Cabsari (Migration)

Cabsari (Migration) [2021] AATA 1432 (13 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Trivera Cabsari
CASE NUMBER:  1811015
HOME AFFAIRS REFERENCE(S):          BCC2014/2162535
MEMBER:Justine Clarke
DATE:13 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations
·r.2.03A

Statement made on 13 May 2021 at 3:22pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – de facto partners at time of application – religious marriage while sponsor legally married to first wife – scope of sponsor’s interactions with first wife – ongoing relationship, separation or religious divorce – concern for well-being of children with first wife – credibility – evidence given to previously constituted tribunal and member’s findings on that evidence – applicant’s and interpreter’s misunderstanding of some questions – later written statements and oral evidence to present tribunal – financial, household and social aspects of relationship – nature of commitment – spouses at time of decision – sponsor divorced first wife and married applicant in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F(2), 65, 359A, 359AA
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.15A(3), 2.03A, Schedule 2, cls 820.211(2)(a), 820.221
Marriage Act 1961 (Cth), ss 88D(2)(a), 94
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 24 December 2015 by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of Indonesia. From the evidence before it, the Tribunal is satisfied that, at the time of application, the applicant was 38 years of age and, at the time of this decision, she is 44 years of age.
On 1 September 2014, the applicant applied for the visa on the basis of her relationship with her sponsor, Mr Diyan Zukifli. From the evidence before it, the Tribunal is satisfied that, at the time of application, the sponsor was 45 years of age and, at the time of this decision, he is 52 years of age.
At the time of application, 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. The primary criteria include cl.820.211 and cl.820.221.
The applicant provided the Tribunal with a copy of the primary decision. The delegate assessed the application pursuant to cl.820.211(2), finding it to be the only subclause relevant in the circumstances. The delegate considered that the information and evidence, submitted in support of the application, was not sufficient to demonstrate that, at the time of the application on 1 September 2014, the applicant satisfied the definition of de facto partner under s.5CB of the Act. The delegate made no findings in respect of the time of decision criteria.
On 13 January 2016, the applicant applied to the Tribunal for the review of the primary decision. The Tribunal was represented in relation to the review by a registered migration agent.
On 27 July 2017, the applicant appeared before the Tribunal (differently constituted) to give evidence and present arguments. At that time, the Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The representative also attended the hearing.
After the hearing, on 3 August 2017, the Tribunal wrote to the applicant, by way of her representative, stating that the information provided by the Tribunal at the hearing and put to the applicant for comment or response pursuant to s.359AA of the Act was subject to a s.376 certificate. The letter attached a copy of the certificate. The certificate sought to protect the disclosure of the documents at folios 86 and 87 of the Department’s file for the processing of the applicant’s application for a Subclass 820 visa. As will be explained in these reasons, these folios contain information from a Client of Interest Note.[1]
[1] An internal note on the Department’s file notes that the applicant was not given an opportunity to comment on the information contained in the ‘COI’ [Client of Interest Note] because the delegate’s refusal decision was ‘made purely based on the submitted documents only’.
That same day, being 3 August 2017, the Tribunal also sent another letter to the applicant, again by way of her representative. This letter invited the applicant to comment on or respond to information pursuant to s.359A. The Tribunal invited the applicant to give written comments or response by 17 August 2017.
Thereafter, the representative and the Tribunal exchanged various correspondence. For present purposes, it is sufficient to note only the representative’s written submissions dated 17 August 2017 and 23 August 2017 as well as statutory declarations made by the sponsor and by Ms Retna Sita Dewi, the sponsor’s first wife, each on 23 August 2017.
On 28 August 2017, the Tribunal made a decision to affirm the decision not to grant the applicant a Partner (Temporary) (Class UK) visa: AAT reference number 1600437.
Subsequently, the applicant sought the judicial review of that decision.
On 12 April 2018, the Federal Circuit Court of Australia made orders by consent quashing the decision of 28 August 2017. The Tribunal was directed to re-determine the applicant’s review application according to law. The Order explained that the decision is affected by jurisdictional error in that the Tribunal failed to comply with its obligations under s.359A(1) of the Act with respect to information before it that an airport official had sighted the applicant’s Indonesian marriage book, being relevant information contained in folio 86 of departmental file BCC2014/2162535, which is a ‘client of interest note’, which recorded that: (i) the sponsor is married under Muslim faith to the applicant; (ii) the sponsor is the applicant’s second wife;[2] and (iii) the applicant’s Indonesian marriage book was sighted on her entry on 30 December 2013.
[2] This statement is incorrect. The applicant is the sponsor’s second wife.
On 30 April 2018, a delegate of the Minister made a certificate revoking the claimed s.376 certificate in this matter. This certificate relevantly stated that ‘the original certificate is invalid because it did not provide sufficient reasons for non-disclosure on “public interest” grounds’.
Subsequently, the matter was constituted to the presiding Member. The Tribunal notes that the applicant was represented in relation to this review by a different representative to when the matter was first before the Tribunal.
On 3 January 2020, the Tribunal sent a letter to the applicant inviting her to attend a hearing on 3 February 2020 to give evidence and present arguments. However, on 31 January 2020, the applicant requested that the hearing be postponed, and she provided medical evidence in support of the request. The Tribunal agreed to the request and postponed the hearing.
The Tribunal’s ability to re-list the matter for hearing was hindered by the disruption caused by the COVID-19 pandemic.
On 1 July 2020, the Tribunal wrote to the applicant about the effect of the COVID-19 pandemic on the progression of the Tribunal’s caseload, specifying that the Tribunal had identified that an in-person hearing was required to progress the review and informing that the Tribunal was unable to hold in-person hearings at the time. The letter stated that the Tribunal would contact the applicant when circumstances had changed, and an in-person hearing could proceed.
On 26 November 2020, the Tribunal sent a letter to the applicant inviting her to attend an in-person hearing on 18 December 2020 to give evidence and present arguments.
On 15 December 2020, the Tribunal wrote to the applicant to advise that, due to circumstances beyond the Tribunal’s control, the Member was unable to hold the hearing on 18 December 2020.
Subsequently, the matter was re-listed, and on 9 April 2021 the applicant appeared, in person, before the Tribunal to give oral evidence and present arguments. The Tribunal also received oral evidence, in person, from the sponsor and from the parties’ friends: Mr Miftahul Amin, Mr Oktavian Azis, Mr Andri Cahyadi, Mr Zulfikar Ali Reza and Mr Joko Purwantoro Suratman. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The representative also attended the in-person hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the time of application, the primary criteria to be satisfied are that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternate requirements set out in cl.820.211(2), (5), (6), (7), (8) or (9): cl.820.211(1).
The Tribunal has reviewed the applicant’s movement records which also detail her visa status at various times. The Tribunal is satisfied that, at the time of application, the applicant was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl.820.211(1)(a) is met.
The Tribunal shares the delegate’s view that cl.820.211(2) is the subclause relevant to the applicant’s circumstances. Accordingly, the issue for determination is whether, at the time of application on 1 September 2014, the applicant was the ‘de facto partner’, as that term is defined in s.5CB of the Act, of the sponsor.
As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:
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.
In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.
In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.820.221—a time of decision criterion—as well.
Whether, at the time of application, the parties were de facto partners and whether, at the time of decision, they are spouses
Clause 820.211(2)(a) and 820.221 require that, at the time the visa application was made and at the time of this decision, the applicant was and is the de facto partner or spouse or an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
The applicant claims that, at the time of application, she was the de facto partner of the sponsor and that, at the time of this decision, she is the spouse of the sponsor. A certified copy of the bio-pages of the sponsor’s Australian passport is on the Department’s file. On the basis of this evidence, the Tribunal is satisfied that the sponsor is an Australian citizen.
‘De facto partner’ is defined in 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).
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. This requirement is discussed later in these reasons for 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 husband and wife 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 whether, at the time of application, the applicant and the sponsor were in a de facto relationship and whether, at the time of this decision, they are spouses, 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 r.1.09A(3) and r.1.15A(3). These provisions are set out in an attachment to these reasons.
Each of the specific matters contained in r.1.09A(3) and r.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 spousal relationship, but not a de facto relationship.
It was submitted, in the written submissions of 27 January 2020, that, at the time of application on 1 September 2014, the applicant and the sponsor had ‘officiated their relationship through a religious ceremony called “Pernikahan” on 10 July 2008’, which was in accordance with Indonesian customs. At the hearing on 9 April 2021, the applicant gave credible oral evidence that they had ‘married’ each other in accordance with Islamic law on 10 July 2008. The Tribunal notes that there are two photographs on the Department’s file which appear to have been taken at this event. The applicant acknowledged that, at this time, the sponsor was legally married to his first wife. She explained that, when she and the sponsor married in accordance with Islamic law, the sponsor was not in an intimate relationship with his first wife. She told the Tribunal that the Indonesian legal system permitted a person to be married to more than one person.
The Marriage Law (No 1/1974) of Indonesia authorises polygamy.[3] Australian law does not permit polygamous marriage in Australia.[4] For the purpose of the Migration Act, only the first marriage in a polygamous situation may be recognised as valid in Australia given the operation of s 88D(2)(a) of the Marriage Act 1961 (Cth). Any marriage concurrent with the first marriage is incapable of being recognised as valid in Australia because at the time the marriage took place one of the parties was legally married to another person.
[3] See for example Nina Nurmila, Women, Islam and Everyday Life: Renegotiating polygamy in Indonesia (2009).
[4] Marriage Act 1961 (Cth) s.94.
In this review, the applicant submitted a copy of the divorce order made on 5 June 2018 by the Federal Circuit Court of Australia in respect of the sponsor’s marriage to his previous wife, Ms Dewi. The order effectively terminated the marriage on 6 July 2018.
On 11 January 2019, the applicant and the sponsor were married in accordance with Australian law in Altona North, Victoria. A copy of the ‘decorative’ Certificate of Marriage is on the Tribunal’s file. On the evidence, the Tribunal is satisfied that, at the time of this decision, the parties are married to each other under a marriage that is valid for the purposes of the Migration Act, as required by s.5F(2)(a).
Consideration of the r.1.09A(3) and r.1.15A(3) factors
As the factors in r.1.09A(3) and r.1.15A(3) are so similar, they will be discussed together in these reasons for decision.
In assessing these factors, the Tribunal has had regard to all documents on the Department’s file and the Tribunal’s file as well as to the oral evidence given at the hearings held on 27 July 2017 and 9 April 2021. The Tribunal notes that it has obtained and read the transcript for the hearing held on 27 July 2017 where a different Member of the Tribunal was presiding.
The Tribunal notes the written submission, made on 18 July 2017, that one of the reasons that, at the time of application, the applicant had submitted ‘lean’ evidence only in support of her claimed partner relationship with the sponsor was because she did not seek legal advice before making her application for the visa. The Tribunal acknowledges that, in this review, it has had the benefit of a greater volume of evidence than was before the delegate.
The Tribunal also acknowledges that, unlike the previous Member, in this review, the Tribunal has had the benefit of reviewing the transcript from the first hearing. A careful reading of the transcript compared with the Tribunal’s reasons for decision of 28 August 2017 shows that, on occasions, there has been what might be described as a ‘slippage’ between the oral evidence given and the description of that oral evidence in the reasons for decision.[5] The purpose in noting this is not to criticise the previous Member but rather to underscore that, in these reasons, the Tribunal’s findings of fact are taken from the evidence before the Tribunal at the time of this decision—including the transcript of the first hearing. Accordingly, a number of findings of fact in these reasons for decision differ from those contained in the previous Tribunal decision.
[5] For example, compare the statements in the previous Tribunal decision at paragraph 11, that ‘[t]he applicant could not remember if they informed other people of their relationship before the sponsor moved to Australia in 2008’ and ‘[t]he sponsor stated they were going out from March 2007, and at this point the sponsor’s first wife was pregnant and gave birth to his youngest child in November 2007’ with the record of the transcript of the oral evidence given.
Credibility
Before considering the factors listed in r.1.09A(3) and r.1.15A(3), the Tribunal considers it prudent to discuss the applicant’s and the sponsor’s credibility, or otherwise.
When the Tribunal considered this matter previously, the Tribunal found that the applicant had not provided reliable evidence in relation to whether the sponsor has an ongoing relationship with his first wife. The Tribunal’s assessment of the applicant’s credibility led the Tribunal to find that it was not satisfied that the sponsor and his first wife were no longer in a relationship and that it was not satisfied that the sponsor had a mutual commitment to the applicant to the exclusion of his first wife, at the time application or at the time of the decision on 28 August 2017.
The Tribunal (as it was then constituted) cited two examples that led it to question the applicant’s credibility. At paragraph 37 of the reasons, the Tribunal stated:
the applicant initially stated that she did not remember a conversation with an official at the Perth airport, and that she initially stated that she came to Melbourne with the sponsor two years prior to the sponsor’s first wife moving to Melbourne. The tribunal has considered that the applicant changed her evidence in relation to both these matters. The applicant proceeded to give evidence at the hearing and in subsequent submissions about the conversation she had with the official at the Perth airport. The tribunal accepts that the conversation occurred in 2012,[6] and the questions in the hearing may have reminded the applicant of the incident. The tribunal is not satisfied [the] applicant’s initial evidence about the times people moved to Melbourne was credible. The applicant subsequently stated to the tribunal that both she and the sponsor, and the sponsor’s wife and her child came to Melbourne in January 2015.
[6] This year is incorrect. The correct year is 2013.

