2319455 (Migration) - [2025] ARTA 453

2319455 (MIGRATION) [2025] ARTA 453 (25 FEBRUARY 2025)

2319455

DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2319455

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 25 February 2025

Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 25 February 2025 at 2:45pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Federal Circuit Court remittal – false and misleading information – bogus document – birth certificate – allegation of a contrived relationship – relationship ceased – allegation of family violence – paternity issue – physical assault – no evidence of pooled financial resources – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 359, 375, 376
Migration Regulations 1994, Schedule 2, cls 801.221, 801.226; Schedule 4, Public Interest Criterion 4020; r 1.15
Status of Children Act 1974 (Vic)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
He v MIBP [2017] FCAFC 206
Trivedi v MIBP [2014] FCAFC 42
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 by a delegate of the Minister on 28 September 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 March 2013. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.801.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate concluded the applicant did not meet the requirements of Public Interest Criterion 4020 because he had provided false and misleading information in a material particular, namely his parents knowledge and endorsement of the applicant’s relationship with the sponsor.
The applicant applied for review of the Department’s decision, which was dated 28 September 2015. The Tribunal (differently constituted) in a decision record dated 13 October 2017, affirmed the decision of the Department, and concluded that a false or misleading information was given by the applicant in relation to his parents’ knowledge and endorsement of his relationship with the sponsor, and a bogus document was provided in relation to the birth certificate of the claimed child of the applicant and the sponsor.
The applicant appealed the decision of the Tribunal dated 13 October 2017. The judgement of the Federal Circuit and Family Court of Australia (Division 2) dated [in] October 2023, remitted the matter back to the Tribunal to redetermine its review, on the basis that the Tribunal’s decision was affected by jurisdictional error as the Tribunal does not make any finding there was an element of fraud or deception involved in the provision of information given to the Department as required pursuant to Trivedi v MIBP [2014] FCAFC 42. Further, the Tribunal’s decision was affected by jurisdictional error as the consideration of the birth certificate as a bogus document did not correctly apply the legislation that states where the parents of a child are married, in absence of evidence to the contrary, it shall be presumed that child is the child of those parents.
The applicant appeared before the Tribunal on 17 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Preliminary issues – nondisclosure certificates
There were two nondisclosure certificates issued on the Department file, a certificate issued pursuant to s.375A of the Act dated 15 October 2015 and a certificate issued pursuant to s.376 of the Act dated 15 October 2015.
A copy of these two certificates had been provided to the applicant by the previously constituted Tribunal. Copies of the two certificates were again provided to the applicant by the Tribunal on 6 January 2025.
The Tribunal is satisfied that that the certificate issued pursuant to s.375A of the Act is not valid as it does not identify the file number in relation to the information but refers to the information contained in folio/s (insert folio number/s) of file number (insert file number). The folio numbers are provided in the body of the certificate.
The Tribunal discussed the information to which the s.375A certificate referred, with the applicant in the hearing. The documents included interdepartmental emails about the process of the application for the visa, any concerns about the application, the applicant’s biodata page, photos of the applicant and the sponsor provided by the applicant, waiting for the applicant to return to form 80, and the reason why the site visit to the applicant’s parents was requested. The Tribunal discussed this information with the applicant, and ensured the applicant was aware of the information to which the certificate applied, and aware of which information was relevant to the issues to be determined in the review. The Tribunal discussed with the applicant that the information that is relevant to the issues to be determined in this review which is in the documents, was also recorded in the Department’s decision record, a copy of which was provided to the Tribunal by the applicant. The Tribunal discussed the information with the applicant in the hearing. The Tribunal considered the written submissions and statements provided by the applicant. The Tribunal is satisfied that the applicant was aware of the relevant information, and had provided it to the Tribunal.
The information which was adverse was relevant to the Department decision in relation to PIC 4020. The Tribunal reached a different conclusion to the delegate in relation to the knowledge and endorsement of the applicant’s relationship with the sponsor by his parents (see later in this decision record), and was therefore not required to put the information to the applicant pursuant to s.359A of the Act.
