Berliani (Migration)

Berliani (Migration) [2022] AATA 3245 (12 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Tati Berliani
Miss Amelia Lidwina
CASE NUMBER:  1905822
HOME AFFAIRS REFERENCE(S):          BCC2017/258069
MEMBER:Brygyda Maiden
DATE:12 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations;
·cl 820.221(1)(a) of Schedule 2 to the Regulations; and
·reg 203A.

Statement made on 12 July 2022 at 3:34pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – joint business commitments – payments for the secondary applicant’s education – shared household responsibilities – friends recognise the relationship – mutual emotional support – shared residence in Indonesia – decision under review remitted
LEGISLATION
Births, Deaths and Marriages Registration Act 1996 (Vic)
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.15, 2.03
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 19 January 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate found that the applicant did not meet the definition of spouse or de facto partner under s 5F or s 5CB respectively of the Act. The Tribunal notes that there was limited evidence before the delegate at the time of the decision.
On 9 June 2022 a Tribunal officer wrote to the applicants requesting information in support of their application including providing an example list (as a guide only and not definitive) of the types of evidence that the applicants may wish to provide. The applicants submitted evidence to the Tribunal on various dates following the Tribunal’s request, up to and including the day of the hearing, being 4 July 2022. The Tribunal has considered all the evidence submitted by the applicants.
Both applicants appeared before the Tribunal on 4 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kenneth Loh (the sponsor) and witnesses Cheryl McDonald and Anne Roberts (both of whom also had previously provided Form 888 statutory declarations which are considered below), Ms Karri Baker (the sponsor’s daughter) and Mr Scott Baker (the sponsor’s son-in-law).
The Tribunal has had the benefit of considerably more documentation than was presented to the delegate as well as the oral testimony of the applicants, sponsor and the witnesses. In the Tribunal’s view, the oral evidence given by the sponsor and applicant was credible, forthcoming and truthful and did not appear to be staged or rehearsed.
The applicants were not represented by a lawyer or migration agent in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Consideration of claims and evidence
The issue in the present case is whether the applicant is in a spouse or de facto relationship with the sponsor for the purposes of cl 820.211(2)(a).
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, that the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
At the time of application and the time of decision, the applicant claims that she was initially in a de facto and then in a spouse relationship with the sponsor who is an Australian citizen. A copy of the bio-pages of the sponsor’s Australian passport has been provided to the Tribunal, and the Tribunal is satisfied that the sponsor is an Australian citizen.
Were the parties in a de facto relationship at the time of application?
'De facto partner' is defined in s 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship between them is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).
In forming an opinion as to whether the parties are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A discussed later in this decision.
Are the parties in a spouse relationship at the time of this decision?
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship but not a de facto relationship. The Tribunal accepts as valid the Victorian Births, Deaths and Marriages Registration Act1996 (Vic) marriage certificate which indicates that the marriage between the parties was solemnised by the applicant and sponsor on 7 July 2017 at Geelong Law Courts, Geelong, and that the applicant and sponsor were free to marry each other. On the evidence, the Tribunal finds that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a). However, this alone does not demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing. Therefore, the Tribunal only affords this some weight.
Are the other requirements for a de facto or spouse relationship met? Consideration of reg 1.09A(3) and reg 1.15A(3) matters
In considering whether a de facto or spouse relationship exists, the Tribunal must consider all of the circumstances of the relationship including the matters in reg 1.09A(3) and reg 1.15A(3) respectively. These matters are essentially the same and deal with the financial aspects of the relationship, the nature of the household, social aspects of the relationship and the nature of the persons’ commitment to each other, and accordingly they will be discussed together.
Financial aspects of the relationship
The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other, and the basis of any sharing of day-to-day household expenses.
The Tribunal is satisfied that the parties do not hold any joint assets or liabilities together. According to oral evidence given by both parties, the house where the parties currently reside in Mystic Park is in the sponsor’s name due to the tax implications of the property also being in the applicant’s name and the applicant’s visa uncertainty. The Tribunal accepts this evidence.