In this section, the Tribunal considers both of these issues of concern for the previous Member. This section also considers the matter of the sponsor’s purported ‘divorce’ from his first wife in 2013 and the information put to the applicant in the s.359A letter of 3 August 2017, being that the sponsor gave oral evidence that his son did not know that he had divorced from the son’s mother (the sponsor’s first wife).
The discussion at Perth airport in December 2013
With respect to the first issue of concern, namely the applicant’s evidence with respect to her conversation with an officer at Perth airport, the Tribunal makes the following observations and comments.
The document at folio 87 of the Department’s file for the processing of the applicant’s application for a Subclass 820 visa is a screenshot titled ‘Client Additional Information Detail’. It is possible that this document is an ‘additional’ part of the main Client of Interest Note (contained in folio 86 and discussed later in these reasons). It relevantly states:
Perth Airport -On arrival at PAP 30/12/13 pax stated she intended to stay with her husband (under [M]uslim faith) and his first wife in Queensland. She was unclear how long her husband had been married to his first wife but knew they had 3 kids together. She sawould [sic] be living with husband, 1st wife and three kids. First wife’s name RETNA SITA DEWI [‘CID’ details omitted in these reasons]. This note recorded after follow up on pax showed she had lodged 820/801 app. No mutually exclusive as husband already married.
At paragraphs 18–19 of the reasons for decision of 28 August 2017, the Tribunal stated:
The applicant told the tribunal that in December 2013 she flew to Perth to stay with friends for a few days before flying to Cairns to visit the sponsor. She stated she did not remember having a discussion at Perth airport with officials.
The tribunal disclosed information provided to it under a s.376 certificate. The tribunal disclosed the information, and put it to the applicant pursuant to the s.359AA procedure. … The applicant had a short adjournment to discuss the information with her representative prior to responding to the invitation to comment or respond.
Overall, this is a broadly accurate summary of the oral evidence and process followed at the first hearing. However, the Tribunal has observed some ‘slippage’. For example, the transcript records the Member as having asked, ‘can you remember having a discussion at the Perth airport?’ and the applicant as having replied ‘[n]o’. The previous Member did not specifically ask the applicant whether she could recall having a discussion with an official at the Perth airport. This is important because the Member’s recollection was that the official had been mentioned. When the hearing resumed after the short adjournment, the Member stated the following to the then representative:
the last thing she said before I put this information to her under 359(a) [sic] [was] that she didn’t remember having a conversation with an official at the Perth Airport. I’m happy to listen and I accept that things can jog ones memory but it’s a little bit hard to not put aside credibility issues when that statement was made – I mean, I’m happy to go back and look at the report but that’s my notes of what she said to me just before I put the information to her.
Earlier, when the Member put the information in folio 87 to the applicant for comment pursuant to s.359AA, the Member had suggested that the information cast doubt on the applicant’s credibility, stating:
you have told me that [the sponsor] had divorced and not lived with his wife from February 2013 and yet, you are telling me (indistinct) the Perth Airport from December 2013 that he was living with his first wife and you were intending to go and join that (indistinct).
After the adjournment, the Member invited the applicant to explain what she recalled had happened at the Perth airport. The transcript records the following exchange.
INTERPRETER: So I arrived and Customs pick me and asked me what is the purpose of this visit? Why aren’t you flying direct to Cairns? Who pick you up here in this city? I told the person it’s my friend who is meeting down there. And then I was asked where I would live in Cairns. And I answered with my husband [the sponsor]. I was questioned whether [the sponsor] had a family. I said yes. I was questioned whether [the sponsor] had children and I answered yes. And I will live with [the sponsor].
MEMBER: You would live with him?
INTERPRETER: Yes.
MEMBER: Is that what you just said?
MS CABSARI: Yes.
INTERPRETER: He – the person checked my bank account and questioned me why there was money transferred (indistinct). And then I was welcome to pass on.
MEMBER: So why were you asked [the sponsor’s] first wife’s name?
INTERPRETER: Yes.
MEMBER: Why?
INTERPRETER: I don’t know.
It is unclear from paragraph 37 of the Tribunal’s previous decision (extracted above) whether, the Tribunal gave weight to the Tribunal’s finding that the applicant had changed her evidence after ‘initially stat[ing] she did not remember a conversation with an official at Perth airport’ in its assessment of her credibility or whether it fully ‘accept[ed] that this conversation occurred in 2012 [sic], and the questions in the hearing may have reminded the applicant of the incident’ and accordingly gave the issue no weight.
It is also unclear from the Tribunal’s reasons whether the Tribunal gave any weight to the applicant’s purported statement, as recorded in the ‘Client Additional Information Detail’ in folio 87, that ‘[s]he sawould [sic] be living with husband, 1st wife and three kids’. The Tribunal did not make clear findings in this regard, instead stating (at paragraphs 22–24):
The representative submitted the information disclosed pursuant to the certificate was not relevant because the information related to a time prior to the time of application, and prior to the time the applicant and the sponsor … claim they committed to their relationship to the exclusion of all others.
The representative also submitted that the applicant was not assisted by an interpreter at the Perth airport and therefore the recorded and disclosed information is unreliable. The tribunal accepts that if the applicant was not assisted by an interpreter, the reliability of her recorded answers may be queried. The representative submitted that the applicant instructed that she was interviewed by the officer at Perth airport and was asked why she came to Perth airport and did not fly directly to Cairns airport. As the applicant indicated she was not assisted by an interpreter, the tribunal will only consider the applicant’s evidence of what she was asked, what she understood and what she stated to the officer.
The applicant instructed her representative that she was asked why the sponsor transferred money to her, and she told the officer that the money was transferred to her by him because he was her husband. The applicant instructed her representative that she was asked if she knew the sponsor had a family and she told him yes and gave him the name of his wife and children and that she lived ‘the same with them in Cairns’. The applicant instructed her representative that it was a misunderstanding on the officer’s part to think that she meant she lived in the same house. After this the officer released her and she met her friend at Perth airport.
The Tribunal, as presently constituted, considers that no weight should be given to either issue when assessing the applicant’s credibility.
First, the Tribunal considers that no weight should be given to the applicant purportedly having changed her evidence because, as has been explained, she was not asked specifically whether she could recall having a conversation with an official at Perth airport. In the Tribunal’s view, the applicant did not change her evidence. Rather, this is a case where, once sufficient details of the earlier incident were put to the applicant for comment, the applicant was in a position to respond, and did so at her earliest opportunity.
Second, the Tribunal considers that no weight should be given to the statement in folio 87 of the Departmental file that records that, when the applicant was interviewed at Perth airport on 30 December 2013, the applicant had stated that she would be living with her husband, his first wife and their three children in Queensland. The Tribunal notes that, both at the first hearing2 and in written submissions following that hearing, the applicant denied having made this statement.
The written submissions of 23 August 2017 explain that the applicant’s then representative had asked the applicant to ‘carefully consider and think about the events which occurred at the Perth Airport’. The submissions set out the applicant’s statement that was said to have been provided to the representative in response:
when I arrived Perth on December 2012,[7] the officer asking me to follow him, and she asking me why you come to Perth not straight away to Cairns ? to visited my friends, why Diyan Zukifli transfer money to you ? because he my husband, You know Diyan Zukifli have family? yes, I know them and I told him the name, her wife and name her children, and I live same with them in Cairns (I think make the officer think that I live same house with them). Who pic up you? my friends know she waiting for me in down there, and the officer let me go.
[7] This year is incorrect. The correct year is 2013.
In addition to the submissions that were detailed in the extract from paragraphs 22–24 of the first Tribunal decision above, the Tribunal notes that the submissions also urged the Tribunal to consider the extent of the applicant’s reliance on the interpreter at the first hearing, as this, as well as her ‘improper use of gender to identify her partner’ was said to evidence her limited ability in the English language.
The Tribunal accepts all the written submissions that were made in respect of this issue. The Tribunal found the applicant to be credible and accordingly accepts her explanation that the official at the Perth airport may have misunderstood the meaning the applicant intended to convey. In the Tribunal’s view, the adverse information contained in folio 87 is not a reason or a part of a reason to affirm the decision under review.
The date/s on which the applicant, the sponsor and the sponsor’s first wife moved to Melbourne
The previous Member’s second issue of concern with the applicant’s oral evidence—and an area of concern for the previous Member with respect to the sponsor too—concerned the oral evidence given at the first hearing about the date/s on which the applicant, the sponsor and the sponsor’s first wife moved to Melbourne. The Tribunal makes the following observations and comments about this matter.
At paragraphs 16 and 17 of the reasons for decision of 28 August 2017, the Tribunal stated:
The applicant stated that they now live in Melbourne. She told the tribunal that she and the sponsor moved to Melbourne in January 2014. She stated the sponsor’s first wife and children also live in Melbourne now, and they moved to Melbourne in 2016. In answer to questions from the tribunal, the applicant stated she had given wrong answers, and that she and the sponsor had moved to Melbourne in January 2015, and the sponsor’s first wife had also moved in January 2015.
The sponsor told the tribunal that he and the applicant moved to Melbourne in January 2015, and his first wife moved to Melbourne in February 2016. He stated in January 2015 they were still in Cairns.
Later, at paragraph 31, the Tribunal stated:
The tribunal has considered the evidence of the applicant who originally stated she and the sponsor moved to Melbourne in January 2014 and the sponsor’s first wife moved to Melbourne in 2016. When asked by the tribunal that if it checked with the electoral roll if those dates would be correct, the applicant then changed her evidence and stated that they all moved to Melbourne in January 2015. The sponsor stated that the applicant and sponsor moved to Melbourne in January 2015 but his first wife did not move until 2016. The tribunal finds the evidence of both the applicant and sponsor in relation to when the applicant, sponsor and the sponsor’s first wife moved to Melbourne was evasive. The tribunal finds that the applicant and sponsor and sponsor’s wife and her child all moved to Melbourne at the same time. The tribunal finds that this suggests an ongoing relationship between the sponsor and his first wife.
The transcript records the discussion between the then presiding Member and the applicant about this matter as follows.
MEMBER: And where does … his first wife and children live?
INTERPRETER: Are you asking now?
MEMBER: Yes.
INTERPRETER: Brooklyn. In Brooklyn.
MEMBER: So they moved to Melbourne as well?
INTERPRETER: Yes.
MEMBER: When did that happen?
INTERPRETER: 2016. I think 2016.
MEMBER: So if I looked up the electoral roll I won’t find that they moved here in 2014?
INTERPRETER: But the first child already live in this city for a long time.
…
MEMBER: So if I looked up the electoral roll I won’t find that they’ve lived in Melbourne since 2014?
INTERPRETER: Yes.
MEMBER: I won’t find that?
INTERPRETER: What do you mean?
MEMBER: You’re saying that they moved here in 2016 (indistinct)[8] in 2014. If check the electoral roll will it confirm that?
[8] It is possible that the omitted word is ‘not’.
INTERPRETER: Correct. 2015. January 2015. So I am questioning about his wife and three children where they were in Melbourne 2014. Yes. One already move, the others – the rest were still in Cairns. [Emphasis added]
The Tribunal considers that it is possible that the underlined text was stated by the interpreter as a query to the previous Member. In any event, it does not matter if this was the case or not as the Tribunal considers that the most accurate statement that can be made of the applicant’s oral evidence from this entire extract, particularly from the text in bold type, is that, in 2014, the applicant’s first wife and his two younger children were living in Cairns as the sponsor’s eldest child had moved earlier.
The Tribunal finds that the applicant did not understand the previous Member’s continued questioning about checking the electoral roll. Accordingly, the Tribunal considers that it is unclear what the applicant meant when she referred to ‘January 2015’ in the final paragraph. It is possible that the applicant thought that the Member was asking about the electoral roll with respect to the sponsor—not the sponsor’s first wife—and that the reason the applicant stated ‘January 2015’ was because that is when she and the sponsor claim to have moved to Melbourne. This interpretation appears to be supported by the discussion that followed soon afterward at the first hearing.
MEMBER: So when you said that you moved to Altona in January 2014, you actually mean you moved here in January 2015?
INTERPRETER: Yes.
MEMBER: So let me get this straight. You told me just before that you moved to Melbourne in January 2014.
INTERPRETER: I was wrong.
MEMBER: Yes. And you told me that [the sponsor] first (indistinct)[9] moved to Melbourne in 2016 and then you corrected it and said it was January 2015. (indistinct) January 2015.
[9] It is possible that the omitted word is ‘wife’.
INTERPRETER: Yes.
The previous Member appears to have relied on the final two paragraphs above when recording the applicant’s oral evidence as being that ‘the sponsor’s first wife had also moved [to Melbourne] in January 2015’.
In this review, the Tribunal takes a different view to the previous Member. The Tribunal, as presently constituted, considers that the applicant’s oral evidence above cannot be said clearly to be that ‘the sponsor’s first wife had also moved [to Melbourne] in January 2015’. This is because the Tribunal is concerned that the applicant did not fully understand all the questions asked. As has been noted, the Tribunal has found that the applicant did not understand the previous Member’s continued questioning about checking the electoral roll. In addition, the Tribunal is concerned that the applicant may not have correctly understood the previous Member’s oral summary of the evidence (in the penultimate paragraph in the extract above) before she agreed with it. The first of the two extracts above evidences that, earlier, when asked, ‘if I looked up the electoral roll I won’t find that they’ve lived in Melbourne since 2014?’, the applicant had answered in the affirmative before then asking what was meant by this and a follow up question. The Tribunal is concerned that the applicant may have been confused by the questions, especially since she was asked about a number of different people’s movements in what may be described as a variable manner.
It will be recalled that the previous Member considered that the applicant’s oral evidence in respect of this issue was evasive. The Tribunal, as presently constituted, takes a different view. The Tribunal considers that the applicant sought to answer all of the Tribunal’s questions. She sought to tell the Tribunal both when she was unsure of her answer (regarding the date the sponsor’s first wife moved to Melbourne, ‘I think 2016’) and also when she had realised that an earlier answer was incorrect (regarding January 2014 being the date that she and the sponsor had moved to Melbourne, ‘I was wrong’, and that it was in January 2015).
The Tribunal considers that it is also helpful to outline the discussion at the first hearing between the previous Member and the sponsor about the date/s on which the applicant, the sponsor and the sponsor’s first wife moved to Melbourne. The transcript records the discussion as follows.
MEMBER: When did you move to Melbourne?
[THE SPONSOR]: To Melbourne I think it’s 2015, the first week January (indistinct). I’m not sure.
MEMBER: When did your first wife and the children move to Melbourne?
[THE SPONSOR]: I don’t know. I forgot because my son is ---
MEMBER: Think very carefully. When did your first wife and your son move to Melbourne? And as I suggested to Ms Cabsari if I look up the electoral roll when would I find out when she (indistinct) Melbourne? (indistinct) change from Queensland to Melbourne?
[THE SPONSOR]: I move Melbourne (indistinct) January 2015. I don’t remember.
MEMBER: I suggest you moved at the same time. Don’t talk to him please.
[THE SPONSOR]: February 2016. Yes, I think so.
MEMBER: So she didn’t come down – you didn’t see your son for over a year?
[THE SPONSOR]: I always ring him.
MEMBER: Ms Cabsari stated that, in fact, they also moved down in January 2015, what do you say about that?
[THE SPONSOR]: No, because 2015 February they’re still in Cairns. Still in Cairns.
MEMBER: When are they still in Cairns?
[THE SPONSOR]: Pardon?
MEMBER: When do you say they were still in Cairns?
[THE SPONSOR]: In 2015 January.
MEMBER: In January 2015 they were still in Cairns?
[THE SPONSOR]: Yes, they’re in Cairns.
MEMBER: When do you say they moved?
[THE SPONSOR]: Moved to Melbourne?
MEMBER: Yes.
[THE SPONSOR]: 2016. February.
Similar to the case with the applicant’s oral evidence, the previous Member considered the sponsor to be evasive in this oral evidence. The Tribunal takes a different view to the previous Member. The Tribunal considers that the sponsor sought to answer all of the Tribunal’s questions. Overall, the Tribunal considers that the sponsor gave clear and consistent oral evidence that he had moved to Melbourne in January 2015. When first asked when his first wife had moved to Melbourne, he told the Tribunal that he was unsure. It may be that someone else in the hearing room prompted him that his first wife and child/ren moved to Melbourne in February 2016; it is unclear from the transcript. Notwithstanding, thereafter the sponsor gave clear and consistent oral evidence that his first wife and son moved to Melbourne in February 2016—not in January 2015, as the Member stated that the applicant had said.

