2440308 (Migration) - [2025] ARTA 518

2440308 (MIGRATION) [2025] ARTA 518 (24 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2440308

Tribunal:Senior Member A Murphy
Place:Melbourne
Date: 24 March 2025
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 24 March 2025 at 10:41am
CATCHWORDS
MIGRATION – Cancellation – Subclass 801 (Spouse) visa – incorrect answers were given or provided – sponsor failed to inform the Department of the changes in her circumstances – sponsor had a long history of family violence – relationship with the sponsor was ongoing until December 2022 – applicant did not fail to notify the Department of a relevant change to her circumstances – there was no non-compliance by the applicant in the way described in the s 107 notice – decision under review set aside
LEGISLATION
Migration Act 1958, ss 104, 107,109, 359, 375
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 for Immigration and Multicultural Affairs on 21 October 2024 to cancel the applicant’s Subclass 801 Partner (Residence) (Class BS) visa under s 109 of the Migration Act 1958 (the Act).
The applicant appeared before the Tribunal on 18 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A], Mr [B], Ms [C], Ms [D] and Ms [E]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages, although the applicant elected not to use the services of the interpreter.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
The applicant’s migration history
The applicant first arrived in Australia on [date] January 2019, departing and re-entering on several occasions during 2019 each time as the holder of a visitor visa. She applied for a combined partner (subclass 820/subclass 801) visa on 31 January 2020 and she was granted the Partner (Temporary) (subclass 820) visa on 11 June 2021.
On 8 February 2022, the applicant completed the online form ‘Partner visa application – information for permanent stage processing’, in support of the second stage of the Partner (Permanent) (subclass 801) visa. In that form she stated that she was still in a genuine and continuing relationship with the sponsor and she was granted the permanent visa on 14 September 2022.
The Department subsequently became aware of information indicating that the applicant’s de facto relationship with her sponsor had ended five months prior to the grant of the permanent partner visa. As a consequence it issued her with a Notice of Intention to Consider Cancellation of the permanent partner visa granted to her on 14 September 2022 (the s 107 notice).
The s 375A certificate
The Tribunal has before it the Departmental file relating to the visa cancellation. The delegate has placed restrictions on some of the material given to the Tribunal by the Department by issuing a certificate under s 375A of the Act. That certificate is dated 13 November 2024 and relates to a number of documents held on the Departmental file. It states that disclosure of the information subject to the certificate would be contrary to the public interest because the information was provided in confidence and the provider of that information has not consented to the disclosure of the information to the review applicant.
Where a valid certificate is issued under s 375A, the Tribunal must do all that is necessary to ensure the document or information is not disclosed to any person other than to a member of the Tribunal. In this case the Tribunal considers the s 375A certificate to be invalid in relation to the majority of the information and documents covered by that certificate. This is because the departmental file indicates that the primary informant did in fact provide consent for the information to be disclosed to the applicant, contrary to the statement on the certificate.
By email dated 17 May 2024, the Department wrote to that informant advising that if the Department were to pursue the issues raised by the information provided, it would need to be presented to the applicant for comment and response. It noted that while the Department would not name the informant, the nature of the information may allow the applicant to identify the informant regardless and the department sought the informant’s written consent for this to occur. On the same date the informant provided that written consent. In so far as the certificate relates to information provided by that informant, the Tribunal finds it to be invalid.
The Tribunal notes however that not all of the certificated information was provided by that informant and the Tribunal considers that the certificate is valid in relation to that other information.
The Tribunal is not exempt from providing an applicant with procedural fairness in respect of the certificated information and a valid certificate does not override the obligation to provide particulars of information under s 359A(1). The Australian courts have held that the provision of particulars under s 359A need not reveal the information subject to the s 375A certificate, and need not involve access to any actual document, rather the Tribunal must consider how to provide sufficient particulars of the information to the applicant to comply with its s 359A obligation.[1]
[1] Burton v MIMIA (2005) 149 FCR 20 at [40]–[42]
In view of the Tribunal’s obligations under section 359A, the Tribunal provided the applicant with some further details of the certificated information at hearing as follows:
·The Department has information indicating that after the applicant moved out on 20 April 2022, she and the sponsor did not combine their finances anymore or resume a physical relationship, that they were rarely in contact after April 2022 and met perhaps four times in person and the applicant never went back to the sponsors home;
·The Department has information indicating that the applicant’s real name is [Alias 1].