Both parties gave evidence that they own a food truck business. The sponsor gave evidence that he drives from markets and other events to sell food from the food truck. The applicant submitted an updated contract of sale which details the sponsor purchasing a custom‑built food trailer totalling $28,743 inclusive of GST and a receipt from the Commonwealth Bank of Australia dated 10 February 2019 noting that a $14,371 had been paid to Mobile Food Vans which is identified as the “seller” in the contract of sale. Pursuant to the contract, a $14,371 deposit was required on the signing of the agreement. The applicant confirmed in testimony that the sponsor paid for the setup of the food truck business. The financial setup of the food truck business is consistent with the café that the sponsor purchased in Bali when he moved there to be with the applicant in 2013. The applicant gave evidence that the sponsor made the financial contributions to the café, but the applicant worked in the café as the sponsor was not allowed to work in Bali as he did not have an Indonesian working permit.
The applicant gave oral evidence that because the sponsor was not permitted to work in Bali (and his visa only allowed him to stay in Indonesia for two months at a time), he came back to Australia to work on an almond farm but was never away for more than a two‑week period. Whilst in Bali, the applicant purchased two motorbikes so that the applicant and the sponsor could explore Bali as the sponsor was not permitted to purchase property in Bali in his own name.
The applicant submitted an undated Murray Water new creditor form for Tati Berliani (sole trader) trading as Mallee Hot Bites. The bank details on the form indicate a joint Commonwealth Bank account in the name of the applicant and the sponsor (“Joint Account”).
The sponsor provided evidence that he is semi-retired with the last job he did being two years ago, and the only income that the parties derive comes from the food truck business they are both involved in. The sponsor testified that they are both involved in generating and spending the income derived from the food truck and that they have a joint bank account which is part of the business. The fact that both parties work in the food truck is supported by a Form 888 statutory declaration of Camille Cullinan dated 20 June 2022 submitted by the applicant who has known the parties for 3 years. Ms Cullinan has indicated that she regularly talks “… to them at committee meetings and throughout the year at markets and community events where they operate their takeaway food business.”
The Tribunal is satisfied that neither party owes a legal obligation to the other party.
The applicant did not provide any documentary evidence about the sharing of household expenses, and the only documentation submitted in this regard was a Commonwealth Bank of Australia merchant tax invoice in the name of “Tati Berliani Trading as Tati Be” issued on 1 January 2021 the underlying account of which appears to be the Joint Account as well as an AIG Australia Liability limited certificate of currency insuring “Tati Berliani (Trading as Mallee Hot Bites)” dated 17 February 2022. However, given that the sponsor is semi-retired and given Ms Cullinan’s evidence that the parties operate this business together, the Tribunal is satisfied that there is some evidence of sharing of expenses.
On the evidence before it, there is some evidence before the Tribunal that the parties have combined their financial affairs since 2013, first in a café in Bali and then in a food truck in Australia. In both businesses, the sponsor provided the capital outlay, but in the case of the food truck business they both work in it and it is the parties’ income source; the sponsor was not permitted to work in the café in Bali. This evidence is to a degree commensurate with a couple who are not in their first marriage, have had to derive income as a couple where in some instances one member of the couple is not permitted by the country they reside in to work, but it is commensurate of a couple being in a genuine and ongoing spousal relationship. The Tribunal gives this evidence some weight, particularly considering that the sponsor moved to Bali for a number of years to be with the applicant when their relationship commenced.
The nature of the household
The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.
Although the parties have no biological children together, the parties gave consistent evidence that there were currently no children that they were supporting, though this had not always been the case. The secondary applicant gave evidence that when the parties were living in Bali for a period of three years, the sponsor paid for her schooling and had done so since she lived with him and the applicant in Bali. On moving to Australia, the sponsor continued to pay for the secondary applicant’s schooling and then the Diploma of International Business that she completed in Preston.
The sponsor and both applicants gave evidence that they have all lived together since 2013, with the secondary applicant first in Bali, then in Geelong, with the secondary applicant only moving out when the parties moved to Mystic Park. The secondary applicant then moved in with the sponsor’s stepdaughter, Kimberley Thomas, from a previous marriage. Ms Thomas’s mother is deceased. This is confirmed by an undated written statement from Ms Thomas which was submitted by the applicant to the Tribunal (the “K Thomas Letter”). Ms Thomas confirmed that she and her husband were housing the secondary applicant “due to her need to live in Geelong for study purposes.” The secondary applicant also confirmed in oral evidence that she had lived with Ms Thomas for a year and then moved to Melbourne, obtained her diploma and is currently working at Puma full-time as an apparel supervisor in South Wharf. The secondary applicant’s work arrangements are consistent with a written but unsigned statement of Gabrielle Mahoney, Senior Store Manager of Puma Australia.