The applicant’s representative advised the documents covered by the s.376 certificate had been included in the appeal court book, and therefore had been provided to the applicant by the Department. The information is three folios of an allegation made to the Department by the person claiming to be the biological father of the child [Child A], including that the allegation between the applicant and the sponsor was a contrived relationship. The applicant’s representative provided this information to the Tribunal prior to the hearing to confirm it was the same information. The Tribunal has determined that the nondisclosure certificate is invalid on the basis that the information has already been disclosed and any direction that it not be disclosed is therefore meaningless. The Tribunal is satisfied based on the information provided by the applicant, that this information has already been disclosed to the applicant, and the Tribunal does not need to provide this information or put this information to the applicant.
Evidence provided by the applicant
The Tribunal sent an email to the applicant on 6 January 2025 setting out that the issues to be canvassed in the review included whether the applicant met the requirements of PIC 4020(1), and if not, whether there are circumstances that justify those requirements being waived pursuant to PIC 4020(4). The Tribunal advised that consideration of the waiver may include whether the applicant and the sponsor were in a spousal relationship within the meaning of s.5F(2) of the Act, prior to the cessation of the relationship. The Tribunal provided the applicant with a copy of PIC 4020, the definitions in s.5F(2), and the Schedule 2 requirements set out for Subclass 801 Partner visas. The Tribunal is satisfied the applicant was on notice of the issues to be determined in the review.
The applicant had provided the Tribunal with a complete copy of the appeal Court Book, without identifying which of these documents had not previously been provided to the Department or the Tribunal, and without identifying the relevance of any of the documents contained in the Court Book. The Tribunal had originally scheduled a hearing for 13 February 2025 and received hundreds of folios and late submissions from the applicant, which did not identify the issues to be determined in the review. The Tribunal was concerned that it was unable to properly prepare for the hearing, or to identify the submissions or claims the applicant was making that were relevant to the review.
Accordingly the Tribunal postponed the hearing from 13 February 2025 to 17 February 2025. The Tribunal issued a direction dated 11 February 2025, directing the applicant list and identify any and all of the documents in the court book of 253 pages, which had not previously been provided by the review applicant to the Tribunal or to the Department, and are set out the relevance of these documents (if any). The Tribunal also directed that the applicant list, identify and set out the relevance of any document the review applicant has provided and wishes the Tribunal to rely on in relation to issues to be determined in the review. The Tribunal also directed the applicant set out a list of all witnesses who would attend the hearing and provide a brief outline of their evidence, and the relevance of their evidence to the issues to be determined in the review.
The Tribunal did not receive any submission in relation to the documents contained in the Court Book which had not previously been provided. The Tribunal received a late submission dated 15 February 2025 with 198 folios of attached documents. The documents included statements by four of the proposed five witnesses at the scheduled hearing.
At the hearing on 17 February 2025 the applicant’s representative provided a list of 26 documents, which the applicant’s representative asked the Tribunal to consider as the relevant information to the issues to be determined in the review.
These documents include the applicant’s divorce dated 2012 from his first wife, the registered and the unregistered marriage certificate between the applicant and the sponsor, the acknowledgement of the applicant’s partner visa application (listed as including the application but application for the visa was not included in these documents), two statutory declarations dated 23 December 2013, a statement from the applicant that he was waiting on his Indian police clearance certificate dated [in] January 2014, photographs (including of the applicant and sponsor after the birth of [Child A]), bank statements, medical documents, bond receipts and rent receipts, lease agreements in joint names, phone and utility bills for the leased premises, the affidavit of the applicant’s parents (the date of which is not clear), statutory declaration of the applicant dated 10 January 2014 declaring he does not intend to sponsor [Person A], the Victorian birth certificate of the [Child A], notification of the grant of the subclass 820 partner visa dated 18 March 2014, the invitation from the Department to comment on adverse information dated 28 May 2015 (listed as two documents), two individual pages from part of the applicant’s statement, first page of the applicant’s application for an intervention order, the applicant’s statutory declaration form 1410 (in support of his claim re family violence), first page of the final intervention order, notification of the refusal of the subclass 801 partner visa, page 3 of the refusal decision record, application for review dated 12 December 2015, invitation to attend the hearing 24 March 2017, hearing response and submission by previous representative dated 10 March 2017, statutory declaration from the applicant’s father dated 5 August 2016, statutory declaration from the applicant dated 17 February 2017, statutory declaration from the applicant dated 10 February 2025 with several attachments all included as individual documents above, statutory declaration from two neighbours of the applicant both dated 10 February 2025 (who both gave evidence at the hearing), affidavit of the applicant’s father dated 10 February 2025, affidavit of the applicant’s mother dated 10 February 2025, collection of invoices and photos, business profit and log statement for [Business 1], and bank statements dated 2024.
