Bury (Migration)

Bury (Migration) [2024] AATA 4040 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Stephen Andrew Bury
CASE NUMBER:  2112058
HOME AFFAIRS REFERENCE(S):          BCC2019/5119520
MEMBER:Brygyda Maiden
DATE:9 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 09 October 2024 at 12:58pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – financial aspects of the parties’ relationship do not support the parties being in a genuine and continuing relationship – no evidence has been submitted since 2022 of the parties current living arrangements – applicant has not provided sufficient evidence of a genuine long-term spousal relationship with the sponsor – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5CB, 65, 359, 375
Migration Regulations 1994, rr 1.09, 2.03, Schedule 2, cl 820.211, 820.221
CASES
Hasran v MIAC [2010] FCAFC 40
He v MIBP [2017] FCAFC 206
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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicant, a British citizen, applied for the visa on 12 October 2019 on the basis of his relationship with his 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.
The delegate “assessed whether you and your sponsor met the definition of de facto partners in accordance with Section 5CB. I have also assessed your relationship against the matters listed in Regulation 1.09A to determine whether a de facto relationship existed at the time of application lodgement on 12 October 2019, and in particular, whether your relationship existed 12 months prior to lodgement, as required by Section [sic] 2.03A”. The delegate ultimately found that the applicant did not satisfy cl 820.211(2) of Schedule 2 to the Regulations, as the applicant did not meet reg 2.03A and there was no evidence of a de facto relationship for at least 12 months immediately before the date of application.
On 27 August 2021, the applicant applied to the Tribunal for review, and attached a copy of the notification and decision from the Department.
On 13 May 2024, a representative of the Registrar wrote to the applicant requesting further information and supporting evidence from when the parties’ relationship commenced until the date of the letter. Examples of the types of information were provided. The applicant did not submit any information in response to that letter.
On 4 September 2024, the Tribunal sent the applicant an invitation to attend the hearing on 6 November 2024.
Section 359(2) of the Act invitation
On 4 September 2024, the Tribunal also wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information to support the parties’ claims that the parties are in a spouse or de facto relationship in writing. The invitation advised that if the information was not provided in writing by 18 September 2024 the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not provide any information within the prescribed period and no extension of time was either requested by the applicant or granted by the Tribunal. On 26 September 2024, the Tribunal wrote to the applicant advising that s 359C of the Act applies and pursuant to s 360(3) of the Act, the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. However, the Tribunal notes that it waited a number of weeks after the due date of the s 359(2) of the Act invitation prior to making a decision, in case the applicant decided to submit any further information in support of his review. Although the applicant did make contact with the Tribunal it was in response to the Tribunal’s letter in relation to the s 375A of the Act certificates, as discussed below.
Section 375A of the Act certificates
On 26 September 2024, the Tribunal wrote to the applicant to advise him of two s 375A of the Act certificates dated 27 August 2021 and 18 September 2024. The Tribunal attached both copies of the certificates and advised that it did not think that the first was valid (because it was not properly signed) but thought that the second was. The certificates covered the same information in folio ADD2021/4751075 contained in Department file BCC2019/5119520. The Tribunal did disclose the gist of the information that was covered by the certificates:
a. that you were terminated for cause on 14 August 2019, and since then it is claimed that you have called employees telling them to look for other jobs and threatening them. You have contacted former employees who left the company on good terms with a view of teaming up with them and suing your former employer. You have stolen confidential (and some sensitive) company documents and refused to return them.
b.that your 457 visa was terminated on 15 August 2019 and as at 15 October (though the year was not clear), you were still in Australia.
The Tribunal has considered the information covered by the certificate. Although the information may be considered adverse, it does not relate to the issues currently under review, namely: whether you and your sponsor are spouses or de facto partners as defined under s 5F and 5CB of the Act, or whether you and your sponsor have been in a de facto relationship for at least 12 months ending immediately before the date of application (see reg 2.03A of the Migration Regulations).