The applicant gave evidence that the parties (excluding the secondary applicant) moved to Mystic Park in 2018, and as at the time of this decision they continue to reside there together. Documentary evidence submitted by the applicant of a copy of the Gannawarra Shire Council certificate of registration of food premises granted to the applicant (the name of the business being Mallee Hot Bites) for a mobile food premises incorporating a home kitchen at the Mystic Park address dated 6 September 2021 confirms that the applicant has been living at that address since at least then. The applicant also provided a Form 888 statutory declaration of her neighbour, Colleen Mathew, of Mystic Park, dated 23 June 2022, which states that the parties have lived beside her “for four years and are a happy couple that have fitted in to our community really well. With a nice group of friends who we spent time with as well.” Ms Mathew’s statutory declaration is consistent with the timeline regarding when the parties testified that they moved to Mystic Park.
The applicant provided a Form 888 statutory declaration of Cheryl McDonald dated 25 June 2022 who has known the parties for eight years, met them in 2014 and has had continuous contact with them since then (“C McDonald Statutory Declaration”). Ms McDonald has stayed with the parties at Mystic Park at their home on numerous occasions and the parties have stayed with her. She states that she attended their wedding and birthdays and that the couple sleep in the same bed and cook and eat meals together. “They do everything together including shopping, visiting, gardening and entertaining guests.”
In terms of sharing housework, the sponsor gave oral evidence that the parties’ share the cooking though the applicant does the majority of it and when he is “allowed” in the kitchen he cooks. The applicant’s oral evidence was consistent with the sponsor’s, in terms of the applicant doing the cooking. The sponsor also gave evidence that the Mystic Park property is “big” and that there is always something to do. Although the sponsor occasionally helps with the vacuuming and was responsible for cleaning ash from the fireplaces, he acknowledged that he does most of the outdoor chores and the applicant does most of the cleaning. The sponsor’s account was consistent with the applicant’s evidence, and she also added that the sponsor chops wood, fixes the home and is “handy”.
On the evidence given, the Tribunal is satisfied that the parties have shared a household since 2013, which is consistent with a couple in a genuine and ongoing spousal relationship. The Tribunal places some weight on the nature of the parties’ household and has not provided a higher weighting due to the limited supporting documents provided by the applicant.
The social aspects of the relationship
The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.
The applicant submitted an article (which is neither dated nor is it clear which publication it is from) entitled “International Women’s Day: Introducing a Taste of Indonesia”, which refers to the applicant, with the sponsor being her “husband”. The Tribunal does not afford this document much weight due to there being no date and a lack of clarity regarding the publication.
Eight Form 888 statutory declarations and 4 unsworn letters/statements were provided by the applicant in support from friends and family members in relation to the social aspects of the parties’ relationship.
The applicant submitted numerous letters from third parties about the nature of the parties’ relationship, including, for example:
a.Letter dated 20 March 2019 from Katrina Robinson (“K Robinson Letter”) who has known the parties for the past 12 months as they attend the same church. Ms Robinson knows the applicant and respondent as “husband and wife” and also stated that she had “… met both Ken [the sponsor] and Tati’s [the applicant’s] children, on separate occasions. I can see that both Ken and Tati are committed to building the relationships with their step children.” Additionally, Ms Robinson states:
“Ken and Tati work very collaboratively together. They have both been actively involved in the life of the church, assisting with catering, church fetes, and children’s programs. Again, there has been no question of the genuineness of their partnership. They are both considerate and supportive of each other. Ken has been committed to support his wife in refresher driving instruction, and consequently they are often seen in the community together, working beautifully together.”
b.Letter dated 22 March 2019 from Wendy Pandey (the “W Pandey Letter”) who at the time of writing the letter had known the couple for 1 year and who stated that she “found Tati [the applicant] and Ken [the sponsor] to be a very happy and loving couple.”
c.Undated Christmas card addressed to both the applicant and sponsor from “Wendy”.
d.The K Thomas Letter. Ms Thomas refers to the applicant as the sponsor’s “wife”. Ms Thomas was also present when the applicant and sponsor announced their engagement to the family and also at their wedding which was followed by a meal at the applicant’s and sponsor’s home in Grovedale (which is a suburb of Geelong). “Ken [the sponsor] and Tati [the applicant] are mostly inseparable, they do everything together. They share a common love for cooking, gardening, family and hospitality.”