The Tribunal has considered all the listed and provided documents, as requested by the applicant.
The Tribunal notes that there are other documents relevant to be considered in relation to this review that have been provided by the applicant, and accordingly has also considered the other evidence and information provided by the applicant. These include several statutory declarations by the applicant, statements by the sponsor, evidence of the relationship including financial documents, evidence of the household, photographs, evidence of social recognition by others, evidence of communication and additional miscellaneous receipts and invoices.
The Tribunal discussed with the applicant and his representative in the hearing on 17 February 2025 the benefit of providing organised and clear submissions relevant to the issues to be determined in the review. The Tribunal discussed that it would not take any action for the applicant’s failure to comply with the direction by the Tribunal.
Assessment of Public Interest Criterion 4020
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 801.226 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate circumstances justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The Tribunal has considered that the applicant provided information that his parents were aware of his relationship with the sponsor and endorsed his relationship with the sponsor. The Tribunal accepts that the Department made a decision to conduct a home site visit with the applicant’s parents in India. The Tribunal is unable to assess the reliability of the conversation that occurred during that home site visit, in which the applicant’s parents did not provide information that they knew of or endorsed the relationship between the applicant and the sponsor. The Tribunal’s parents claim they thought they were being asked about the applicant’s previous relationship, which had ended in divorce. The Tribunal’s parents claim they were distressed at the time after the sudden and traumatic death of the applicant’s father’s sister. The Tribunal accepts there is plausibility in the explanation offered by the applicant’s parents.. The Tribunal’s parents have provided detailed and consistent written evidence to the Tribunal that they were aware the applicant was in a relationship with the sponsor, they were aware the applicant had married the sponsor, and they were aware the applicant and sponsor had had a son.
The Tribunal has considered the written evidence before it. The Tribunal is not satisfied, based on the conclusions after the home site visit in India, that there is reliable evidence before it that there is an element of fraud or deception in the statement by the applicant that his parents knew of and endorsed his relationship with the sponsor. The Tribunal is satisfied that the applicant’s parents have provided an explanation for any misunderstanding given in the interview at the home site visit.
The Tribunal is not satisfied that there is evidence of an element of fraud or deception by a person, to engage the requirements of PIC 4020(1), that the applicant has provided false or misleading information. Overall the Tribunal does not conclude and is not satisfied that the applicant’s statements that his parents are aware of his relationship and endorsed their relationship, was false or misleading information.
The Tribunal indicated that it had reached this conclusion based on the written evidence, including the statements and affidavits of the applicant’s parents. The applicant’s parents were available to give evidence but were not required to do so.
The Tribunal has also considered the matters discussed in the decision of the Tribunal (differently constituted) dated 13 October 2017, and referred to in the judgement of the Federal Circuit and Family Court of Australia (Division 2) dated [in] October 2023. The Tribunal accepts the evidence of the applicant that the [Child A] is not his biological child. The Tribunal also accepts that the provisions of the Status of Children Act 1974 (Victoria) mean that as the applicant and the sponsor were married, there is a presumption of parentage of the child at the time the birth certificate was registered, and it is erroneous to then presume that the birth certificate which records the applicant and the sponsor as the parents of the child was based on false or misleading information.

The Tribunal is satisfied that the birth certificate is not a bogus document.
For the above reasons the Tribunal is not satisfied that the applicant provided false and misleading information in a material particular or a bogus document. The Tribunal is not satisfied that the provisions of PIC 4020(1) are engaged.
Therefore, the applicant meets the requirements of PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).
There is no evidence before the Tribunal that the applicant or a member of his family unit have been refused visa because of a failure previously to satisfy PIC 4020(1) in the three years prior to the application for the visa being made.
Therefore, the applicant meets the requirements of PIC 4020(2).
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
There is no evidence before the Tribunal that the applicant does not satisfy the identity requirements.
Therefore, the applicant meets the requirements of PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence before the Tribunal that the applicant or any family unit member have previously been refused visa because of failure to satisfy the identity requirements, during the period starting 10 years before the application was made.
Therefore the applicant meets the requirements of PIC 4020(2B).