The Tribunal made clear that for the reasons identified in its letter, it gave the information covered by the certificates no weight. Despite this, the applicant sent e-mails to the Tribunal dated 26 September 2024 in relation to the information covered by the certificate, despite the Tribunal making clear that it would give that information no weight.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the Tribunal’s view, although the delegate made a finding that the applicant did not meet cl 820.211(2) the delegate only considered cl 820.211(2)(a)(i) which requires that the applicant be the spouse or de facto partner of a person who is an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen. No finding was made as to whether the applicant was prohibited by subclass (2B) from being a sponsoring partner (see cl 820.211(2)(a)(ii))); whether the applicant was sponsored (as required by cl 820.211(c)) or whether the applicant was the holder of a substantive visa and the requirements in cl 820.211(2)(d). For the purposes of this review the Tribunal will therefore only consider whether the requirements in reg 2.03A are met and whether the applicant is the spouse or de facto partner of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.
Are the parties are in a spouse or de facto relationship?
Clause 820.211(2) requires that at the time the visa application was made that the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen. A copy of the bio pages of the sponsor’s Australian passport appear on the Department file.
Are the parties in a de facto relationship?
'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 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 about 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.
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
The applicant submitted an undated unsigned letter from Cindy Verhoeven of KPMG to the Belgian Embassy in Canberra indicating that the applicant “…is applying for an Evisa in order to enter into a legal cohabitation agreement with his Australian partner. Afterwards, Mr Bury will return to the United Kingdom where he will apply for his Belgian visa type D as part of the approval of his single permit which enable him to start his assignment in Belgium. Therefore, he has no intention to remain in Australia.”
The applicant submitted to the Tribunal a copy of the parties’ Queensland civil partnership certificate which indicates that their relationship was registered pursuant to the Civil Partnerships Act 2011 (Qld) on 9 November 2022 and is a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5). Accordingly, the 12 month requirement does not apply.
For these reasons, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.
Financial aspects of the parties’ relationship
Is there any joint ownership of real estate or other major assets or any joint liabilities?
The undated document headed “statutory declaration” from the applicant on the Department file indicates that the parties purchased an apartment together in April 2019. To this end, the Department file contains a Suncorp joint mortgage statement for the period of 26 March 2019 until 26 September 2019 for a property at 150 The Esplanade, Surfers Paradise (“The Esplanade”). The Tribunal gives this some weight. No title documents were submitted to confirm the legal owner of the property however, a joint rates notice for the property issued on 2 January 2020 tends to indicate that the property is jointly owned by the parties. The Tribunal gives this a small amount of weight.
At the time of application, there is a small amount of evidence to suggest that the parties jointly own an apartment together in Surfers Paradise and there is evidence that the parties have a joint liability in the form of a mortgage. The Tribunal affords this some weight.
At the time of decision, (and for a couple of years before) no documentation has been submitted to the Tribunal to indicate whether the parties continue to jointly own real estate or other major assets or whether the mortgage is still in existence or not.
What is the extent of any pooling of financial resources, especially in relation to major financial commitments?
The Department file contains two instructions to payroll officers both dated 10 August 2021 one from each party showing The Esplanade address and requesting that the party that is issuing the letter have their salary credited to the parties’ joint account. The Tribunal gives these instructions no weight as they are not signed by either party, the payroll officer’s name is not included, the company to which it is being sent is not included and neither is either party’s employee number. These factors tend to indicate that the instructions were not issued. Although the instructions appear to indicate that the parties have a joint bank account the applicant did not submit a copy of the bank statement or a confirmation from the bank that the account was opened. For these reasons, the Tribunal affords this little weight.
The applicant’s statement dated July 2022 submitted to the Tribunal indicates that the parties have a joint UK bank account. However, no statements were submitted or confirmation from the bank that a joint account had been opened. For this reason, the Tribunal affords this this little weight.
Does one person in the relationship owe any legal obligations to the other?
The applicant submitted a document dated 18 October (though the year is not clear) indicating that the sponsor is a 50% non-binding beneficiary of his Australian Super superannuation. Given the ease at which beneficiaries can be changed and because it is not clear whether the sponsor is still a beneficiary of the applicant’s superannuation account, the Tribunal affords this a small amount of weight.
What is the basis of any sharing of day-to-day household expenses?