The applicant provided numerous Form 888 statutory declarations in support, including, for example, from:
a.Roy Loh, dated 17 June 2022, the sponsor’s brother, who has known the applicant for six years. Mr Loh states he has visited the applicant and sponsor on a regular basis for the past six years and has regular contact with them. Additionally, he states:
“I believe the relationship to be genuine and continuing from my observations when visiting their home. They have established a business that involves the practical participation and co-operation of both Ken [the sponsor] and Tati [the applicant] together to successfully run the business. I have observed that their extended families have integrated with each other and observed them being together.”
b.Glenn Sherry, dated 20 June 2022, who has known the parties for the past six years and in that time has developed a good friendship (the “G Sherry Statutory Declaration”). Mr Sherry indicates his belief that the marriage is genuine based on his observation of the parties together and amongst other things their ability to manage a business together.
c.Trung Dang, dated 29 June 2022, who has known the sponsor, who he incorrectly refers to as the “applicant”, but it is clear from the text that he means the sponsor, for nearly a decade through work their work at “one of the largest almond orchid [sic] in Australia …”. It is not clear exactly when Mr Dang met the applicant but Mr Dang indicates in the last two years the sponsor “… his wife, my wife and i [sic] would see each other on a monthly basis, selling our cultural street food every first Sunday of the month at the Swan Hill Farmers Market for every month that we were not restricted by Covid.” Mr Dang has also stayed with the parties and believes that they “… will continue to be with each other long into the future because with their children all grown up and living far from home, i [sic] believe that all they have is each other.”
d.Marie Whiting, dated 27 June 2022, who has known the parties for two years and states that it is her belief that the relationship is genuine and continuing as she has seen them both together in numerous settings not just in the Swan Hill Harmony Day meetings but also in the community.
e.Anne Roberts, dated 20 June 2022 (the “A Roberts Statutory Declaration”), who met the sponsor 55 years ago and met the applicant five years ago and was introduced to the applicant as the sponsor’s “partner in life”. In Ms Robert’s view, the parties’ “… relationship continues to grow emotionally, their deep feelings evident in the way they work together in their relationships with family and friends.”
The applicant submitted numerous letters from third parties in relation to joint social activities that the parties plan and undertake, including, for example:
a.An invitation to the applicant and the sponsor to the sponsor’s granddaughter Abbey’s 18^th birthday on 15 September 2018;
b.Letter dated 14 March 2019 from Jeffrey Millard, the Acting Principal of Lake Charm Primary School, who first met the applicant and sponsor on 16 October 2018 and has become good friends with both of them. Mr Millard has stated:
“Ken [the sponsor] and Tati [ the applicant] are very close and are always together. Tati has also helped me on at least eight occasions (separate days) with my Indonesian programs at Lake Charm Primary and Kerang Primary School. Each time Ken has dropped her off at the school and picked her up at the end of the school day. Tati’s work with the Lake Charm School was recognised with her receiving a Helper of the Week certificate. Ken has really supported her in this work by acting as a chauffer.”
Although Mr Millard’s letter is not sworn, it appears to be confirmed in some respects by a copy of the Lake Charm Primary School newsletter dated 31 October 2018 which states the following: “Last Wednesday we had a visit from Bu Tati [the applicant], Ken [the sponsor] and their friend Bu Loui. Tati and Loui come from Indonesia, but are now living at Kangaroo Lake. Bu Tati and Ken showed us where they have a home in Bali (Google Satellite) and Bu Tati assisted us with our fun Indonesian role plays.” The applicant has also provided the Tribunal with the Lake Charm Primary School Helper of the Week certificate dated 3 December 2018 which was mentioned in Mr Millard’s letter.
c.The W Pandey Letter also indicates that she had been invited to the sponsor’s birthday at his home with other friends of the applicant and the sponsor. Additionally, Ms Pandey states that she has been to the applicant’s and sponsor’s home and vice versa many times.
d.A letter dated 21 March 2019 from Father Simon R Robinson, who knew the parties as their parish priest over the previous 12 months. Father Robinson had also visited the parties in their home in his capacity as a priest, “…dined with them at same, along with their family and friends from Australian and Indonesia.”
e.The K Thomas Letter also indicates that she has eaten at the parties’ home on a number of occasions with her husband and children and had the parties at her house for meals and eaten out with them. “It was not uncommon to celebrate birthdays, Christmas and New Year’s Eve at their house particularly when they lived in Geelong.”