Conclusion on the Public Interest Criterion 4020
On the basis of the above, the applicant satisfies the requirements of PIC 4020 for the purposes of cl.801.226.
Assessment of the time of decision cl.801.221 criteria
The applicant first applied for the visa on 12 March 2013, which is nearly 12 years ago. The applicant provided information to the Tribunal relevant to his relationship with the sponsor and his claims for family violence. The applicant’s representative’s submission dated 13 February 2025, and the information and evidence provided by the applicant to the Department and to the Tribunal included information about the relationship between the applicant and the sponsor, the cessation of the relationship between the applicant and the sponsor, and the applicant’s claim that he experienced relevant family violence during the relationship. The Tribunal discussed with the applicant that the application for the visa, and the process of review and appeal had been going on for far too long, and it was appropriate to consider all these issues. The applicant had submitted to the appeal court that these issues of the spousal relationship and the claims the applicant experienced family violence, were material to the issue of whether the applicant met the requirements of PIC 4020. The Tribunal accepted the submission that the applicant had provided all the information and evidence in support of the determination of the criteria for the partner visa in cl.801.221. The Tribunal is satisfied that the applicant was prepared to give evidence and present arguments and had provided all relevant information and evidence, and was aware the issues of the whether the applicant met the requirements of cl.801.221, were issues to be determined in the review.
The Tribunal had advised the applicant in correspondence dated 6 January 2025, that issues to be determined in the review, and relevant to the review, included whether the applicant was the spouse of the sponsoring partner within the meaning of s.5F(2) prior to the cessation of the relationship. The Tribunal had provided the applicant with a copy of s.5F(2) of the Act, and cl.801.221. The Tribunal discussed in the hearing on 17 February 2025 that it would proceed to determine the issues as to whether the applicant and the sponsor had been in a genuine spousal relationship, whether that relationship ceased, whether they applicant had provided information that met the evidentiary requirements for a claim of family violence, and whether the applicant met the family violence criteria.
The applicant applied to the visa on 3 April 2023 on the basis of his relationship with his sponsor. Relevantly to this matter, primary criteria include cl.801.221, which require the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased, and that certain circumstances exist. These can include that the applicant, or a member of the family unit, has experienced family violence committed by the sponsor , pursuant to cl.801.221(6)(b) and (c). In this case the applicant claims the relationship with the visa sponsor has ceased, and that he has been the victim of family violence.
The delegate, and the subsequent review and appeal, did not consider the issue of the relationship between the applicant and the sponsor, or the applicant’s claim that he suffered relevant family violence.
The applicant claims to have been the spouse of the sponsor, and while that relationship existed, he experienced relevant family violence. ‘Spouse’ is defined in s.5F(2) of the Act, and provides that a person is the spouse of another, where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the applicant and the sponsor’s household, and their commitment to each other. The circumstances of the relationship are set out in reg 1.15A(3). Each of the specific matters contained in reg. 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
The Tribunal is satisfied based on the registered marriage certificate, that the applicant and the sponsor were married in Victoria [in] March 2013. The Tribunal is satisfied based on the Victorian birth certificate that [Child A] was born in [specified year], in Melbourne, and was recorded on his birth certificate as being the child of the applicant and the sponsor. The applicant and the sponsor are recorded as the informants on the birth certificate, and are recorded as residing at the same address on the birth certificate.
The Tribunal has considered the relationship statements of the applicant and the sponsor, statutory declarations of the applicant and the sponsor dated 23 and 27 March 2015 respectively, statutory declaration of the applicant’s landlord, confirming the parties resided together at his property, statements from the real estate agent confirming the applicant and sponsor were joint tenants at a property in [Suburb 1], bond document in joint names, joint rent receipts, letter from the sponsor dated 3 June 2013, medical reports, three handwritten statutory declarations of limited content, joint bank account, correspondence to the applicant and/or the sponsor at the same address, including utility bills, correspondence from the electoral commission, invoices and receipts, collection of photos, statutory declarations and affidavits from the applicant’s parents, two statutory declarations from neighbours of the applicant and sponsor who also gave evidence at the hearing, forms provided in support of the application, identity documents and other information provided.
The written and documentary evidence provided by the applicant suggests that the applicant and sponsor were in a spousal relationship.
The oral evidence of the applicant, and the two witnesses who attended the hearing, indicates the applicant and sponsor were in a married relationship prior to the relationship ceasing.
The Tribunal has also considered the allegation that was made to the Department on 17 December 2014 by a person who did not remain anonymous, and gave his full name; the Tribunal will record this person only by his first name, [Mr A]. The information was provided by [Mr A], a person who claims to be the biological father of the [Child A]. The information provided was that the applicant and sponsor are not in a genuine relationship, and that the person [Mr A] was in a relationship with the sponsor at the time the child was born and was there at the child’s birth. The applicant stated in response to this information that he always believed he was the father of the child, and the sexual relationship between the sponsor and himself commenced at a time which would be commensurate with the time the child was conceived. The applicant had provided written evidence that he was present at the time of the birth of the child, and provided photos of the child with his mother in the hospital. The applicant did not dispute that the person who gave the information is the biological father of the child. The applicant stated that the sponsor had threatened him, which was the reason he obtained the intervention order, after he discovered he was not the biological father of the child. In answer to a question from the Tribunal, the applicant stated that he accepts that the sponsor must have been in a sexual relationship with the biological father of the child, at the same time as being in a relationship with himself.
There is no further evidence before the Tribunal that the relationship between the applicant and the sponsor was contrived, or that the sponsor received any form of payment or benefit for marrying the applicant. Based on the lack of any evidence that confirms this allegation, the Tribunal gives limited weight to this allegation that the relationship between the applicant and the sponsor was not genuine. The Tribunal has considered the written evidence and information provided by the applicant, and the oral evidence of the applicant, and accepts there is sufficient evidence to indicate that there was a genuine relationship between the applicant and the sponsor.
The Tribunal is satisfied based on the evidence of the applicant and the information provided by the applicant, that [Mr A] is the father of the [Child A]. The Tribunal is satisfied that there is evidence that [Mr A] and the sponsor had a relationship which resulted in the conception of the child. There is evidence, including the information provided by [Mr A] to the Department, which suggests that [Mr A] also had an ongoing relationship with the sponsor, at the time of the relationship with the applicant.
In the application and summons for an intervention order, dated [in] June 2015 provided by the applicant, the applicant sets out to the magistrates Court that he has been separated from the applicant for one week, and the relationship between himself and his wife broke down in May when he received documentation from DHS and the Department of Immigration regarding the paternity of the child. The applicant stated in the application for the intervention order he had telephoned the sponsor, who was in Perth, and the sponsor told him to “F*** off”, and stated he was not the father of the child. The applicant stated in the application for the intervention order that he arranged to meet the sponsor on [a day in] June 2015, during the conversation she became aggressive, told her to get out of her house, and said that she and the father of the child would ruin the applicant’s life. The Tribunal is satisfied based on the document provided by the applicant, that the sponsor and the father of the child were still in contact in June 2015.
In his evidence to the Tribunal the applicant stated that the applicant would travel to Perth many times. The applicant stated he did not travel with her, and on several occasions she left the [Child A] in his care. The applicant stated that he continued to work, in his full-time job as [an occupation 1], when the child was left in his care. The applicant stated that he worked full-time during the relationship, and the sponsor did not work. He stated he had no knowledge of her Centrelink payments and status. The applicant stated he paid the rent and all bills, and the sponsor paid her own phone bill. The applicant stated that whilst he was at work and the sponsor was away in Perth, the child was cared for by the sponsor’s mother, although she was undergoing treatment for cancer at the time. The applicant stated that the child came to the attention of DHS when the sponsor’s mother became seriously unwell, and was admitted to hospital at a time when the sponsor was in Perth, and he was at work.
The applicant stated the child was taken into care in late April (or possibly early May) 2015. The applicant stated he did not see the child after the child was taken into care by DHS.
The applicant stated he was advised in a document from the Department of Human Services, and the Department of Immigration that he was not the biological father of the child, and was referred to as the step father of the child. The applicant stated that when he contacted the sponsor by telephone, when he received these documents, she confirmed he was not the father of the child.
The applicant stated that he arranged for a meeting with the sponsor. He stated in the application for the intervention order that she told him to get out of her house during that meeting. The applicant stated that he remained living at the home and the sponsor moved to a motel, which is recorded on the application for the intervention order. The applicant stated that the sponsor threatened him that she and the father of the child would ruin his life.