According to the application for migration to Australia by a partner form generated on 12 October 2019 on the Department file (“Application Form”), the applicant claims that the parties have shared bills for body corporate, electricity and rates. The applicant also occasionally pays some of the bills at the sponsor’s house. The sponsor is also listed as a driver on the applicant’s car insurance. In support of this, the Department file contains copies of (all of which were issued after the time of application):
a.a City of Gold Coast water and sewerage rates notice for the period of 19 November 2019 until 28 February 2020 addressed to both parties;
b.a joint rates notice for an apartment at The Esplanade, issued on 2 January 2020;
c.notice of contributions from Peak Body Corporate Management made out to both parties at The Esplanade issued on 2 January 2020;
d.a joint electricity bill for an apartment at The Esplanade, issued on 18 March 2021;
e.a screen shot of what appears to be a bank account though it is not clear whose account showing transactions on 10 and 11 May though the year is not clear;
f.screen shots of a bank account between 2020 and 2021 with transfers highlighted on it. The Tribunal gives this little weight as it is not clear from the screen shots whose bank account it is or whose account the transfers are going into; and
g.a statement of activity for body corporate tax invoice addressed to both parties at The Esplanade, issued on 21 July 2021.
At the time of application, the Tribunal is not satisfied that the parties share day-to-day household expenses. Although after the time of application, there appears to be a couple of years of sharing of day-to day household expenses, there is no recent evidence over the last three years. At the time of decision, there is no evidence before the Tribunal that the parties continue to share day-to-day household expenses.
Conclusion on the financial aspects of the parties’ relationship
In respect of the financial aspects of the parties’ relationship, at the time of application there is a small amount of evidence before the Tribunal that the parties had a joint apartment together in Surfers Paradise and some evidence of a joint liability in the form of a mortgage. There is no evidence that the parties pooled financial resources or that one party owed any legal obligations in respect of the other. There is no evidence that the parties shared day-to-day household expenses. On balance, at the time of application the financial aspects of the parties’ relationship provide some support that the parties are in a genuine and continuing relationship and have a mutual commitment to a shared life.
At the time of decision, because no documentation has been submitted in relation to the financial aspects of the parties’ relationship since 2022, it is not clear whether the parties continue to have joint ownership of real estate or other major assets (that is, whether they continue to own the apartment at The Esplanade), or whether the parties continue to have joint liabilities (in the form of the mortgage). It appears that the parties may have opened a joint bank account in Australia in 2021, however, no statements were provided or confirmations from the bank in support of this claim. Additionally the applicant in his statement dated July 2022 claims that the parties opened a joint bank account in the UK. However, no statements of this account or confirmations from the bank were submitted either to support the applicant’s claims. Evidence was submitted in relation to one party owing a legal obligation in the form of the sponsor being a 50% non-binding beneficiary of the applicant’s Australian Super superannuation account. It is not clear whether or not that is still the case. At the time of decision, no recent evidence has been submitted to the Tribunal that the parties continue to share day-to-day household expenses. On balance, at the time of decision, particularly when considering the parties’ claimed relationship duration, the financial aspects of the parties’ relationship do not support the parties being in a genuine and continuing relationship or having a mutual commitment to a shared life.
Nature of the household
Do the parties have any joint responsibility for the care and support of any children?
There is no evidence before the Tribunal at the time of application or time of decision that the parties have any joint responsibility for the care and support of any children.
What are the living arrangements of the persons?
The Application Form lists the parties’ residential address as The Esplanade and lists their postal address as a house on Commodore Drive, Paradise Waters, Queensland (though the suburb is in some correspondence referred to as Surfers Paradise) (“Commodore Drive”). An undated statement from the applicant on the Department file indicates that the parties spend time at both properties. The Tribunal gives this some weight.
The applicant wrote to the Tribunal in July 2022 stating that the parties were in the UK and Europe as the applicant has an assignment for two years in Belgium. No evidence has been submitted since 2022 of the parties current living arrangements.
Is there any sharing of the responsibility for housework?
The Application Form also states that the parties cook for each other. The parties share cleaning though the sponsor does the most and buys the food. The form 888 statutory declaration of Mr Kurtis O’Donnell dated 7 February 2020 states that the parties enjoy cooking together and take turns doing chores like the dishwasher and vacuuming. The Tribunal affords this some weight. A letter from the applicant to Andrej on the Department file indicates that the applicant fixes things and helps with part of the garden, and the sponsor is the “greenfinger with plants”. The Tribunal affords this a small amount of weight.. It is not clear if and how the parties currently share housework.
Conclusion on the nature of the household

In respect of the nature of the household, at the time of application, the parties have no responsibility for the care and support of any children. There is some evidence that the parties live together in Queensland and that they share the responsibilities of housework. On balance, at the time of application, although there is some evidence of the nature of the household, it does not provide strong support for the parties being in a genuine and continuing relationship.