The applicant provided numerous Form 888 statutory declarations in support, including, for example:
a.The G Sherry Statutory Declaration which states that whilst the parties’ resided in Geelong, Mr Sherry and his wife would meet with them monthly, and now they have moved to Mystic Park they meet with them every two–three months but would speak to them on a weekly basis.
b.The A Roberts Statutory Declaration wherein Ms Roberts states she has visited the parties many times in Bali and Australia, and the parties have visited her at her home and stayed with her on many occasions. Ms Roberts shares “… birthdays, get togethers and life events” with the parties.
The applicant submitted three photographs without dates, narration or people being identified. The Tribunal does not afford this evidence much weight.
Based on the volume of statutory declarations and unsworn statements provided by the applicant (including from people who have known the parties for considerable periods of time and have stayed with the parties in their home) and the oral evidence from the witnesses, the Tribunal is satisfied that the parties represent themselves to other people as being married to each other, evidence from the parties’ friends and family is indicative of their belief that the parties have a mutual commitment as a married couple to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal places weight on the social aspects of the parties’ relationship.
The nature of the persons’ commitment to each other
The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see the relationship as a long term one.
Both parties confirm in their oral evidence that their relationship started in 2013 and they were married in 2017.
There was inconsistent oral evidence given by the applicant and sponsor as to the month their relationship commenced. The Tribunal does not afford any negative connotations to the inconsistency of the month as a significant amount of time has elapsed since 2013 and it therefore considers it reasonable that the parties may not remember the exact month.
Oral evidence was given by Mr Baker (the sponsor’s son-in-law) that he and his wife had attended the parties’ wedding ceremony in Geelong in 2017.
Ms McDonald in the C McDonald Statutory Declaration has stated that she has known the parties for eight years and first met them in 2014 and attended their wedding. This was consistent with the oral evidence given at the hearing by Ms McDonald. Ms McDonald gave oral evidence that the parties’ acknowledge their wedding vows and “take them seriously”.
Ms Roberts in her oral evidence stated that she met the parties in the early days in their relationship in Bali, and the secondary applicant was always with them. Ms Roberts stated that her late husband, who knew the sponsor since he was 16 years old, was a witness at the parties’ wedding, and the parties have provided her with emotional support when her husband passed away.
[Deleted.]
The applicant provided oral evidence that the sponsor provided her with emotional support on the passing of father and in the last year on the passing of her only sister. The sponsor provided evidence that he had supported the applicant during COVID which had been “tough” on her. Her older sister in Indonesia had died, and her first grandchild had been born, and she had not been able to travel back to Indonesia.
Ms Baker gave oral evidence at the hearing that the parties had provided each other with emotional support and gave the example of the applicant leaving her country and having to rely on the sponsor, and, likewise, when the parties met and the sponsor moved to Bali, he did not have any family or anyone to rely on in Bali and had to rely on the applicant. Ms Baker also stated that the applicant and secondary applicant are “one hundred percent our family”.
The applicant gave evidence that in terms of future plans, she wanted to go to Bali to see family, which is consistent with the sponsor’s evidence that the parties are planning to spend the winter in Indonesia and the warmer times of the year in Australia. The sponsor confirmed that the parties have a lot of friends and family in Indonesia. Both parties gave evidence about going to Tasmania to visit the sponsor’s brothers. Recently, one of the sponsor’s brothers, Roy, who was caravanning to Darwin with his wife, stayed with the applicant and sponsor on the way, and, to use the applicant’s words, “invited”, or, to use the sponsor’s words, “put pressure on us”, to visit in Tasmania.
The Tribunal asked both the applicant and sponsor what would become of the parties’ relationship if a visa was not granted to the applicants. The parties were clear in their respective evidence that they would both move to Indonesia. The Tribunal places considerable weight on this evidence (particularly given that the sponsor has lived in Bali, Indonesia, in the past with the applicant) as it is indicative that a migration outcome is not the driver of the relationship of the parties and instead that it is the genuineness of their relationship and their commitment to a shared life as a married couple.
The evidence before the Tribunal indicates that the parties draw emotional support and companionship from each other and have done so since they lived in Bali together. The Tribunal is satisfied that the parties’ relationship is genuine, and they are committed to each other.
Time of application requirements
The main issue for determination is whether, at the time of application on 19 January 2017, the applicant and the sponsor were each other’s spouse or in a de facto relationship with each other for the purposes of the Act.
Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:
This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.
Accordingly, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.
For the reasons provided in relation to the reg 1.09A matters above, the Tribunal is satisfied that at the time of application, the applicant and sponsor:
a.were not in a married relationship, as the parties were not married until 7 July 2017;
b.had a mutual commitment to a shared life to the exclusion of all others as required by s 5CB(2)(a) of the Act;
c.had a relationship between them that is genuine and continuing as required pursuant to s 5CB(2)(b) of the Act;
d.live together or do not live separately and apart on a permanent basis as required by s 5CB(2)(c) and have done so since 2013; and
e.are not related by family as required by s 5CB(2)(d) of the Act. The Application for Migration to Australia makes clear that neither is the child of the other, nor is one descendant of the other and neither have a parent in common.
Therefore, the Tribunal determines that at the time of application, the applicant and sponsor met the definition of “de facto partner” as set out in s 5CB of the Act.
The “de facto partner” requirement is not the only requirement of cl 820.211(2) which must be met. The Tribunal finds that cl 820.211(2)(a) is met as the applicant was a de facto partner of an Australian citizen as required by cl 820.211(2)(a)(i) and there is no information before the Tribunal indicating that the circumstances in cl 820.211(2B) apply, hence the Tribunal finds that cl 820.211(2)(a)(ii) is met.
The Tribunal also finds that the applicant’s de facto partner was over 18 years old, being born in 1949, and the applicant is sponsored by the applicant’s de facto partner. Therefore, cl 820.211(c)(i) is satisfied.
The Department’s decision record on 1 March 2019 indicates that on 19 January 2017 the applicant was the holder of a Tourist (Subclass FA-600) visa and on the day of the visa application (19 January 2017) the applicant lodged a Partner (Subclass 820/801) visa application. Accordingly, the Tribunal finds that at the time of application, the applicant held a “substantive visa” as defined under s 5 of the Act, and therefore the requirements in cl 820.211(d) do not apply.
The Tribunal finds that at the time of application, the requirements in cl 820.211(2) were satisfied.
Are the additional criteria for a de facto relationship met?
The applicant and sponsor were in a de facto relationship at the time of application and a married spousal relationship at the time of decision. The applicant is therefore required to meet the additional de facto criteria to meet the time of application criteria.
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the Tribunal is satisfied that the applicant and the sponsor were at least 18 years old and in fact were significantly older, being born in 1970 and 1949 respectively.
The applicant must have been in the de facto relationship for at least the 12‑month period ending immediately before the date of the application: reg 2.03A(3).
This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12‑month requirement. The parties both gave independent oral evidence that they had been living together as a couple since 2013, first in Bali (the applicant resigned from her job in Bandung (the applicant’s hometown)), and then the sponsor moved from Australia to Bali in order to be with the applicant. The secondary applicant in her oral evidence stated that she met her “stepdad” when she was 14 years old, 9 or 10 years ago, and that she, the applicant and the sponsor had moved to Bali and lived together for a three‑year period.
The sponsor gave oral evidence that he paid to lease a villa for the parties where the parties “set up home” (including the secondary applicant) in Bali for a three‑year period, which is consistent with the applicant’s evidence. The parties lived together and only spent very brief periods apart. In 2016 the applicant gave evidence that the parties (including the secondary applicant) moved to Australia to all live together in Geelong in a property owned by the sponsor. Accordingly, the Tribunal is satisfied that the applicant had been in a de facto relationship for at least the 12‑month period ending immediately before the date of the application.
Time of decision criteria
As the parties are legally married, the Tribunal finds that at the time of decision, the applicant no longer meets the de facto criteria and instead meets the spouse criteria and accordingly continues to meet the requirements in cl 820.211(2), and therefore the applicant meets cl 820.221(1)(a) at the time of decision.
Accordingly, the Tribunal determines that at the time of application, the applicant met the requirements in cl 820.211(2). On the basis of the above, the Tribunal is satisfied that the requirements of s 5CB were met at the time of application and s 5F(2) is met at the time of this decision.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa. Considering the applicant meets cl 820.211(2) and cl 820.221(1)(a), the appropriate course is that the Tribunal also remits for reconsideration the secondary applicant’s application.
decision
The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations;
·cl 820.221(1)(a) of Schedule 2 to the Regulations;
·reg 2.03A.
Brygyda Maiden
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
1.15A     Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2022] AATA 3245

12 July 2022

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