The applicant also stated in the application for the intervention order made [in] June 2015, and that the sponsor has a problem with drugs and alcohol and in the past had attempted to assault him and caused holes in the wall of the family home which had subsequently caused him to have trouble sleeping. The applicant had declared in his statutory declaration dated 26 July 2015 (form 1410) that he has been physically and mentally tortured by the sponsor, who has cheated him and given birth to the child of a stranger and broken the matrimonial relationship after physically assaulting him. In this statutory declaration the applicant also declares that the sponsor has threatened to harm him with the help of her boyfriend and friends if he tries to interfere with her relationship. The applicant said that when the sponsor came to her home [in] June 2015 to discuss the issues she got aggressive and hit him and pushed him, but he refused to get out of the house. The applicant declared that the sponsor’s boyfriend’s name is [Mr A].
The applicant was asked by the Tribunal in the hearing about the reference to the previous physical assaults and damage to the walls which the applicant had referred to in these written documents. The applicant stated that his relationship with the sponsor was amicable until he found out that he was not the father of the child. The applicant and the representative confirmed that the claimed family violence occurred after the applicant received the written notification that he was not the father of the child. The applicant and his representative were clear in their respective evidence and submissions in the hearing that the relationship prior to that had not involved family violence. The Tribunal notes that other written information provided by the applicant indicates that the relationship between the applicant and the sponsor had deteriorated over time.
The applicant stated that the relationship between himself and the sponsor was very affectionate and loving. The applicant stated they had a very affectionate and active sex life. The applicant stated he lived with the sponsor and knew she loved him deeply. The applicant stated that when the sponsor was in Perth she would video call him and the child. The applicant stated that the sponsor was staying with her sister in Perth, although he never met the sponsor’s sister. The applicant stated that her brother [named] lived with them for a period of time. The applicant stated that he and the sponsor would go to the Sikh temple in [Suburb 2] together and also to a Hindu temple. He stated they had meals together and watched movies together. The applicant stated that in his oral evidence that he did not think the sponsor was in an ongoing relationship with [Mr A] during the time the sponsor resided with him as his wife because their own relationship was so loving. In answer to a question from the Tribunal, the applicant could not explain the inconsistency between why he did not think the sponsor had been in a relationship with [Mr A] when she was in a relationship with him, but also stated the sponsor had been in a sexual relationship with this person [Mr A] at the start of the relationship with the applicant when the child was conceived and was in a relationship with [Mr A] who was the father of the child at the time of the claimed family violence, and whom the applicant referred to as the sponsor’s “boyfriend” in his statutory declaration at the time the relationship between the applicant and the sponsor ceased. The Tribunal discussed with the applicant that the evidence of the applicant indicated that the sponsor and [Mr A] may have been in an ongoing committed relationship during the time of the relationship between the applicant and the sponsor. The applicant stated this could not be possible because of the ongoing loving and sexual relationship he had with the sponsor.
In the applicant’s submissions to the Department dated 24 June 2015 the applicant stated that his wife (the sponsor) disclosed that she has a boyfriend name[ly] [Mr A] who does not like her matrimonial relationship with the applicant. The applicant states that the sponsor is cohabitating with [Mr A]. The applicant stated that his mother-in-law had told him that [Mr A] was occasionally meeting the sponsor and wanting her to divorce the applicant. On the last page of this statement the applicant states “It is pertinent to mention here that my marriage with [the sponsor] was genuine and continuous, except due to the fact that my wife was living in adultery and I was not aware of it. The matter resulted in family violence that resulted in the breakdown of our relationship.”
The Tribunal asked the sponsor in the hearing to describe the relationship and the social activities that he could remember before the relationship ceased. The Tribunal is cognisant that it is many years since the applicant and the sponsor were in a relationship. The evidence of the applicant is that the child was born in [specified year], and the relationship ceased in May 2015. The oral evidence of the applicant was that he and the sponsor went to a shopping centre together, to temples together, had dinner and lunch together and watched movies together. The applicant also gave evidence of cleaning the house, cooking food that was too spicy, and an accident with the lawnmower that cut the sponsor’s foot. The Tribunal discussed with the applicant that he did not give any evidence of life with the sponsor and a newborn baby or toddler. The Tribunal discussed with the applicant that even though it was some time ago he gave no evidence of any household chores that involved caring for the child, no social activities that involved the child, and no recollections of the impact of the baby on their lives or their relationship. The applicant responded by stating he remembered taking the child in the pram, and going to the pool and sleeping with the baby. The applicant stated that he had pictures of these activities. The Tribunal discussed with the applicant that it had some concerns that the applicant had not remembered his relationship with the sponsor, the majority of which according to his evidence had been life with a baby or small child, as including a new baby in the household. The evidence of the applicant indicates the possibility that the sponsor (with the child) spent a significant amount of time not residing with the applicant, and perhaps residing with her other partner, [Mr A].