The Tribunal notes that the applicant and the sponsor have given consistent oral evidence that they moved to Melbourne in January 2015. There is some documentary evidence in support of their claim. The bond receipt issued by the Victorian Residential Tenancies Bond Authority in respect of the first of the two properties they claim to have lived at in Altona North evidences both the applicant and the sponsor as tenants and that the bond was received by the Authority on 12 January 2015. In addition, the statement for the joint bank account for the period 31 December 2014 to 30 June 2015, which is addressed to both parties, is addressed to them at the first property in Altona North.
The Tribunal also notes that, at first, the applicant gave oral evidence that she thought that the sponsor’s first wife had moved to Melbourne in 2016. As has been noted, the sponsor maintained that this was the correct date, even when challenged by the previous Member. The Tribunal notes a statement for a bank account ending in the numbers 378. This statement is addressed to both the sponsor and the sponsor’s first wife at an address in Parramatta Park (a suburb of Cairns), Queensland and is for the period 1 February 2016 to 26 February 2016. This could be seen as evidence to corroborate the parties’ claim that the sponsor’s first wife had moved from Cairns to Melbourne in 2016.
In view of all the evidence that is before the Tribunal, the Tribunal takes a different view to the previous Member about the parties’ oral evidence about the date/s on which the applicant, the sponsor and the sponsor’s first wife moved to Melbourne. The Tribunal acknowledges that it did not hear the applicant and the sponsor give their oral evidence in person at the first hearing, but having read the transcript of that evidence, the Tribunal considers that neither the applicant or the sponsor was evasive in giving their oral evidence about the date/s on which the applicant, the sponsor and the sponsor’s first wife moved to Melbourne. Rather, the Tribunal takes the view that the parties could be seen to have given consistent oral evidence which is corroborated by documentary evidence that they submitted prior to the previous Member making the decision to affirm the decision not to grant the applicant a Partner visa. In the Tribunal’s view, the applicant’s and the sponsor’s oral evidence about the date/s on which the applicant, the sponsor and the sponsor’s first wife moved to Melbourne is not a reason to question or doubt their credibility. To the contrary, the Tribunal finds that they gave consistent and credible oral evidence about these matters. In the Tribunal’s view, this information is not a reason or a part of a reason to affirm the decision under review.
The sponsor’s purported ‘divorce’ from his first wife in 2013 and the s.359A information
When considering the parties’ credibility, it is important to also consider the matter of the sponsor’s purported ‘divorce’ from his first wife in 2013 and the information put to the applicant in the s.359A letter of 3 August 2017. The Tribunal makes the following observations and comments.
In the applicant’s record of responses for the Application for migration to Australia by a partner, she declared the sponsor’s marriage to Ms Dewi ended on 1 February 2013.
The transcript of the first hearing evidences that the applicant made a number of references to the sponsor’s ‘divorce’ from his first wife. The applicant gave oral evidence that she had moved to Australia before the sponsor had divorced his wife and that the sponsor had stopped living with his wife and children in February 2013, ‘after his divorce’. The Tribunal is mindful that the applicant’s oral evidence was given in the Indonesian language and interpreted by an accredited interpreter. It is possible that the applicant meant ‘separation’ rather than a divorce according to law. It is also possible that she may have meant a ‘divorce’ according to Islam. No submissions or evidence were provided about these matters. In these circumstances, the applicant’s purported use of the word ‘divorce’ with respect to the sponsor and his first wife, years before the divorce order of 5 June 2018, does not cause the Tribunal to question the applicant’s credibility.
There is no clear evidence in the transcript that, at the first hearing, the sponsor used the word ‘divorce’ when giving his oral evidence. There is one part of the hearing where the word may have been used. Before concluding the hearing, the then presiding Member asked the sponsor whether there was any other oral evidence that he wanted to give. The transcript records the following exchange in response to this invitation.
[THE SPONSOR]: Look, the thing is because I have my – when we live together like me and my first wife we live almost 24 years old, yes, (indistinct) sometime I say something, you know, happened. One thing I have my son, I have to think about my son (indistinct), you know, I don’t want – because he has (indistinct) I don’t want impact of his – from his life. I don’t want to he upset because I have my – I have my sister, he has children, he has one son (indistinct) husband sometimes upset. (indistinct) my son. I want my son upset about me.
MEMBER: Sorry, you don’t want your son upset about you (indistinct)?
[THE SPONSOR]: If he – if he knew that I was with his mum he will be upset.
MEMBER: Okay.
[THE SPONSOR]: Psychology.
MEMBER: His?
[THE SPONSOR]: Psychology.
The person who prepared the transcript found that a number of words were not sufficiently audible in the audio recording and thus they described them as being ‘indistinct’. It is possible that, at the first hearing, the word ‘divorce’ was used in one or more places marked as ‘indistinct’ in the transcript. The Tribunal makes this suggestion because, on 3 August 2017, the Tribunal sent the applicant a letter pursuant to s.359A of the Act which detailed the particulars of the information as follows:
In his oral evidence in the hearing the sponsor stated that his son did not know that he had divorced from the son’s mother (the sponsor’s first wife). The sponsor stated he did not want his son to know he was divorced from the mother as the son would be upset, and the sponsor had to look after the son’s psychology.
The letter continued:
This information is relevant to the review because the evidence is that the sponsor lets his son believe that he is still married to the son’s mother, and therefore suggests the sponsor lives with the son and his mother as a family at least some of the time.
If the Tribunal relies on the evidence of the sponsor it would not be satisfied that you [the applicant] and the sponsor have a mutual commitment to a shared life to the exclusion of all others. This would be a reason or part of the reason for affirming the decision under review.
Again, the Tribunal notes that there has been some ‘slippage’ between the oral evidence given and the description of that oral evidence in the s.359A letter. This is explained further below.
On 17 August 2017, the applicant’s then representative submitted that the Tribunal had taken the sponsor’s oral evidence out of context and had thus derived an inference—being that, at least some of the time, the sponsor lives with his son and his son’s mother as a family—which is not accurate in fact.
The representative submitted that the sponsor was not divorced to his first wife. The submissions also contained the statement that it was ‘true in fact that the son does not know the sponsor is not divorced to his ex-wife’.
It was also submitted that the sponsor had been honest and frank with the Tribunal; that the sponsor and his first wife had mutually dissolved their relationship so were not ‘at war’ with each other; that the sponsor and his first wife were committed to protecting their children’s emotional well-being and that the sponsor visits his child frequently, including at his first wife’s home. The submissions recounted the sponsor’s and his first wife’s reasons for taking this approach, stating that these had been explained in the hearing as:
- The sponsor[’]s sibling had separated from his partner and their children suffered severe emotional stress which negatively impacted upon all aspects of the child’s life including social, education and mental well-being.
- Because of the sponsors [sic] witnessing the effects upon his nephew he had chosen to take a different approach with an aim to protect his children’s well-being to aid positively in the children’s growth and development.
On 23 August 2017, the representative submitted further written submissions which stated that there was no ‘real’ evidence supporting the inference that, some of the time, the sponsor resides with his first wife and child as a family. It was submitted that, to the contrary, ‘there is an overwhelming amount of real evidence which supports the existence of a de facto relationship’ between the applicant and the sponsor. On 24 August 2017, statutory declarations made by the sponsor and Ms Dewi were also submitted. Each declared, amongst other things, that they had separated permanently, with no plans to resume the relationship and that the sponsor’s purpose in visiting Ms Dewi’s house was so that he could visit their son.
The Tribunal’s reasons for decision of 28 August 2017 outline the previous Member’s consideration of the submissions and statutory declarations. The Tribunal stated that it found the particular submissions that ‘it is true in fact that the sponsor is not divorced from his ex-wife’ and ‘it is true in fact that the sponsor’s son does not know that the sponsor is not divorced from his ex-wife’ to be implausible. The Tribunal explained, ‘if the sponsor and his first wife are not divorced, there is no necessity to protect the child from finding out his parents are divorce[d]’. The Tribunal explained that it had also considered whether the sponsor had meant that he did not want his son to know that he was separated from his first wife. However, the Tribunal found that the sponsor had given evidence that he does not want his son to think that he is divorced from the son’s mother, because he does not want his son to be upset, or for the divorce to affect him psychologically. The Tribunal found that this, and other evidence detailed in the decision, indicated that the applicant and the sponsor do not have a mutual commitment to a shared life to the exclusion of all others, as the sponsor has maintained a relationship with his first wife during the relationship with the applicant and with her knowledge. The Tribunal also stated that it was not satisfied that the sponsor only visits his first wife for the purposes of maintaining his relationship with his son.
In this review, the Tribunal takes a different view of the evidence and makes different findings.
The Tribunal is not prepared to find that, at the first hearing, the sponsor gave oral evidence that he does not want his son to think that he is divorced from the son’s mother, because he does not want his son to be upset, or for the divorce to affect him psychologically. This is for three reasons.
First, the Tribunal considers the sponsor’s oral evidence, as expressed in the transcript, is incoherent. The sponsor may have been agitated when giving his oral evidence or his broken sentences may have stemmed from English not being his first language, or perhaps both. The use of the word ‘indistinct’ in so many places adds further complexity in seeking to understand the sponsor’s words.
Second, the Tribunal is mindful of the ‘slippage’ between the sponsor’s literal statement, ‘if he knew that I was with his mum he will be upset’ which has the opposite meaning of the statement given in the s.359A letter that ‘he did not want his son to know he was divorced from the mother as the son would be upset’.
The Tribunal notes that the sponsor has long claimed that he did not divorce his first wife before committing to the applicant because of his concern for his youngest son’s welfare. For example, the sponsor made an undated, typed statement to the same effect which is on the Department’s file. The previous Member referred to this statement—the so-called ‘statement of not divorce’—in the Tribunal decision. This may be why the Tribunal particularised the information in the s.359A letter in the way that it did.
Notwithstanding, the Tribunal is not prepared to make the finding (outlined above) because the sponsor’s oral evidence was not sufficiently clear.
Third, as has already been noted, the Tribunal cannot be sure that the sponsor used the word ‘divorce’.
The Tribunal prefers the sponsor’s written evidence, in his ‘statement of not divorce’. In that statement, the sponsor explains the length of his previous relationship, alludes to the reasons for the breakdown of the relationship (including, ‘I found another women to fulfill my life’) and states that he and his previous wife had separated but not divorced. Amongst other things, he stated:
I didn’t get divorced because I have small children’s and I didn’t want to make stress full, situation with my ex-wife, my children. It’s very hard to make “Divorce” detition, but I have to do it. I have no immediate plants to get divorce, but will at some time in the future because of psylogical aspect to my child. [All errors in the original]
On the basis of this evidence, the Tribunal finds that it is likely that the sponsor had intended, at the first hearing, to convey a similar statement, that is, that he was not divorced from his first wife because he was concerned about the psychological effect of a divorce on his child. The Tribunal considers it prudent to have regard to cultural considerations in this regard. The sponsor’s statement that a divorce petition was ‘very hard’ gives some indication of how divorce may be viewed within Indonesian culture.
The Tribunal also accepts the submissions—and the sponsor’s oral evidence extracted above, to the extent that it can be made out—that the sponsor had witnessed the negative effect of divorce on his sibling’s child/ren. The sponsor gave oral evidence to similar effect at the second hearing.
The Tribunal also accepts the statements made in the sponsor’s and Ms Dewi’s statutory declarations, including that they are no longer in a relationship and that they have not lived together since February 2013.

100. In these circumstances, the Tribunal considers that it cannot find that the sponsor’s oral evidence at the first hearing, as extracted above, supports the inference that, at least some of the time, the sponsor lives with his son and his son’s mother as a family.
The Tribunal’s conclusion on the applicant’s and the sponsor’s credibility
101. Having had the benefit of hearing the applicant’s and the sponsor’s oral evidence over the course of an in-person hearing of three and half-hours’ duration on 9 April 2021, the Tribunal finds both persons to be credible.
The financial aspects of the relationship
102. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.
103. At the hearing on 9 April 2021, the applicant told the Tribunal that, when she had been living in Indonesia, she had worked.[10] She told the Tribunal that, at the time of application on 1 September 2014, she had not been working[11] and that the sponsor had financially supported her. She told the Tribunal that, at the time of the second hearing, she was working at a named pizza restaurant in a named location where she was paid cash.
[10] The Form 80 that was submitted suggests that she worked in accounting.
[11] The Tribunal notes that the applicant had held a Visitor visa prior to making her application for the visa which was subject to condition 8101 (the holder must not engage in work in Australia).
104. She said that, at the time of application, the sponsor had been working as a chef and that, at the time of the second hearing, the sponsor was working as a chef in catering. She could not recall the name of his employer at the time of application. However, she recalled that they had been living in Cairns in 2014 and that the sponsor had had a permanent job. She also could not quite recall the exact name of his new employer, explaining that he had started in the role around a week before the hearing. The applicant told the Tribunal that, before starting this role, the sponsor had worked at the Pegasus Hotel before being made redundant. The Tribunal has no concerns about the applicant’s inability to name the sponsor’s employer at the time of application or his new employer at the time of the second hearing. In both cases, the Tribunal considers the applicant’s inability to give precise details to be reasonable in the circumstances. The Tribunal is mindful that the applicant applied for the visa well over six years prior to the second hearing and that, at the time of the second hearing, the applicant had started a new role very recently.
105. The sponsor gave broadly consistent oral evidence at the hearing on 9 April 2021. He told the Tribunal that he had recently started a new job as a chef in a hospital (part of a named health service). He said that, previously, he had worked at the Pegasus Hotel but that he had been made redundant. When asked whether the applicant worked, the sponsor was keen to discuss her charity work at the mosque but, when prompted about the work at the pizza restaurant, he was able to name the establishment and said that she only worked there a couple of days.
106. Both the applicant and the sponsor gave consistent oral evidence that there was no joint ownership of real estate or other major assets or any joint liabilities. The applicant explained that they did not own land together in either Indonesia or Australia and that they had no joint loans or joint credit cards. She explained that this had also been the situation at the time of application. The Tribunal accepts the parties’ oral evidence. There is no evidence before the Tribunal of any joint ownership of real estate or other major assets or any joint liabilities, either at the time of application on 1 September 2014 or at the time of this decision.
107. The parties’ main joint asset appears to be their joint bank account with the Commonwealth Bank, ending in the number 013. The applicant told the Tribunal that, at the time of application, they had had this account as they had opened it earlier. When asked why they had opened the account, the applicant gave oral evidence that it was so they could conveniently pay for their living expenses. When asked the same question, the sponsor said words to the effect, ‘what I have, she gets. Nothing hidden’.
108. The applicant submitted documentary evidence in respect of this bank account, including:
·a statement for the period 27 March 2014 to 30 June 2014, in both names and addressed to them both at a property in Williams Esplanade, Palm Cove, Queensland;
·a list of transactions for this account for the period 30 June 2014 until 28 August 2014, which the Tribunal notes was just prior to when the applicant lodged her application for the visa;
·a statement for the period 1 July 2014 to 30 December 2014, in both names and addressed to them both at a property in Newell Street, Bungalow (a suburb of Cairns), Queensland;
·a statement for the period 31 December 2014 to 30 June 2015, in both names and addressed to them both at a property in a named street in Altona North, Victoria (the first property in Altona North); and
·a statement for the period 31 December 2016 to 30 June 2017, in both names and addressed to them both at a property in a named street in Altona North (the second property in Altona North).

109. With respect to any pooling of financial resources and any sharing of day-to-day household expenses, throughout the period of the Department’s consideration of the applicant’s application for the visa and in this review, the applicant and the sponsor have maintained that they pool their finances and share their household expenses, as required.
110. The Tribunal notes that, in the sponsor’s undated, handwritten statement which is on the Department’s file, he stated that he was the head of the family and that he supported the applicant, even when she had been living in Indonesia and when she needed assistance to pay her car loan and to fix her house. He also stated that the applicant had supported him, stating, ‘when I received big bill, and that time I had no money, she gave me the money to pay bill’. He said that this was ‘only one or two examples’ and that it was ‘all about supporting each other’.
111. The applicant provided documentary evidence of bank transfers each month from August 2013 until, and including, July 2014. The applicant’s movement records evidence her as being offshore and onshore at various times during the period from August 2013 to July 2014.[12] A series of screenshots was provided to the Department evidencing, on each occasion, the transfer of $1,000 or more from an account ending in the number 880 to an account ending in 378. In almost all cases, the message was ‘Diyan Zukifli (Trivera)’. The delegate was critical of this evidence, stating:
You and your sponsor have provided account movement detail records showing money being transferred to your account. I give limited weight as there is no evidence to confirm the other account belonged to your sponsor.
[12] The applicant entered Australia on 30 December 2013; departed Australia on 29 March 2014 and re-entered on 1 June 2014.

112. Both the delegate and the applicant’s former representative, in his submissions of 18 July 2017, assumed that the transfers were from the sponsor to the applicant.
113. The applicant’s former representative, in submissions dated 18 July 2017, sought ‘to address the deficiency raised in the decision record’ with respect to the account ending in 378. A copy of a statement for this account for the period 1 February 2016 to 26 February 2016 was provided. This statement is addressed to both the sponsor and Ms Dewi at an address in Parramatta Park (a suburb of Cairns), Queensland. It was submitted that:
the account in question was an account which was formed with the sponsor and his ex-wife during their marriage. After separation, 01 February 2013 the sponsor assumed total and sole control over the said account despite it being in joint names. The sponsor’s ex-wife … has declared the same.

114. In her statutory declaration made on 19 July 2017, Ms Dewi declared that she had not used the bank account ending in the numbers 379[13] ‘since February 2013, when I was end with Diyan Zukifli’.
[13] The account number given in Ms Dewi’s statutory declaration ends in a ‘9’ rather than an ‘8’ but all other numbers in the account match those in the bank statement of 1 February 2016 to 26 February 2016 (and in the series of screenshots). In the circumstances, the Tribunal finds that Ms Dewi made an inadvertent error when transcribing the full bank account number.
115. The Tribunal has reason to believe that the transfers evidenced in the series of screenshots may have been from the applicant to the sponsor—not from the sponsor to the applicant. This is because the applicant had also submitted, to the Department, a copy of a statement for the same bank account ending in the number 880, held in the applicant’s name, showing the account balance as at 30 November 2011.[14] The transfers evidenced in the series of screenshots each month from August 2013 until, and including, July 2014 were from the account ending in the number 880 (the applicant’s account) to an account ending in 378 (the account which had been the joint bank account between the sponsor and his previous wife but which it is claimed that the sponsor used solely from February 2013).
[14] This statement evidences the deposit of $1,600 by the sponsor into the applicant’s account on 3 November 2011; a matter given no weight by the delegate because the applicant had claimed, in her application for the visa, that the parties had not committed to a shared life together until 1 June 2013.
116. It will be recalled that the applicant gave oral evidence that she had worked while living in Indonesia and, as noted above, the sponsor made a written statement that the applicant had given him money to pay a ‘big bill’. Given the timing of these bank transfers, it is possible that the sponsor needed the monies as a property settlement between the applicant and his first wife.
117. Alternatively, it is also possible that both the applicant and the sponsor used the account ending in 880 and that funds were transferred from the account as required.
118. The Tribunal did not ask the parties about these monies. This is because, in this case, where the Tribunal found both the applicant and the sponsor to be credible people, the Tribunal did not consider it necessary for it to enquire into or know the reasons for the transfers.
119. The applicant told the Tribunal that, at the time of application on 1 September 2014, when they had been living in Cairns, some of the sponsor’s salary had been deposited into their joint account. She also noted that, sometimes, the sponsor had been paid cash. It will be recalled that she told the Tribunal that she had not been working at this time and that the sponsor had financially supported her ‘100%’.
120. The sponsor gave oral evidence that he viewed it as his role as the man to share everything he earns with the applicant. He also told the Tribunal that he has provided for the applicant’s family.
121. The sponsor told the Tribunal that he viewed the applicant’s income from her work at the pizza restaurant as ‘her money’. However, the applicant told the Tribunal that, sometimes, she put some of her earnings from the pizza restaurant into the joint bank account.
122. The Tribunal notes the bank statements that have been submitted from earlier in the parties’ claimed relationship which corroborate the claims that the sponsor’s salary was deposited into the joint bank account. While bank statements were not submitted for more recent periods, the Tribunal understands from the representative’s oral submissions that they could be submitted if required by the Tribunal. Having found both the applicant and the sponsor to be credible persons, the Tribunal did not consider it necessary to view recent bank statements.
123. Based on the evidence, the Tribunal finds that, at the time of application, the applicant and the sponsor pooled their financial resources and that they continue to do so at the time of this decision.
124. With respect to any sharing of day-to-day household expenses, the applicant told the Tribunal that the sponsor pays for their bills and that they had a flexible approach for paying for the groceries, with the sponsor buying them sometimes and her buying them at other times. The Tribunal notes that the applicant submitted a number of bills from a named energy provider for gas (including in January 2017 and December 2019) and electricity (including in December 2016 and May 2017). All of these bills are addressed to both the applicant and the sponsor at the second Altona North property. The Tribunal has viewed the transactions listed in the bank statements that were submitted. It is clear that the joint bank account was used frequently for various day-to-day household expenses such as utilities (including payments to their provider of gas and electricity), petrol, pharmacy items, food and so on. Based on the evidence before it, the Tribunal finds that, at the time of application, the applicant and the sponsor shared their day-to-day household expenses and that, at the time of this decision, they continue to do so.
125. With respect to whether one person in the relationship owes any legal obligation in respect of the other, the applicant gave oral evidence that neither party had a will. She said that only her husband had superannuation and she told the Tribunal that the sponsor had nominated her as his beneficiary to receive 100%. The Tribunal notes and give some weight to the corroborating documentary evidence, dated 22 January 2020, that was submitted in support of this claim. The Tribunal has no reason to suspect that the sponsor has changed his nomination since that time. The Tribunal accepts the evidence in respect to whether one person in the relationship owes any legal obligation in respect of the other.
126. The Tribunal gives weight to the evidence of the financial aspects of the relationship.
The nature of the household
127. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.
128. The evidence before the Tribunal is that the sponsor has three children from his previous relationship with Ms Dewi. At the hearing on 9 April 2021, the applicant correctly named the sponsor’s three children, but she said that she was unsure of their respective ages, explaining that she was not close to them. She told the Tribunal that the sponsor’s children had met her and do not like her. She wept when giving this oral evidence.
129. The sponsor named his children and gave their ages at the time of the second hearing. The Tribunal notes that his older son and daughter are both adults in their 20s and that his younger son is 13 years of age. The sponsor said that he had not lived with his children for years. He said that his eldest son lives independently in Melbourne, that his daughter lives in Brisbane and that his younger son lives with the child’s mother.
130. In view of all the evidence before the Tribunal, the Tribunal finds that, while the applicant has met the sponsor’s children, at the time of application and at the time of this decision, there has not been and there is not any joint responsibility between the applicant and the sponsor to care for and support the three children.
131. The applicant and the sponsor have consistently claimed that, at the time of application, they lived together, and at the time of this decision, they continue to do so.
132. At the hearing before the previous Member, the sponsor explained that the applicant had visited him in Australia on three separate occasions before her trip to Australia where she lodged the application for the Partner visa. The applicant’s movement records evidence that she arrived in Australia on 25 October 2012 and departed on 10 January 2013 (the first trip); next arrived in Australia on 20 April 2013 and departed on 9 July 2013 (the second trip); next arrived in Australia on 30 December 2013 and departed on 29 March 2014 (the third trip) before next arriving on 1 June 2014 and lodging her application for the Partner visa on 1 September 2014 (the date her Subclass 600 Visitor visa was due to cease).
133. At that first hearing, the applicant gave oral evidence that she and the sponsor had lived in two properties in Queensland together, being a property in Williams Esplanade and one in Newell Street, and then two different properties (she gave the street names) in Altona North in Melbourne. The sponsor was not asked to give these details at that hearing but, in the course of giving his oral evidence, he told the Tribunal that he and the applicant had lived in Williams Esplanade, Palm Cove and the two different properties in Altona North.
134. At the hearing before the Member currently presiding, the Tribunal asked the parties about their living arrangements during the course of their relationship. The applicant told the Tribunal that they had first lived together in Indonesia, following their Islamic marriage on 10 July 2008. She explained that, following the Islamic marriage, she had come to Australia on a number of occasions as the holder of a Visitor visa so that she could spend time with the sponsor. She explained that, on each occasion, she had been permitted to stay in Australia for three months only before being required to return to Indonesia. She said that on her first visit to Australia, she and the sponsor lived together in an apartment that the sponsor had rented in front of the sea at Palm Cove in Queensland. She said that only the two of them had lived in the apartment. She gave oral evidence that, on each subsequent trip, it had been the two of them only who had lived together. She told the Tribunal that they had established a home together in Newell Street in Cairns, and then the two different properties in Altona North in Melbourne. (She gave the street names for the properties in Altona North). She said that, at the time of the hearing, it was only her and the sponsor living in their current property in Altona North but that in the past, some others had shared the home with them, notably Mr Reza, one of the witnesses at the hearing.
135. The sponsor gave broadly consistent oral evidence. He told the Tribunal that they had lived together in Indonesia but said that it had been for ‘a while’ only. He said that it had been the two of them only living together at the property in Newell Street, Cairns. He said that, when they had lived in the first property in Altona North, his eldest son had lived in the property with them as well. He said that, at the time of the hearing, it was him and the applicant only who were living in the second property in Altona North.
136. The applicant provided a number of documents to corroborate the claimed living arrangements of the persons at the time of application (Newell Street) and at the time of this decision (the second property in Altona North) and at various times between these points. In addition to the bank statements and utility bills which were mentioned earlier, the applicant submitted other documentary evidence to corroborate their claimed living arrangements, including copies of two bond receipts issued by the Victorian Residential Tenancies Bond Authority in respect of the two properties in Altona North. In each case, both the applicant and the sponsor were listed as the tenants.
137. The Tribunal notes that, at the second hearing, Mr Reza gave detailed oral evidence that he had lived with the applicant and the sponsor at the second property in Altona North for around one and a half years from 2018 until after 2019. He told the Tribunal that the property had two bedrooms and that he and his wife lived in one room and that the applicant and the sponsor lived in the other bedroom.
138. In view of all the evidence before the Tribunal and the Tribunal’s finding that the applicant, the sponsor and Mr Reza are credible persons, the Tribunal accepts the applicant’s and the sponsor’s claims about their joint living arrangements throughout the course of their relationship.
139. With respect to any sharing of the responsibility for housework, the Tribunal notes the written submissions of 18 July 2017 where it was submitted:
For the duration of the visit to Australia Ms Cabsari has assumed the role Housewife. Ms Cabsari tends to the chores around the home of the applicant and sponsor, prepares meals, cleaning and prepares for her husband’s arrival after his days at work and prepares for his departure for work the following day.

140. At the first hearing, both the applicant and the sponsor gave oral evidence that aligned with this submission.
141. At the most recent hearing, the applicant and the sponsor gave consistent oral evidence about a number of aspects of their current approach to the responsibility for housework. For example, they both said that they shared the cooking. The applicant explained that she prepared Indonesian cuisine but that the sponsor cooked all other cuisine. The sponsor said that, if he had time, he cooked for the applicant. He told the Tribunal that he did not expect the applicant to do all the housework; adding, ‘I only want someone to share my life with’. Similarly, with respect to cleaning, the applicant said that they shared the cleaning and the sponsor stated, ‘we do everything together’.
142. The Tribunal accepts the parties’ consistent claims about the responsibility for housework at both the time of application (where the applicant took a larger role) and at the time of decision (where the parties share the division of labour).
143. The Tribunal gives weight to the evidence of the nature of the household.
The social aspects of the relationship
144. Whether the persons represent themselves to other people as being in a de facto relationship to each other or as 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 are relevant matters to be considered in determining the social aspects of the relationship.
145. At the hearing on 9 April 2021, both the applicant and the sponsor told the Tribunal that each of their families—including the sponsor’s mother—knew about their Islamic marriage of 10 July 2008. As noted earlier, there are two photographs on the Department’s file which appear to have been taken at this event. One of these photographs shows the couple with a number of other people. On the basis of the evidence before it, the Tribunal finds that, at the time of application on 1 September 2014, the applicant and the sponsor had represented themselves to other people as being in a committed partner relationship, in accordance with the rites of ‘Pernikahan’.
146. With respect to the parties’ marriage under Australian law, the applicant told the Tribunal that none of her family members had been able to attend the ceremony and celebrations because they live in Indonesia. In addition, she said that none of the sponsor’s family had attended the event because they were either not free to attend or, in the case of the sponsor’s children, they were disapproving of the union. Later in the hearing, the sponsor gave oral evidence that his older two children were upset with him that he had divorced their mother.
147. Both the applicant and the sponsor gave consistent oral evidence that a number of their friends had attended their marriage in Australia. The applicant described the celebrations after the ceremony as being ‘quite rowdy’. She said that they had celebrated with food, including cake, and drinks.
148. Mr Cahyadi and Mr Reza both gave credible oral evidence that they had attended the parties’ marriage ceremony in Australia. Mr Reza told the Tribunal that his wife had attended the event as well and he noted that he had taken photographs.
149. The Tribunal notes that a number of photographs were submitted of the parties’ wedding day celebrations, including a number showing them with their guests.
150. Mr Amin and Mr Suratman both told the Tribunal that they know the applicant and the sponsor to be married. Mr Amin said, ‘I know them as man and wife’, while Mr Suratman gave oral evidence that the first time that he had met them, the sponsor had introduced the applicant to him as his wife.
151. From the oral, photographic and written[15] evidence before it, the Tribunal accepts that, throughout the years, the applicant and the sponsor have represented themselves socially to their friends and community in Australia as a committed couple, including in recent years as a couple married in accordance with Australian law, and that they continue to do so at the time of this decision.
[15] Detailed below.
152. With respect to the opinion of the persons’ friends and acquaintances about the nature of the relationship, the Tribunal notes the many statutory declarations and other statements that have been made over the years by the parties’ friends and others in their community, as well as the oral evidence given by their friends at the hearing on 9 April 2021. The Tribunal also notes that, originally when the matter was listed for hearing in December 2020, the applicant sought to call seven witnesses, not including the sponsor, to appear in person at the hearing and to have one witness give oral evidence by telephone. However, due to measures taken by the Tribunal to respond to COVID-19, the number of persons permitted to attend the in-person hearing was limited. As noted earlier, the Tribunal heard oral evidence from five witnesses (not including the sponsor), who attended the in-person hearing. The applicant also provided details for nine other persons who were ready and willing to provide oral evidence by telephone in support of the relationship between the applicant and the sponsor. After hearing credible oral evidence from the five in-person witnesses, the Tribunal did not consider it necessary to call any of the other witnesses who had been nominated.

153. The Tribunal notes that, in the course of applying for the visa and pursuing this review, the applicant has submitted the following statutory declarations and statements from the parties’ friends and others in their community. (Almost all declarations were accompanied by relevant identify documents).
154. The following declarations were before the delegate.
·Form 888 statutory declaration of Ms Hega Astrit Silfia made on 20 August 2014.
·Form 888 statutory declaration of Ms Fahuda Dhikrillah made on 21 Aug 2014.
·Form 888 statutory declaration of Mr Ade Irman Suryani made on 21 Aug 2014.
·Form 888 statutory declaration made by Mr Ilmi Aghnia made on 24 March 2015.

155. The following declarations and statements were before the previously presiding Member.
·Form 888 statutory declaration of Mr Andri Cahyadi said to have been made on 18 July 2017. (The Tribunal considers that the declaration was not properly made).
·Form 888 statutory declaration of Mr Wiraguna Soenan Haniman made on 18 July 2017.
·Form 888 statutory declaration of Ms Laila Utami Handayani on 18 July 2017.
·Signed letter from Mr Garry Gunawan, Treasurer of the Association of Islamic Da’wah in Far North Queensland (AIDFNQ) dated 19 November 2015.
·Statutory declaration of Mr Garry Gunawan made on 19 July 2017, reiterating the statements made in his earlier letter.

156. The following declarations have been submitted to the Tribunal since the matter was remitted by the Court.
·Signed support letter by Renaldy Santoso dated 21 January 2020.
·Signed support letter by Mr Andri Cahyadi dated 21 January 2020.
·Signed support letter by Ms Linda Puspasari dated 21 January 2020.
·Signed support letter by Ms Mira Matejin dated 22 January 2020.
·Signed support letter by Mr Mohammad Royid Wahudi dated 22 January 2020.