At the time of decision, there is no recent evidence before the Tribunal that the parties have any joint responsibility for the care and support of any children, the parties’ current living arrangements or whether they continue to share the responsibility for housework. On balance, at the time of decision, the nature of the household does not support the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life, or living together and not separately and apart on a permanent basis.
Social aspects of the relationship
Do the parties represent themselves to other people as being in a de facto relationship with each other and what is the opinion of the persons’ friends and acquaintances about the nature of the relationship?
The Department file contains:
a.an e-mail from Max Campbell at Suncorp dated 16 April though the year is not clear addressed to both parties but sent to the sponsor in relation to a damages claim at a property at Hick Street, Mount Gravatt;
b.an e-mail dated 24 April (though the year is not clear), sent to the sponsor but addressed to both parties in relation to compensation from a tenant Joseph Espinoza;
c.an e-mail sent to the applicant but addressed to both parties dated 15 December 2018 from Jess Atillo from the Commonwealth Bank in relation to their home loan interview;
d.an e-mail from the applicant to Colin Scott dated 14 February 2019 stating that the applicant would be purchasing the property with his “partner Ms Ying Wong”;
e.an e-mail dated 3 March 2019 from Cindy from Suncorp sent to the applicant but addressed to both parties regarding their lending needs;
f.an e-mail from Karen of Southport Gold Club dated 15 November 2019 to the applicant discussing the applicant joining the golf club and changes to the sponsor’s membership;
g.a personal details form dated 16 December 2019 for PlaneSupport completed by the applicant listing his address as Commodore Drive and listing his emergency contact as the sponsor;
h.an e-mail to Vivienne Ashton dated 4 March 2020, from the applicant stating that the applicant and “my partner (also member) Ying Wong will be happy to attend”. Though it is not clear what they are attending; and
i.correspondence between the applicant and Bernadette of the Southport Gold Club on 14 July 2020 in relation to the sponsor’s golf membership.
The Department file contains form 888 statutory declarations from:
a.Ms Kerry Ann Vunitabua dated 10 February 2020. At the time of the declaration, she had known the applicant for two years and the sponsor for four. She met the sponsor at the Southport Yacht Club and they see each other once or twice a week. She met the applicant at the sponsor’s home for dinner. She sees him a least once a week. The parties have been in a relationship and lived together for the two years she has known the sponsor. The parties go out socially on a weekly basis.
b.Mr Kurtis O’Donnell dated 7 February 2020. At the time of the declaration he had known the applicant for one year and seven months and the sponsor for approximately 11 years. He was introduced to the applicant in June 2018 by the sponsor at her residence. The parties had met through Internet dating. Mr O’Donnell is a close personal friend of the sponsor. He speaks to her every second or third day. The applicant moved in with the sponsor about two months after they first met. The parties have a lot in common, golf, riding their jet ski, enjoying the same food, movies, entertainment, dining and socialisation. They both are loving and caring of each other, show displays of public affection and have pet names for each other, hold hands and kiss. The parties enjoy cooking together and take turns doing chores like the dishwasher and vacuuming. Mr O’Donnell is aware that the parties have lived together for well over 12 months at the sponsor’s residence, they share bills, and money and live as a de facto couple.
The applicant submitted to the Tribunal a copy of the parties’ Queensland civil partnership certificate which indicates that their relationship was registered pursuant to the Civil Partnerships Act 2011 (Qld) on 9 November 2022.
At the time of application, there is some evidence that the parties represent themselves as being in a de facto relationship with each other and some opinion evidence from the parties’ friends and acquaintances about the nature of the relationship. The Tribunal affords this some weight.
At the time of decision, because the applicant has not submitted any further documentation to the Tribunal in support of the social aspects of the parties’ relationship since November 2022, it is not clear whether the parties continue to represent themselves to other people as being in a de facto relationship which each other or what the opinion of the persons’ friends and acquaintances about the nature of the parties’ relationship is.
What is the basis on which the parties plan and undertake joint social activities?
The Application Form states that the parties like playing golf, cycling together and going out on the jet ski. The parties socialise with friends at the Casino where they are members.
The Department file contains photographs of the parties together in Sydney and at numerous other locations (including the golf course and on a boat) and at numerous social functions with others including for example dinners, parties, and celebrations. However, it is not clear from the photographs whether they were taken prior to or after the time of application as they are neither date stamped nor narrated. Nevertheless, the Tribunal affords them some weight.