The Tribunal has considered all the evidence before it. The Tribunal is satisfied that the applicant and sponsor were married in a married relationship that is valid for the purposes of the Act.
The Tribunal is satisfied that the applicant and the sponsor did not jointly own real estate or other major assets. The Tribunal is satisfied that the applicant had a vehicle in his own name. The Tribunal is satisfied that the applicant and the sponsor had joint liabilities, including rent commitments and utility commitments. The Tribunal is satisfied that the parties had a joint bank account, but the statements provided did not demonstrate the parties had pooled their financial resources. The Tribunal accepts the evidence of the applicant that he did not have knowledge of the sponsor’s Centrelink income or status. The Tribunal accepts the evidence of the applicant that he was the sole breadwinner, and was responsible for paying all the bills. There is no evidence before the tribunal, that one party in the relationship owes any legal obligation in respect of the other. The Tribunal accepts the evidence that the applicant was responsible for the payment of the day-to-day household expenses as he was the only person working in the relationship and had no knowledge of the sponsor’s Centrelink income. On this basis the Tribunal accepts the applicant and sponsor shared the day-to-day household expenses.
The Tribunal is satisfied that the applicant and the sponsor had joint responsibility for the care and support of the [Child A]. The Tribunal is satisfied that the parties resided initially at the property in [Suburb 2] where the applicant had previously resided, and then at a jointly leased home in [Suburb 1] from 22 March 2013, prior to the sponsor leaving this property in May 2015. The Tribunal notes there have been submissions in relation to the sharing of housework. The Tribunal accepts that at the time the [Child A] was taken into care by the Department of Human Services, the house was recorded as being too filthy for the child to remain there. The Tribunal accepts the applicant and sponsor shared cooking and some cleaning responsibilities whilst living at the same address.
The Tribunal is satisfied based on the statutory declarations and affidavits provided that the applicant and the sponsor represented themselves to the family of the applicant and some friends as being married to each other. The Tribunal is satisfied that the opinion of the friends and acquaintances, including the two neighbours, of the relationship is that they were genuinely married, and seemed a happily married and supportive couple. The Tribunal is satisfied that the parties undertook joint social activities based around shopping and meals together.
The Tribunal is satisfied that the applicant and sponsor resided at the rental addresses together as a married couple as they claimed. The Tribunal is satisfied that the parties lodged the application for the visa on 12 March 2013, a week after their marriage [in] March 2013. The Tribunal is satisfied based on the evidence of the applicant’s landlord dated 11 March 2013 that the applicant and the sponsor had lived together at his home for four weeks at that time. The Tribunal is satisfied that the parties resided together at their jointly leased rental property in [Suburb 1] from 22 March 2015 until the relationship broke down, when the applicant was advised that the [Child A] was not the biological child of the applicant, which occurred in May 2015. The Tribunal is therefore satisfied that the parties resided together for a period of 27 months. The Tribunal has considered the applicant’s evidence that the sponsor developed an alcohol and drug problem, which would have made the relationship increasingly difficult. The Tribunal accepts that the applicant continued to work on a full-time basis, but agreed to continue to care for [Child A] outside his employment commitments when the sponsor travelled to Perth. The Tribunal is satisfied that the parties provided some companionship and emotional support during their relationship. The Tribunal accepts that the parties are married, resided together, and claimed parentage of the [Child A], at least for a period of time which indicates to the Tribunal that the applicant considered the relationship long-term.