157. The Tribunal notes that all declarants and a number of other persons making the statements have stated that they have known the parties for a number of years and that a number of them stated that they had visited the parties in their home.
158. The delegate considered the declarations that were before them but gave them little weight, considering them to be ‘not detailed’ and to ‘not give any convincing reasons as to why they believe the relationship is genuine and continuing’. Similarly, the previously presiding Member stated that she had considered the declarations before her but this and other evidence was not sufficient to satisfy the Tribunal, on that occasion, that the sponsor had a mutual commitment to the applicant to the exclusion of his first wife.
159. At the time of this decision, the Tribunal takes a different view to previous decision makers in this matter.
160. The Tribunal considers that some of the declarations before the delegate give detailed reasons about why the declarants believe the relationship to be genuine and continuing. For example, Ms Dhikrillah declared that the couple had helped her to settle into Cairns and that she socialised with them at community events, including cooking with the applicant. Mr Suryani declared that there was a meeting 3–4 times per week with the Indonesian people in Cairns and that is how he had come to know them ‘very well’ over the preceding two years. The Tribunal notes that both of these declarants lived at the same street address (but not unit number) as the applicant and sponsor in Williams Esplanade.
161. Similarly, the Tribunal is of the view that a number of the declarants who submitted statements to the Tribunal, when the matter was first before the Tribunal, also provided detailed reasons about why they believed the relationship between the applicant and the sponsor to be genuine and continuing. For example, Mr Haniman declared that he met them at least twice a week at the group meeting through the named Islamic community. Ms Handayani gave very detailed reasons, declaring that she saw them 4–5 times per week, including at the mosque and in their spare time and that she had observed them holding hands while walking together, cooking together in their home and had heard the sponsor call the applicant ‘sayong’, which is the equivalent of ‘dear’ in Bahasa.
162. Those people who provided support letters to the Tribunal, since the matter was remitted by the Court, also provided detailed reasons about why they believed the relationship between the applicant and the sponsor to be genuine and continuing.
163. At the hearing, Mr Amin, Mr Azis, Mr Cahyadi, Mr Reza and Mr Suratman all gave credible oral evidence about how they know and socialise with the applicant and the sponsor and why they believe that the parties are in a genuine and continuing, committed partner relationship. For example, Mr Azis said that he was part of the same community in Altona North; that the couple lived close by and that he had been invited to their home after Ramadan and Eid. He was of the firm view that they were ‘not faking’ their relationship. Mr Reza told the Tribunal that the applicant and the sponsor were ‘really good people’ and that he had felt very sad that the visa application and first review before the Tribunal had been unsuccessful. He explained that he first met them when he had been living at the mosque. He said that his pregnant wife was due to arrive in Australia within three days and that the applicant had invited him and his wife to stay with them in their home. He said that he and his wife then stayed until his wife had their second child. He said that the applicant had helped his wife to settle in Australia and had taught his wife to care for their first child when the child was a baby and that the applicant had also cared for their daughter. He said that he knew them very well, having lived with them and having observed how they support each other. He said that he continued to socialise with them, having recently been invited to a breakfast at their home and seeing them at the mosque and other community events.
164. From the voluminous and credible written and oral evidence before it, the Tribunal finds that the friends of the applicant and the sponsor and other members of their religious community are of the firm opinion that they are in a committed partner relationship. The Tribunal gives great weight to this evidence.
165. With respect to joint social activities, both the applicant and the sponsor gave consistent oral evidence of their regular attendance at the mosque, including to see friends in the Indonesian community and for other social engagement. For example, the applicant told the Tribunal that sometimes there were sporting activities through the mosque community. They each gave examples of other activities that they did together. The applicant gave oral evidence that they shopped for food, including at the market. She stated, ‘I follow my husband wherever he goes’. The sponsor told the Tribunal that they might go for a drive on the weekend. The Tribunal accepts this oral evidence and also notes and gives weight to the many photographs of the parties socialising together with others and visiting places together, including in Indonesia with members of the applicant’s family (there is also documentary evidence of joint travel to Indonesia in October 2017 and August 2019).
166. In view of the evidence before the Tribunal, the Tribunal places great weight on the evidence of the social and public recognition of the relationship.
The nature of the persons’ commitment to each other
167. 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 their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.
168. The Tribunal considers that the applicant and the sponsor have given consistent accounts of the inception and development of their relationship.
169. The applicant and the sponsor have long claimed that they first met in March 2007 at the applicant’s home in Bogor, Indonesia. At the hearing on 9 April 2021, the applicant explained that a friend had brought the sponsor along to a birthday celebration at her house and that she had had no knowledge of the sponsor’s marital status at the time. She said that they had simply chatted. Similarly, the sponsor gave oral evidence that he had been introduced to the applicant by a friend and as a friend.
170. At the hearing on 27 July 2017, the sponsor gave oral evidence that he thought that, when he first met the applicant, his first wife had not been pregnant with his youngest son. He told the Tribunal that his son had been born in November 2007. The Tribunal notes that the divorce order, referred to earlier, details the sponsor’s youngest son’s date of birth and corroborates the sponsor’s claim that the child was born in November 2007.
171. Both the applicant and the sponsor told the Tribunal that, from the time of their first meeting, they had gone out together and had developed some form of relationship.[16] At the hearing on 9 April 2021, the applicant said that the friendship developed over both time and distance because the sponsor travelled to, and subsequently lived in Australia. (The sponsor’s movement records evidence him first entering Australia in September 2007 as the holder of a Subclass 572 Student visa). The applicant said that she and the sponsor chatted a number of times until the sponsor disclosed that he was married. She said that the sponsor told her that he was no longer in love with his wife, that he was very fond of the applicant and that, since getting to know the applicant’s personality and character, he wanted to marry the applicant but that he did not feel that he was in a position to divorce his wife. She said that he had told her that it was because he was concerned for the welfare of his young children and he did not want his children to hate him.
[16] The sponsor gave this oral evidence at the first hearing whereas the applicant gave hers at the second hearing.
172. At the hearing on 27 July 2017, the sponsor told the Tribunal that the relationship with the applicant had started in July 2008 because that is when, ‘I have commitment that I think she’s the right person for me’. The applicant told the Tribunal that the relationship became serious in 2008 and that, on 10 July 2008, they informed others that they were in a relationship. At that first hearing, neither party told the Tribunal that the significance of that date was that that was when they had married each other in accordance with Islamic law.
173. Similarly, at that first hearing, the Tribunal did not disclose to the applicant that folio 86 of the Department’s file contained a screenshot of a ‘Client of Interest Note’ stating that, when the applicant entered Australia on 30 December 2013, an officer at Perth airport had sighted the applicant’s Indonesian marriage book, evidencing that she was married under Muslim faith and that she was ‘his 2nd wife’.
174. At the hearing on 9 April 2021, the applicant told the Tribunal that there is no ‘dating’ within her culture and that, in order for them to have intimacy, it was necessary for them to marry in accordance with Islamic law. She said that the parties’ decision to marry under Islamic law was a ‘very concrete step’ in the relationship and that the decision was made a very short time before the ‘marriage’. She said that the sponsor had to find the right time to divorce his first wife and that it was not until after the Islamic marriage that he divorced first wife.
175. At this hearing, the sponsor told the Tribunal that his first wife knew about his religious marriage with the applicant.
176. The Tribunal observed that, at the second hearing, on a number of occasions the parties referred to their Islamic marriage (or serious commitment) as taking place in August 2008 rather than July 2008. The Tribunal does not view this slippage in dates as problematic. The Tribunal is mindful that the parties were talking about an event that took place well over 12 years ago.
177. At the second hearing, the Tribunal provided the applicant and her representative with a copy of folio 86. The Tribunal explained that, in view of the applicant’s oral evidence about her Islamic marriage to the sponsor, the Tribunal did not consider that the information in the folio raises obligations for the Tribunal under s.359AA of the Act.
178. At the hearing on 27 July 2017, the applicant had been unable to recall the date that the sponsor had moved to Australia and was uncertain whether he had moved to Australia with his wife and children, saying, ‘I think he was alone. I don’t even know’. When the Tribunal asked the applicant whether the sponsor had lived with his first wife and children in Australia before the (so-called) ‘divorce’ of February 2013, she replied ‘yes’. She told the Tribunal that she was aware that the sponsor and his family had lived in Cairns, but she said that she had never asked the sponsor how long he had lived in Australia with his first wife and children. She said that she thought that, by January 2013, he was living with them but often stayed with his friend ‘Laud’[17] and ‘in many different places’.
[17] The applicant used this spelling whereas the sponsor spelled the name ‘Laode’.
179. At that hearing, the sponsor gave oral evidence that he had come to Australia by himself, but he acknowledged that, when his first wife moved to Australia, they had lived together. The sponsor told the Tribunal that he had been working in Palm Cove for less than a year and a half and that he travelled back and forth from Cairns every now and again. When the Tribunal asked the sponsor, ‘how long did you and your first wife live together in Cairns?’, he replied, ‘[n]ot long because I live in (indistinct) house 2013 November until 2015 and I just up and down’. Later in the hearing, the sponsor told the Tribunal that he had also stayed in a hotel ‘because they’re very cheap there’. When the Tribunal asked him to explain what he meant by ‘up and down’, he replied, ‘[l]ike sometimes stay with my wife, sometimes with my friend’. When asked to name the friend, he stated that it was ‘Gary’. When the Tribunal asked who Laode was, the sponsor said that Laode was the leader of the Indonesian community in that part of Queensland. He said that he had also stayed with Laode but that he had stayed at Gary’s house before staying at Laode’s house.
180. The Tribunal notes the earlier mentioned signed letter made by Gary Gunawan on 19 November 2015. The letter concerns Mr Gunawan’s knowledge of the applicant’s and the sponsor’s living arrangements from November 2013 until 30 November 2014 and refers to Laode A Fasihun as being the caretaker of the property. While the letter does not directly corroborate the sponsor’s claim that he lived with Gary on occasions, it suggests that his claim that he had stayed with Laode on occasion is plausible.
181. At the first hearing, the applicant also told the Tribunal that she had first arrived in Australia in the December prior to the sponsor’s ‘divorce’. (The applicant’s movement records evidence her first entering Australia in October 2012 as the holder of a Subclass 676 Tourist visa).[18] She said that she and the sponsor had lived together in a rented property in Williams Esplanade in Cairns.[19] She gave oral evidence that she lived with the sponsor on this trip and every other time that she visited Australia. She could not recall the address where the sponsor’s first wife had lived. Similarly, the sponsor gave oral evidence that the applicant had first arrived in Australia in October 2012 and that she had stayed for three months. He told the Tribunal that he and the applicant lived together in a rented property in Williams Esplanade in Palm Cove at this time.
[18] The Tribunal considers the reference to ‘December’ rather than ‘October’ to be an inadvertent error on the part of the applicant, especially when it is recalled that she travelled to Australia again in December 2013.
[19] The property in Willams Esplanade was in Palm Cove—not Cairns. The Tribunal considers this to be an inadvertent error on the part of the applicant.
182. The sponsor told the Tribunal that the applicant had visited him in Australia on three separate trips before the trip where she stayed on to apply for the visa. The Member inadvertently referred to this last period as starting in July 2014, rather than June 2014. The Member asked the sponsor ‘during any of that time did you live with your ex-wife, first wife?’ It is unclear exactly what period the Member was referring to but presumably it was from July 2014 onwards when all parties claim to have been living in Queensland. The sponsor replied by stating, ‘I just want to see my son only’. When the Member again asked him, ‘[d]id you live with your ex-wife at any of that time?’ The sponsor replied, ‘[n]o’.
183. In their respective statutory declarations each made on 23 August 2017, the sponsor and Ms Dewi declared that they had separated permanently, with both stating that the sponsor had not lived at Ms Dewi’s house since February 2013. The sponsor declared that, in June 2013, he had made a mutual commitment to a shared life with the applicant, to the exclusion of all others.
184. Similarly, at the hearing on 9 April 2021, the sponsor told the Tribunal that his relationship with his first wife had ended in 2013. He said that he could not live with his first wife given their differences. He said that he lived at a friend’s house. He said that his youngest son had been young and that he was always thinking of his children. He said that did not want the end of the marriage to affect this son and that he wanted to give the child a good upbringing. When the Tribunal asked the sponsor why he had divorced his first wife years later, the sponsor said that it was because his youngest son had grown older so he was able to speak to him and reassure him that he was still his father.
185. The Tribunal accepts the evidence about the inception and development of the applicant’s and the sponsor’s partner relationship and about their living arrangements.
186. The Tribunal notes that, in the applicant’s application for the Partner visa and in the sponsor’s Sponsorship for a partner to migrate to Australia form (Form 40SP), they both declared that the sponsor’s previous relationship with Ms Dewi ended in February 2013 and that their de facto relationship commenced on 1 June 2013. The Tribunal is satisfied, from the extensive evidence before it, that the applicant and the sponsor have been in a committed partner relationship since at least 1 June 2013, and possibly since as long ago as 10 July 2008, which is when they ‘married’ in accordance with Islamic law and first started living together. The Tribunal accepts the applicant’s and the sponsor’s evidence that, at the time of application and at the time of this decision and for the intervening period, neither party was or is in a relationship with any third party, including that the sponsor was and is not in a relationship with his first wife, Ms Dewi. In the circumstances, the Tribunal gives weight to the evidence of the length of the committed relationship, which is possibly as long as just under 13 years (if using 10 July 2008 as the date of mutual commitment) but certainly as long as just under eight years (if using 1 June 2013 as the date of mutual commitment).
187. With respect to the length of time during which the persons have lived together, the Tribunal accepts the parties’ credible oral evidence that they first lived together in Indonesia but that this was not for very long. Accordingly, the Tribunal gives greater weight to the evidence of the periods of time in which they claim that they have lived together in Australia, being:

·when the applicant travelled to Australia on the first trip (25 October 2012 to 10 January 2013; approximately 77 nights);
·when the applicant travelled to Australia on the second trip (20 April 2013 to 9 July 2013; approximately 80 nights);
·when the applicant travelled to Australia on the third trip (30 December 2013 to 29 March 2014; approximately 89 nights); and
·since 1 June 2014, when the applicant settled in Australia, although the Tribunal notes that the parties have travelled together offshore since this time and the Tribunal also gives weight to the evidence of those trips (just under seven years).

188. In the applicant’s own words, ‘as soon as we were not separated by distance, we were inseparable’. Similarly, the sponsor told the Tribunal that there had been no break ups and that he and the applicant had always lived together.
189. It appears to the Tribunal that the parties have lived together for over seven and a half years (approximately). The Tribunal gives weight to the evidence of the total length of time during which the persons have lived together.
190. With respect to any companionship and emotional support that the persons draw from each other, the applicant gave oral evidence at the second hearing that, when the couple had been living in separate countries, that they had communicated almost every day and that the sponsor had sent her birthday card/s. The sponsor gave broadly similar oral evidence about their contact when they had been apart, telling the Tribunal that he had contacted the applicant ‘every day and a number of times per day; before work and after work’. In this review, the applicant submitted a number of telephone records in the sponsor’s name, including invoices issued in August and September 2013. A number of calls were highlighted in these records. These frequent and ongoing communications between the sponsor and the applicant suggest that the parties had a genuine commitment to the relationship, notwithstanding that they were living in different countries for part of that year.
191. At that hearing, the applicant told the Tribunal that, after she received the Tribunal’s previous decision, that the sponsor had encouraged her to be patient. She said that he had assured her that they would continue to prove their committed partner relationship. She said that he had also apologised to her that the matter had become complicated because of his bond to his children. She said that, being a man, the sponsor did not like to show that he was feeling distress. However, during the distressing times, she had helped support the sponsor by hugging him.
192. With respect to whether the persons see their relationship as long-term, the applicant told the Tribunal, at the second hearing, that they had a continuing commitment to one another because they had made a promise to love one another for life. She saw it as ‘100%’ a long-term relationship, telling the Tribunal that they planned to go into old age together, for better or for worse, until parted by death. The applicant noted that, after the sponsor’s divorce with his first wife had been finalised, the applicant and the sponsor had married (in accordance with Australian law). She described this development as ‘a logical thing’ and said words to the effect, ‘he’d make sure that we are husband and wife’.
193. The Tribunal notes the sponsor’s undated, handwritten statement which is on the Department’s file where he stated, ‘I believe Trivera and me can share this life together, forever, whenever, whatever to enjoy this life’. At the second hearing, the sponsor gave oral evidence that, ‘I only want my life with her; no drama’. He told the Tribunal that he believes that God has written everything in this life, including the two of them being together. The sponsor told the Tribunal that when he saw the applicant, he felt chemistry and love. The Tribunal observed the sponsor become very distressed and emotional when speaking about what the applicant meant to him. He was unable to continue giving oral evidence.
194. In view of the evidence that is before it, the Tribunal finds that, both at the time of application and at the time of this decision, the parties provided and continue to provide companionship and emotional support to each other to a strong degree and that both saw and continue to see their relationship as being for the long term.
195. Unlike the previous decision makers, the Tribunal places great weight on the evidence of the nature of the persons’ commitment to each other.
Time of application and time of decision requirements
196. For the reasons given with respect to the r.1.09A(3) and r.1.15A(3) matters, the Tribunal is satisfied that, at the time of application on 1 September 2014, the applicant and the sponsor:
·were not in a married relationship, for the purposes of s.5F, with each other;
·had a mutual commitment to a shared life to the exclusion of all others, as required by s.5CB(2)(a);
·had a genuine and continuing relationship, as required by s.5CB(2)(b); and
·lived together, as required by s.5CB(2)(c)(i).

197. Section 5CB(2)(d) of the Act requires that the parties not be related by family. There is nothing in the information before the Tribunal to suggest that, at the time the applicant applied for the visa, she and the sponsor were related by family. To the contrary, in the record of responses to the Application for migration to Australia by a partner that is on the Department’s file, the applicant declared that she and the sponsor were not related by blood, marriage or adoption. The sponsor made a similar declaration in the sponsor’s Form 40SP that is on the Department’s file. In the circumstances, the Tribunal finds that, at the time of the application, the applicant and the sponsor were not related by family. Section 5CB(2)(d) of the Act is met.
198. The Tribunal finds that, at the time the applicant applied for the visa on 1 September 2014, the requirements in s.5CB(2) of the Act were established.
199. As stated above, the Tribunal is satisfied that the applicant and the sponsor are now validly married, as required by s.5F(2)(a) of the Act. For the reasons given with respect to the r.1.09A(3) and r.1.15A(3) matters, the Tribunal is satisfied that at the time of this decision, the applicant and the sponsor:
·have a mutual commitment to a shared life as wife and husband to the exclusion of all others, as required by s.5F(2)(b) of the Act;
·have a genuine and continuing relationship, as required by s.5F(2)(c) of the Act; and
·live together, as required by s.5F(2)(d)(i) of the Act.

200. Given these findings the Tribunal is satisfied that at the time the visa application was made—1 September 2014—the applicant and the sponsor were in a de facto relationship and that, at the time of this decision, the couple is in a spousal relationship.
201. However, the de facto or spouse requirement in cl.820.211(2)(a)(i) is not the only requirement in cl.820.211(2) which must be satisfied at the time of application. The sponsorship requirements in cl.820.211(2)(a)(ii) and cl.820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl.820.211(2)(d) must also be satisfied.
202. The Tribunal has reviewed the record of responses to the Application for migration to Australia by a partner and the completed Form 40SP that are on the Department’s file. On the basis of this documentary evidence, the Tribunal is satisfied that the applicant is sponsored by the sponsor and that cl.820.211(2)(c)(i) is met. There is no information before the Tribunal to suggest that the circumstances outlined in cl.820.211(2B) apply so the Tribunal finds that the sponsor is not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that cl.820.211(2)(a)(ii) is met.
203. The applicant’s movement records evidence her as having been granted a Visitor (Class FA) Subclass 600 visa on 21 October 2013. She held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 1 September 2014. As the applicant held a substantive visa at the time of application, the further requirements in cl.820.211(2)(d) need not be met.
204. The Tribunal finds that the applicant meets the time of application requirements in cl.820.211.
205. With respect to criteria to be satisfied at the time of decision, the Tribunal finds that the applicant continues to meet the requirements of cl.820.211(2) and so meets cl.820.221(1)(a).
206. Accordingly, the Tribunal finds that the applicant meets both cl.820.211 and cl.820.221.
Are the additional criteria for a de facto relationship met?
207. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A.
208. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
209. 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: r.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 the applicant must meet the 12-month requirement.
210. On the basis of the parties’ credible oral evidence, and some corroborating documentary evidence—such as records of bank transfers and telephone records—the Tribunal is satisfied that the de facto relationship was in existence on 31 August 2013, which was twelve months before the applicant applied for the visa on 1 September 2014. Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12-month period ending immediately before the date of the application.
211. For these reasons, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.
CONCLUSION
212. 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.
DECISION
213. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations
·r.2.03A

Justine Clarke
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).

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

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

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

[2021] AATA 1432

13 May 2021

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