At hearing the applicant denied the allegations and presented contradicting evidence. The Tribunal’s findings about the applicant’s relationship with the sponsor are set out in detail below. As is apparent from those findings, the Tribunal does not consider the certificated information to be accurate or credible insofar as it relates to the applicant’s relationship with the sponsor and the Tribunal is satisfied that at least some of the information about the circumstances of the relationship is demonstrably untrue. For the reasons that follow, the Tribunal is satisfied that the applicant’s relationship with the sponsor was genuine and continuing until December 2022.
The applicant denied providing incorrect information about her identity to the Department, giving evidence that her birth name is as presented to the Department and that [Alias 1] is her sister in [Country 1]. She said that she celebrated her birthday at the end of each year when her family is together because her older brother died on her birth date and she and her family do not wish to celebrate that date.
The Tribunal considers that the allegations about the applicant’s identity are unsubstantiated and the available material does not satisfy the Tribunal that the applicant’s real name is [Alias 1] as alleged.
The s 107 notice
The s 107 notice was first issued on 17 June 2024 and then reissued on 18 September 2024. In response to the applicant’s query about the difference between the two notices, she was advised that the first notice incorrectly cited regulation 820.221, when it should have cited regulation 801.221. The applicant was advised that as a result of this error, the notice was reissued. For these reasons the Tribunal treats the section 107 notice dated 18 September 2024 as the relevant notice preceding the cancellation of the applicant’s visa.
The notice sets out the relevant information provided in the partner visa application and the applicable statutory provisions. In particular the notice sets out that on 8 February 2022 the applicant completed the online form ‘Partner visa application - information for permanent stage processing’ in which the applicant stated she was in a genuine and continuing relationship with the sponsor and that they had a mutual commitment to a shared life together to the exclusion of all the others. The notice sets out that the Department has received information indicating that the applicant was no longer in a genuine and continuing relationship with the sponsor prior to the grant of the permanent visa, because the Department had been advised that the applicant moved out of her former sponsor’s residence on 20 April 2022 and that her de facto relationship with the sponsor ended on that date.
The notice records that the applicant had not complied with section 104 of the Act, because her separation from the sponsor on 20 April 2022 was a change in the applicant’s circumstances that rendered her previous answer in respect of her relationship status (being that she was in a continuing de facto relationship with the sponsor) incorrect in the new circumstances.
The notice set out that in order to be eligible for the grant of the permanent visa, the applicant needed to meet regulation 801.221(2)(c) by continuing to be the spouse or de facto partner of the sponsor. It stated that as she had ceased living with the sponsor on 20 April 2022 and her relationship with him ended on that date, she ceased being his de facto partner from that date and was not in a relationship with him at the date the visa was granted. The notice set out that by failing to inform the Department of the change in her circumstances in relation to her relationship status, the applicant was granted the Partner (Permanent) (subclass 801) visa to which she was not entitled.
The notice set out that if the applicant did not comply with section 104 of the Act, her visa may be cancelled under section 109 of the Act. The notice invited her to comment on the possible non-compliance with section 104 of the Act and to show cause why her visa should not be cancelled.
No issue has been raised as to the validity of the s 107 notice issued on 18 September 2024. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107. The Tribunal is satisfied that the notice included particulars of the possible non-compliance and complied with the statutory requirements set out in s 107.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 104, which requires an applicant to notify the Department of any relevant changes in their circumstances.
As noted above, the notice set out that the applicant had failed to advise the Department that her de facto relationship with the sponsor had ended on 20 April 2022 when she moved out of his residence. The notice states that the applicant had not complied with section 104 of the Act, because her separation from the sponsor on 20 April 2022 was a change in circumstances that rendered her previous answer in respect of her relationship status (being that she was in a continuing de facto relationship with the sponsor) incorrect in the new circumstances.