The Department file contains copies of:
a.flights to Sydney for both parties on 25 August though the year is not clear.
b.a Jetstar flight itinerary issued on 22 July 2018 in the applicant’s name showing a Staghorn Avenue, Surfers Paradise address for both parties to fly from Sydney to the Gold Coast on 27 August 2018;
c.a Jetstar flight itinerary issued on 11 February 2019 for the parties to fly from the Gold Coast to Sydney on 22 February 2019 and return on 25 February 2019.
At the time of application, there is some evidence that the parties plan and undertake joint social activities together and have travelled interstate together. The Tribunal affords this some weight.
The applicant submitted to the Tribunal flight reservations for both parties to travel to Hong Kong on 2 November 2021 and then on to London on 30 November 2021.
Although evidence in 2021 of the parties’ travel arrangements was submitted to the Tribunal no other evidence since then has been submitted that the parties plan and undertake joint social activities together.
Conclusion on the social aspects of the relationship
In relation to the social aspects of the parties’ relationship, there is some evidence that the parties represent themselves as being in a de facto relationship with each other, there is some opinion evidence from the parties’ friends and acquaintances about the nature of their relationship and there is some evidence that the parties plan and undertake joint social activities. On balance, at the time of application the social aspects of the parties’ relationship provide some support for the parties being in a genuine and continuing relationship.
At the time of decision, the applicant has not submitted any further evidence since 2022 to indicate that the parties continue to represent themselves as being in a genuine and continuing relationship. There has been no opinion evidence since 2020 from the parties’ friends and acquaintances about the nature of the parties’ relationship and no current evidence that the parties plan and undertake joint social activities. On balance, at the time of decision, the social aspects of the parties’ relationship do not support the parties’ being in a genuine and continuing relationship or having a mutual commitment to a shared life.
Nature of the persons’ commitment
What is the duration of the relationship?
According to the Application Form the parties’ relationship began on 9 June 2018. The applicant’s undated document headed “statutory declaration” on the Department file states that the parties met and started dating in June 2018 and their first date was playing golf.
At the time of application, the parties were in a relationship for under a year. The Tribunal gives this a small amount of weight. At the time of decision, the parties have been in a relationship for approximately six years. The Tribunal affords this significant weight.
What is the length of time that the parties have lived together?
The sponsor’s undated statement to Andrej on the Department file indicates that the parties moved in together in 2018, and the parties spend their time at the parties’ joint apartment or the sponsor’s house at Commodore Drive. The form 888 statutory declaration of Mr Kurtis O’Donnell dated 7 February 2020 states the parties had lived together for well over twelve months at the sponsor’s residence. The form 888 statutory declaration of Ms Kerry Ann Vunitabua dated 10 February 2020 states that the parties have lived together for two years. The Tribunal does not accept this evidence as the parties had only met in June 2018.
The Department file contains a copy of (in addition to the joint bills already mentioned):
a.the applicant’s Queensland heavy vehicle drivers’ licence which shows the address as an apartment at The Esplanade;
b.the sponsor’s drivers’ licence which shows the Commodore Drive, address;
c.a Virgin Money insurance certificate effective from 17 December 2018 listing the applicant as the policy holder and the regular driver and the sponsor as a listed driver. The risk and postal address are listed as Commodore Drive;
d.the applicant’s Queensland Government and Main Roads change of address confirmation on 24 April 2019 showing his residential address as The Esplanade;
e.an e-mail to the applicant dated 30 May 2019 from Garmin which shows in an earlier e-mail dated 29 May 2019 that the applicant’s address was Commodore Drive;
f.the applicant’s medical certificate from Chevron After Hours Medical Service listing his address as Commodore Drive, for a consultation on 10 July 2019;
g.a letter dated 8 October 2019 to the applicant at Commodore Drive, from Shannons in relation to a motor insurance policy change and showing the drivers as the applicant and the sponsor and the garaging of the vehicles at Commodore Drive;
h.an e-mail to the applicant dated 22 December 2019 from Dojita in relation to his purchase with the shipping address specified as Commodore Drive;
i.the applicant’s payslips from PlaneSupport with a payment date of 23 December 2019 and 28 June 2021;
j.a letter dated 16 March 2020 to the applicant addressed to Commodore Drive, but sent by e-mail in relation to the cancellation of his Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa;
k.the applicant’s confirmations by e-mail dated 11 July 2020 and 15 October 2020 that E-Bay purchases had arrived addressed to the applicant at Commodore Drive;
l.a letter to the applicant dated 20 May 2021 from the Board of Professional Engineers of Queensland;
m.a letter addressed to the applicant at Commodore Drive dated 26 May 2021 from Kylie Mercer of the Board of Professional Engineers; and
n.the applicant’s Queensland Government Transport and Motoring Account accessed on 25 June 2021 which shows his address as The Esplanade, and his postal address as Commodore Drive.