The Tribunal has carefully considered all the evidence before it, and has noted that the applicant accepts that the sponsor had a “boyfriend”, who was the father of her child, conceived prior to the marriage between the applicant and the sponsor, and continued to be the boyfriend and recognised as the father of the child at the time the relationship between the applicant and the sponsor broke down. The Tribunal has considered that the sponsor regularly had trips interstate, and developed an alcohol and drug problem after the birth of the child, and therefore accepts that the applicant was very tolerant of the sponsor’s behaviour during the relationship. The Tribunal has considered that the father of the child contacted the Department, in December 2014 claiming he was the father of the child and was in an ongoing relationship with the sponsor at that time. The evidence is that the sponsor was in a sexual relationship with the father of the child, [Mr A], at the time the child was conceived, in [year], at the time the relationship between the sponsor and the applicant had commenced, the relationship between the sponsor and [Mr A] continued at the time the child was born, at the time [Mr A] made the allegation to the Department, and at the time the relationship between the applicant and the sponsor broke down. The Tribunal considers this was not an act of infidelity or a casual affair between the sponsor and [Mr A]. The Tribunal is satisfied the evidence is that the relationship was an ongoing relationship between the sponsor and [Mr A] that existed at least between the years 2012 and 2015.
The Tribunal acknowledges the applicant was very upset to find out he was not the biological father of the child. The Tribunal is satisfied that the sponsor did not dispute that the applicant was not the father of the child. The Tribunal is satisfied that the applicant accepted he was not biological father of the child. The Tribunal is satisfied that this is the reason the relationship between the applicant and the sponsor broke down. The Tribunal is satisfied that the applicant did not attempt to see the child after the child was taken into care by the Department of Human Services. The Tribunal is satisfied that the evidence before it is quite clear that the applicant accepted he was not the father of the child, and did not want to continue the relationship with the sponsor. The Tribunal is satisfied based on the evidence of the applicant that the sponsor also did not want to continue the relationship with the applicant, but was in a relationship with [Mr A] at that time. The Tribunal is satisfied based on the evidence of the applicant that at the time the relationship between the applicant and the sponsor ceased, the sponsor had another partner, and that partner was the father of the [Child A]. The Tribunal also accepts that the applicant was devastated by the breakdown of the relationship, and the reasons for the breakdown of the relationship.
The Tribunal is satisfied that the applicant applied for an intervention order because he was threatened by the sponsor, and accepted that the sponsor with her boyfriend did not want the applicant to interfere in her relationship with her ongoing partner. The Tribunal is satisfied that the applicant was granted a final intervention order by the Magistrates Court.
The Tribunal is satisfied that the applicant considered [Mr A] variously to be the boyfriend of the sponsor, the adulterous partner of the sponsor, and the father of the sponsor’s child, during the time of the applicant’s relationship and marriage to the sponsor. It is not consistent or compatible with a married relationship for one partner to have a longstanding relationship with another partner and have a child with that other partner. It is not consistent or compatible with a married relationship for one partner to be in another relationship before, during and after the married relationship.
In the circumstances of this review, the Tribunal is not satisfied that the evidence of the applicant’s relationship with the sponsor is evidence of a relationship of a mutual commitment to a shared life as a married couple to the exclusion of all others.
As the applicant was not in a spousal relationship before the relationship ceased, the Tribunal will not proceed to make findings in relation to the claim the applicant experienced relevant family violence.
Conclusion on time of decision cl.801.221 criteria
The Tribunal is satisfied that the sponsor had an ongoing and committed relationship with [Mr A] that is not consistent with a spousal relationship with the applicant, and that this ongoing and committed relationship with [Mr A] existed during the relationship between the applicant and the sponsor. The Tribunal is therefore not satisfied that the applicant and the sponsor had a mutual commitment to a shared life as a married couple to the exclusion of all others. The Tribunal is not satisfied that the relationship between the applicant and the sponsor meets the requirements of s.5F(2)(b).
Accordingly, the Tribunal is not satisfied that the applicant and the sponsor were in a spouse relationship within the meaning of s.5F(2) of the Act. The Tribunal is not satisfied that the applicant would meet the requirements of cl.801.211(2) or (2A) - namely that the applicant is the spouse or de facto partner of the sponsoring partner - except that the relationship between the applicant and the sponsoring partner has ceased. For these reasons the Tribunal is not satisfied that the applicant meets the requirements of cl.801.221(6)(b) at the time of decision.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Date(s) of hearing:  17 February 2025
Representative for the Applicant:           Mr Rajiv Dalal
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the ART during the review of a reviewable migration decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s 5      Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…