In her responses to the Department dated 20 June 2024 and 22 September 2024, the applicant maintained that she was in a genuine and continuing de facto relationship with her sponsor at the time the visa was granted and up until 28 December 2022. She stated that she and the sponsor had relationship issues that resulted in her staying with friends from time to time, because the sponsor was frequently violent and threatening. She stated that in April 2022 the sponsor put all her personal belongings outside the house, but the relationship continued because the sponsor promised he would undertake anger management counselling to help her feel safe. She stated that the sponsor had a long history of family violence and was ordered by a court to undertake a men’s behavioural change program to address his violence in his previous marriage, but he never attended. She maintained they continued their relationship while trying to work out their issues and that she would stay at the house every weekend and some other times to continue her relationship with the sponsor and his children.
The applicant maintained that their de facto relationship continued until December 2022, when he told her he would no longer see her and closed their joint bank account. She stated that the sponsor disconnected her phone in June 2022 and sold it, as a result of which she has lost access to other text messages which would have established their relationship at that time. She provided a number of screenshots from messages from her current mobile in support of her contention the relationship was ongoing after April 2022. She stated she entered the relationship intending it to be forever and worked very hard to make it work even though at times it was challenging. She said she looked after the sponsor’s children frequently and had a very good relationship with them. She has made her life in Australia, has full-time employment and wishes to remain in Australia. She believes that the sponsor has remarried and seeks to have her visa revoked so that his new wife can obtain a visa to remain in Australia. She does not believe there is any reason why her visa should be cancelled.
Similarly before the Tribunal the applicant maintained that her relationship with the sponsor was ongoing until December 2022 and that she had not failed to comply with the obligations under s 104 of the Act. She maintained the relationship between herself and the sponsor was genuine, but that she had been the victim of family violence perpetrated upon her by the sponsor from the early stages of the relationship. As a result of this family violence she had been repeatedly locked out of the house they shared in [Suburb 1], often overnight and on occasion for longer periods. On at least three occasions she was forced into temporary accommodation after being denied access to her home and on each occasion the sponsor eventually apologised and sought her forgiveness and the relationship resumed.
The Tribunal notes that there is no dispute that the relationship between the applicant and the sponsor was a genuine spousal relationship, nor that it ended in 2022. Rather at issue is when that relationship ended and in particular whether it ended before or after the visa was granted on 14 September 2022.
The Tribunal considers the applicant to be a reliable and credible witness as to the circumstances of her relationship with the sponsor. Her evidence is corroborated by the evidence of her witnesses and a significant amount of documentary evidence. For the following reasons the Tribunal accepts that the relationship between the applicant and the sponsor was genuine, that it was characterised by family violence perpetrated by the sponsor upon the applicant and that it continued until December 2022 when it was ended unilaterally by the sponsor.
The relationship between the applicant and the sponsor
The applicant and sponsor met on an online dating site in 2018. At the time the applicant, a Filipino citizen, was living in [Country 1] and the sponsor resided in Australia. After exchanging messages for several months, they decided to meet in person in the Philippines in September 2018. They spent two weeks together during which time they discussed their hopes for the future and their children (the applicant has one son who lives with her mother in the Philippines while the sponsor has four children from his three former marriages).
At the end of their two weeks together they wished to continue their relationship, but they were not yet ready to make the kind of commitment required to lodge a partner visa application. They agreed that the applicant would apply for a tourist visa to enter Australia and she first entered Australia as the holder of that visa on [date] January 2019. When she arrived at the airport she was met by the sponsor, his two youngest children from his third marriage (who were at that time aged about [age] and [age]) and the sponsor’s parents. The applicant moved into the sponsor’s house in [Suburb 1], Victoria where his two youngest children [Miss F] and [Master G] stayed with them regularly on weekends. The applicant developed a close relationship with the sponsor’s parents and things were very good for a while. She felt she had got everything she wanted with a loving partner and family.
However the applicant discovered on her arrival that the sponsor had quit his job sometime prior to her arrival, that he had a lot of unpaid bills and that he was locked in a fierce dispute with his third ex-wife about their property settlement, in the context of their recent separation. The applicant started sourcing free furniture on [social media], cleaning it up and reselling it at a profit. She also assisted the sponsor to build a [business], advertising the business on [social media], finding new clients and sometimes helping with [the work]. Their financial situation gradually improved but the sponsor’s fighting with his ex-wife continued.
On 31 December 2019 the sponsor assaulted the applicant for the first time after she reorganised the rumpus room while he was out. She thought he would be happy with the work she had done but when she showed him he swore at her, hit her and locked her out of the house. It was New Year’s Eve and she was scared so she walked down to a nearby jetty to wait. He called her repeatedly on the phone and she saw him driving around looking for her. When he found her he ordered her into the car where he told her that he didn’t mean to do it, he was just very angry because nobody had touched his stuff for many years. She thought maybe it was her fault because she didn’t ask his permission and she returned with him to the house.
Approximately a month later in the context of another fight with his ex-wife he became very angry and shifted all of the applicant’s possessions out to the front verge. This was the commencement of a pattern in which he would frequently become enraged with the applicant for her perceived transgressions, including refusing him sex or working at a time that wasn’t convenient to him or being tired after work. Sometimes he would force her to have sex and other times he would slam doors or throw furniture. He would move all her possessions out onto the front verge and lock her out of the house for several hours and occasionally overnight before apologising and begging her to return. This was very frightening for the applicant who lived some distance from her limited social network in Australia. She did not have a driver’s licence or anywhere to go and so she had to remain on the streets until he was ready to let her back in. The applicant described this pattern of behaviour as quickly becoming normalised in their relationship, stating that he normally let her back in after a few hours.

The applicant found work [in] a [workplace] some distance from their home. As she did not have a driver’s licence she relied on the sponsor to drive her to work and pick her up. Her wages were used to pay the expenses of the household. The sponsor would frequently fail to pick her up and refuse to take her calls, leaving her stranded in an area with no public transport at night. She often had to ring friends or colleagues for help to get home.
The applicant’s friends and colleagues repeatedly advised her to end the relationship and call the police. She did not do so because she loved the sponsor and hoped he would change, because she cared a great deal for his elderly parents and his young children and because the sponsor was already the subject of a family violence order protecting his third ex-wife and she loved him and did not want to cause him more trouble.
In September 2021 they had an argument after she told him she was too tired to have sex with him, having worked that day and then cared for the children in the evening. The next day when she returned from work she found that her house key was not in her handbag and when she checked the spot in which they hid a spare house key she found it gone. She tried to call him for several hours but he didn’t answer and so she knew he was very angry with her.
She called his parents, who treated her like their own daughter and to whom she was close. While she had never discussed her problems with his parents before, she felt forced to tell them that the applicant had locked her out of the house and she was unable to get in. When his parents arrived at the house the sponsor was threatening and abusive to both the applicant and his father. When his parents left the applicant thought things would be better but the sponsor became more angry and threatening, asking how she dared discuss their problems with his parents. He ordered out of the house telling her he didn’t want to see her again and threw her stuff out after her. She waited a few hours thinking that he might calm down and let her back in before she called a friend who picked her up. She ended up staying with friends in [Suburb 2] for two months before returning to the sponsor’s home in about November 2021, after he apologised repeatedly, sent her flowers and begged her to return.
When she returned to the sponsor’s home in about November 2021 things were again good for a while. The sponsor was very loving, they went on long drives with the children at weekends and planned a holiday after the property settlement with his third ex-wife was finalised. In January 2022 they had a small fight after which the sponsor again threw the applicant’s property outside, but the applicant decided not to focus on this as she considered that things were generally much better.
In April 2022, the sponsor was driving the applicant to work with the children in the car. He asked her to look after the children and when she said that she could not because she was going to work, he told her to take the children to work with her. She told him she was not allowed to do so and he became very angry. He dropped her at work but failed to collect her after her shift and so she asked a workmate to take her home. She kept calling the sponsor but he didn’t answer and so she went to the RSL near their home and waited there for several hours.
Eventually the sponsor sent her a message saying she should come home because dinner was ready and she returned to their house. When she entered the house he was threatening and abusive and he grabbed her in front of the children and dragged her to the bedroom. In the bedroom he threw her belongings at her face, using racist and abusive language. She was terrified and the children were crying. He forced her out of the house and ordered her to leave. She told him that it was the middle of the night and she had nowhere to go but he would not let her back in. She called most of her friends but they lived too far away to help her. Eventually one of her friends from work picked her up and took her to his parent’s house in [Town 1] where she stayed for three days.
The following day she returned to the sponsor’s house to find all of her possessions outside on the street. He told her that she had 15 minutes to pick up her stuff and leave. She stayed a couple more nights at her friend’s parents’ house in [Town 1] before renting a room in [Suburb 2]. Between May and July 2022 sponsor contacted her repeatedly, apologising and begging her to return. They met several times to discuss their relationship, agreeing that they would continue dating and working on their relationship but the applicant would continue to spend most of her time in [Suburb 2] where she was undertaking a driving course. She said that she would return to live with the sponsor when he had completed the anger management course.
By July 2022 they had fully reconciled and resumed their relationship, but the applicant continued to spend most weeks in [Suburb 2] where she was undertaking driving lessons and waiting for the applicant to complete the anger management course. The sponsor picked her up and took her to his house in [Suburb 1] on weekends and sometimes during the week when she was not working when they continued to present as a family to their friends and the sponsor’s children. When her permanent visa was granted in September 2022 the sponsor was insistent that she return to live in their [Suburb 1] home. When she asked him when he was going to undertake the anger management course he was dismissive and refused, asking why he would do that.
Between September and November 2022 she continued to spend weekends with the sponsor and his children in [Suburb 1] and he continued to pressure her to return to live with him full-time. In November 2022 she noticed that his messages became less frequent and he made excuses not to collect her every weekend. In December 2022 he sent her a message saying he did not wish to see her again and he closed their joint bank account. Her friend told her that she had seen on [social media] that he had travelled to the Philippines and met another woman and she understands that he married this person in April 2023 with the intention of sponsoring her to Australia. She has not had any contact with the sponsor since he ended their relationship in December 2022.
The Tribunal heard corroborative evidence from [Ms A] and her husband [Mr B], [Ms E], [Ms D] and the sponsor’s third ex-wife Ms [C]. [Ms C] gave evidence that she was the ex-wife of sponsor and the mother of his two youngest children, [Miss F] and [Master G]. She said she came to know the applicant because the applicant frequently looked after [Miss F] and [Master G] when they were in the care of their father and she was very kind to them. She told the Tribunal that the applicant had organised a birthday party for her son and that she was a very kind woman.
[Ms C] gave oral evidence to the effect that she had also been sponsored to Australia on a partner visa by the sponsor and became distressed when describing her own experience of family violence perpetrated upon her by the sponsor. She said her marriage ended shortly after [Miss F]’s first birthday when the sponsor almost killed her and the police became involved. She said that she knew nothing about the sponsor’s first marriage but that she had spoken to the sponsor’s second wife [who] had told her that she too experienced family violence during her marriage to the sponsor. [The second wife] had [children] with the sponsor, but those children have no contact with the sponsor.
[Ms C] gave evidence that she started messaging the applicant after [Miss F] told her that the sponsor was hurting the applicant and locking her in her room. [Ms C] warned the applicant that she had to leave for her own safety. A family violence intervention order dated 6 May 2019 was produced to the Tribunal naming the sponsor as the perpetrator and [Ms C] and [Miss F] and [Master G] as the protected persons. That order extends an earlier interim order made on 14 January 2019 and states that it will last until further order. [Ms C] gave evidence that it remains in place.
Ms [A] also became distressed during her evidence. She told the Tribunal that she and her husband were friends with the applicant and the sponsor and that she had seen the sponsor sometimes be sweet to the applicant and other times no good. She said she had received late-night calls from the applicant who was crying because she was locked out of the house with nowhere to go and the sponsor had thrown her things outside. Mrs [A] could not herself pick up the sponsor because she did not have a driver’s licence, but advised her to call the police. Mr [B] gave evidence that he was not aware of any difficulties in the relationship between the sponsor and the applicant but that he had been with them at a dinner in a [restaurant] on Father’s Day in September 2022 and everything seemed fine. He said that he assumed the relationship between them was amicable.
Ms [D] gave evidence that she met the sponsor in 2021 through a mutual friend and they often caught up at the sponsor’s house in [Suburb 1], sometimes in the presence of the sponsor. She said had first she observed them to be like a normal couple in a loving relationship, but that in April 2022 this applicant had messaged her at 11pm asking if she could stay with her. She wasn’t able to help the applicant who found somewhere else to stay and in the second half of 2022 she continued to catch up with the applicant at the sponsor’s house in [Suburb 1] where the applicant was staying on weekends. She said that in August 2022 she cooked some sticky rice in banana leaves and offered some to the applicant who came to her house with the sponsor and picked it up. In October 2022 the sponsor had turned up to Ms [D’s] workplace and asked her how she thought his relationship with the applicant was going and when she would move back to [Suburb 1]. She advised the sponsor to give it some time.
Ms [E] gave evidence that she had known the applicant for six years and that they were close friends. She had seen the relationship between the sponsor and the applicant be good at times but she also knew that he was sometimes not a good partner to her. She gave evidence that the applicant had frequently called their group on a group chat crying because he had kicked her out of the house in the middle of the night. The applicant had asked people in that group chat to pick her up because she had nowhere to go and people helped when they could. She gave evidence that the last time she saw the applicant and sponsor together was on Father’s Day in September 2022 when they met in a group at a [restaurant]. At that dinner the sponsor presented the applicant with a bunch of flowers and declared that he loved her in front of the group.
The relationship and the period between April 2022 and December 2022
In considering the nature of the relationship between the applicant and the sponsor between April 2022 and December 2022 the Tribunal has considered the financial aspects of their relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment between the applicant and the sponsor.
In relation to the financial aspects of the relationship, the Tribunal notes that the applicant and the sponsor continued to operate a joint bank account until it was closed on 28 December 2022 as evidenced by the bank statements provided to the Department and the Tribunal. Those bank statements indicate that over the course of the relationship, the applicant’s salary was paid into the account but no regular deposits or earnings were paid in by the sponsor. Overall the bank statements show that for every deposit made into the account, an equal or similar amount was almost immediately withdrawn. The applicant gave evidence that the sponsor always operated his own bank account during the course of their relationship and she opened her own account after she had lived in Australia for some time.
The Tribunal accepts the applicant’s evidence that the sponsor did not make regular deposits into that account except when a bill was due and that she was largely unaware of his financial affairs during the course of the relationship. Monies were withdrawn from the account in order to pay bills and meet the expenses of the household. There was no change to this pattern during the period between April and December 2022 and the applicant’s wages continue to be paid into the joint account and then withdrawn.
On 22 August 2022 the bank statements confirm that $3000 was deposited into the joint account and that money was immediately withdrawn. The applicant gave evidence that she deposited the $3000 as her contribution to the cost of a car that she purchased jointly with the sponsor on that date, with the sponsor contributing $2500. The sponsor withdrew the money she had deposited and added his own. Text messages between the applicant and the seller of that vehicle on [social media] confirm the purchase of the car and the applicant’s request that her name be used in the transfer documents. Despite this the sponsor registered the vehicle in his own name.
In considering the financial aspects of the parties relationship as a whole, the Tribunal considers that the available evidence indicates that the financial arrangements that applied during the period April to December 2022 were substantially the same as those that had applied during the first few years of the relationship. While the applicant continued to deposit all her earnings into the joint account, the sponsor kept his income separate. The Tribunal accepts that they jointly purchased the vehicle in August 2022 and that it was a significant asset.
In considering the nature of the household during the period April to December 2022, it is clear that there was a significant change because the applicant resided primarily in a rented room in [Suburb 2] and returned to the home in [Suburb 1] on weekends and occasionally during the week when she wasn’t working. The Tribunal accepts that the reasons for this were that the applicant had become increasingly afraid for her safety and that while she wanted to return to live in the [Suburb 1] property, she felt unsafe doing so and was waiting for the sponsor to undertake an anger management course before giving up her rented accommodation.
Both the applicant and Ms [D]’s gave evidence about the difficulty of finding accommodation [in the Suburb 1 area] and the applicant’s very real fear of giving up her rented room and then finding herself with nowhere to go again.
The Tribunal further notes that this was not the first time that the applicant had been forced to seek alternative accommodation after being locked out of the [Suburb 1] property by the sponsor, rather a similar situation had occurred for several days in 2019 and two months at the end of 2021. The Tribunal accepts that the applicant did not intend to end the relationship when she rented the room in [Suburb 2], rather she was trying to ensure she had safe accommodation until the sponsor completed an anger management course and she could safely return home.
In considering the social aspects of the relationship the Tribunal is satisfied that the applicant and the sponsor continued to present themselves to their friends and the sponsor’s children has a couple during the second half of 2022. In particular the Tribunal accepts that the applicant continued to catch up with Ms [D] at the [Suburb 1] property and that on some of those occasions the sponsor was present. The Tribunal accepts that the applicant and the sponsor drove together to Ms [D] ’s property [in] August 2022 to pick up the sticky rice cooked by Ms [D] and that she believed them to be a couple at this time.
The Tribunal also accepts that on 3 September 2022 the applicant and the sponsor went out to dinner at a [restaurant] with four other couples and the sponsor gave flowers to the applicant and declared his love for her in front of their friends. In making that assessment the Tribunal has had regard to the oral evidence of several people present at that dinner including [Ms A] and [Mr B] and [Ms E]. [social media] photos show pictures of the applicant and the sponsor with four other couples including [Ms A] and [Mr B]. Other persons present at that dinner were available to speak to the Tribunal by telephone about the events of that evening but the Tribunal did not consider it necessary to contact them.
In considering the nature of the commitment between the applicant and the sponsor between April and December 2022, the Tribunal has had regard to the evidence of the applicant and the witnesses to the effect that both the applicant and sponsor remained committed to the relationship and that the sponsor continued to try and persuade the applicant to return to the home in [Suburb 1]. The Tribunal accepts Ms [D]’s evidence to the effect that as late as October 2022 the sponsor told her that he was still trying to persuade the applicant to return on a permanent basis and she advised him to give it more time. The Tribunal also notes the sponsor’s declaration of love for the applicant in front of eight of their friends on 3 September 2022. The Tribunal accepts that the applicant’s friends including the witnesses who gave evidence at hearing believed her to be in a continuing her relationship with the sponsor, despite their concern about her safety in that relationship.
Overall the Tribunal considers that their financial affairs, the social aspects of their relationship and the nature of their commitment to each other indicate a mutual commitment to a shared life during the period April to December 2022. While the applicant maintained a room in rented premises in [Suburb 2] during this period, it was not the first time that had occurred during the course of the relationship and the Tribunal is satisfied that she did so out of immediate and genuine fears for her safety rather than any intention to end the relationship or to live separately and apart on a permanent basis. Rather the applicant continued to hope that the sponsor would complete the anger management course as he had promised to do so that she could return to live full time in the [Suburb 1] property. At the same time the sponsor was pressuring her to return to live with him in [Suburb 1].
For these reasons the Tribunal is satisfied that the applicant and the sponsor were in a genuine and continuing relationship until the sponsor ended that relationship in December 2022 and that they were not living separately and apart on a permanent basis despite the applicant’s temporary relocation to [Suburb 2].
In these circumstances the Tribunal finds that the applicant did not fail to notify the Department of a relevant change to her circumstances as she continued to be in a genuine ongoing spousal relationship with the sponsor. It follows that there was no non-compliance by the applicant in the way described in the s 107 notice and that the discretionary power to cancel the applicant’s visa does not arise.
CONCLUSION
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Date(s) of hearing: 18 March 2025
Representative for the Applicant: Miriam Tanag