From a correspondence perspective, as at 12 October 2019, there is a small amount of evidence that the parties’ were living together though it is not clear for how long exactly. The Tribunal notes the earlier form 888 statutory declaration evidence indicates that the parties were living together before the time of application (though the evidence is not clear as to how long for) . The Tribunal affords this some weight.
At the time of decision, no recent documentation has been submitted to indicate whether or not the parties continue to live together.
What is the degree of companionship and emotional support that the persons draw from each other?
The Department file contains a phone contact lists showing both parties names, though it is not clear from the document whose phone it is. The Tribunal gives this little weight.
The Department file contains the copies of the applicant’s Optus phone records showing a Staghorn Avenue, Surfers Paradise address from February 2019 until July 2021 and the sponsor’s Vodafone records which shows the Commodore Drive, address from August 2018 until July 2021. Both sets of records show that the parties regularly phone each other. However, because the Tribunal is unable to determine the companionship or emotional support that the parties draw from each other from the phone records, the Tribunal affords them little weight.
The Application Form states that the parties “…will look to marry within the next 6 months or so…”. The sponsor gives the applicant “…good advice on dealing at work and stress etc of which she is a fantastic calming influence.” The Tribunal affords this a small amount of weight. There is no evidence that the parties have married but there is evidence that they registered their relationship in November 2022.
At the time of application, on balance there is a small amount of evidence as to the degree of companionship and emotional support that the parties draw from each other, and at the time of decision no recent evidence has been submitted as to the degree of companionship and emotional support that the parties draw from each other.
Do the persons see the relationship as a long term one?
Given the parties’ registered their relationship in November 2022, the Tribunal considers this an indication that at the time of application that the parties’ saw their relationship as a long term one. The Tribunal gives this a small amount weight.
At the time of decision, due the lack of recent evidence before the Tribunal, it is not clear whether the parties see the relationship as a long term one.
Conclusion on the nature of the persons commitment to each other
At the time of application, the parties had been in a relationship for under a year. There is some evidence that the parties were living together though it is not clear exactly for how long prior to the time of application. There is a small amount of evidence as to the degree of companionship and emotional support that the parties’ draw from each other and small amount evidence that the parties see their relationship as a long term one. On balance, there is a small amount of evidence as to the nature of the persons’ commitment to each other, which provides a small amount of support for the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life and living together and not separately and apart on a permanent basis.
At the time of decision, the parties have been in a relationship for approximately six years. Although there is evidence to suggest in the past that the parties have lived together including for a couple of years after the time of application, it is not clear over the past couple of years whether the parties continue to live together. There is no recent evidence submitted to the Tribunal to suggest the degree of companionship and emotional support that the parties draw from each other or that the parties see their relationship as a long term one. On balance, at the time of decision the nature of the persons commitment to each other does not support the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life, and living together and not separately and apart on a permanent basis.
CONCLUSION
For the reasons discussed above, the Tribunal is satisfied that the parties meet reg 2.03A and that the parties are not related by family as required by s 5CB(2)(d).
For the reasons discussed in the reg 1.09A matters, the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time of application. However, the Tribunal is not satisfied that the requirements of s 5CB(2) continue to be met at the time of decision (in particular that the parties have a mutual commitment to a shared life as required by s 5CB(2)(a) or that the relationship between them is genuine and continuing as required by s 5CB(2)(b). This is primarily due to the lack of evidence submitted over the last couple of years by the applicant.
Therefore, the applicant meets time of application criteria cl 820.211(2)(a)(i) of Schedule 2 to the Regulations but the applicant does not meet time of decision criteria cl 820.221(1) of Schedule 2 to the Regulations. There is no evidence to suggest that the alternative criteria in cl 820.221(3) which relate to the death of the sponsor, a dependant child or family violence applies in this case.
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 (Temporary) (Class UK) visa.
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).

[2024] AATA 4040

9 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice