considered each of these, although they may not all be referred to in the written decision herein. I have assessed the evidence. I accept the applicant and the sponsor are known to each other and may have cohabited for some time, but I do not consider their relationship is that of genuine spouses.
106. Having regard to all of the circumstances of the relationship and the evidence taken as a whole, I am not satisfied that when the application was made and at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others or that their relationship is genuine and continuing or that they are living together, or not separately and apart, on a permanent basis.
107. I am not satisfied that the requirements of section 5F(2) are met at the time the visa application was made or at the time of this decision. The applicant therefore does not meet the requirements of clauses 820.211(2) or 820.221(1).
DECISION
108. The decision under review is affirmed.
Date(s) of hearing:  13 and 28 January 2025
Representative for the Applicant:              Mr Syed Hassan Ali Shah (MARN: 1803878)

ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day‑to‑day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long‑term one.

(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).