Chong (Migration) - [2025] ARTA 397

CHONG (MIGRATION) [2025] ARTA 397 (27 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Suk Liong Chong
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2316928

Tribunal:General Member P Maishman
Place:Perth
Date: 27 February 2025

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

Statement made on 27 February 2025 at 2:54pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – sponsor died – no documentary evidence the applicant and sponsor pooled their financial resources, or of how the covered their day to day expenses – financial aspects of the parties’ relationship do not support the parties being in a de facto relationship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, rr 1.09, 1.20J, Schedule 2, cls 820.211, 820.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 31 May 2022 on the basis of her relationship with her sponsor, Mr Peter Howells (the sponsor). At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied the applicant was the de facto partner of the sponsor.
The applicant appeared before the Tribunal by MS Teams video on 20 February 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file containing, relevantly, the visa application, sponsorship form and documents provided in support of the application. The applicant is a man nation national. She claims to have first met the sponsor, committed to a shared life together to the exclusion of all others and commenced a de facto relationship with the sponsor on 27 September 2015. The applicant was previously married in March 1982 and claims that relationship ceased in January 2015 and finalised by divorce in March 2022.
The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The delegate’s decision record outlines it was not satisfied the evidence provided supported the finding that the applicant and the sponsor shared a genuine de facto relationship. On 30 October 2024 the applicant provided a written submission along with a number of statutory declarations from friends and associates, and a copy of the sponsors Last Will and Testament.
On 19 December 2024 the Tribunal directed the applicant to provide a statement addressing the nature of her relationship and invited her to provide supporting documentary evidence. The invitation included examples of the type of evidence the applicant might consider providing including, but not limited to, evidence of recognition of the relationship by family members, documents evidencing partner and/or next-of-kin declarations, and confirmation from the Executor of the sponsors Will of the distribution of the sponsors Estate according to the terms of the Will.
On 10 January 2025 the Tribunal received a response to the Direction comprising a submission from the applicant’s representative and copies of the statutory declarations previously provided on 30 October 2024.
The Tribunal observes evidence before the Tribunal confirms the sponsor died in March 2024, before the delegate made its decision refusing the application. The applicant has submitted the Tribunal should proceed with the partner visa application taking into account reg 1.20J. The Tribunal has considered the provisions of reg 1.20J which imposes limitations on sponsorships and in the Tribunal’s view has no relevant application. The Tribunal is of the view that cl 820.221(2)(a) provides for an applicant who meets cl 820.211(2) at the time of application to be taken to continue to meet those requirements if their sponsoring partner has died.
At hearing the Tribunal noted the applicant’s rudimentary compliance with its Direction. The applicant’s representative said it was very hard to get evidence as suggested in the Direction. The applicant was not living in Australia. The applicant’s age and cultural differences meant she and the sponsor did not accrue documents. The Direction was complied with as best as could be.
The Tribunal declined the representatives request for extra time to provide additional documents on the basis the applicant claimed to be unable to provide any evidence as outlined in the direction and had ample prior opportunity to do so. The delegate requested relationship information, and provided examples of information that might assist, on 6 February 2023. The delegate’s decision record indicated there was insufficient evidence of the financial and social aspects of the relationship, and the nature of the household and the parties commitment to each other. The Tribunal also provided a detailed list of examples of evidence that might assist the Tribunal with its Direction on 19 December 2024.
The Tribunal told the representative that, although extra time was not being formally given, the Tribunal was required to take into account any information it received before it made its decision. The Tribunal noted that it could have made its decision immediately after the hearing, however, would instead prepare a written decision which would take several days. At the time of this decision no additional information has been received by the Tribunal.
The issue in the present case is whether at the time of application the applicant was the de facto partner of the sponsor as required by cl 820.211(2)(a). If that criterion is satisfied the issue for the Tribunal is whether the applicant meets the time of decision criteria in cl 820.221.
Whether the parties are in a spouse or de facto relationship
Clause 820.211(2)(a) and cl 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen.
Are the parties in a de facto relationship?
'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).
In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
The Tribunal considered the financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.
The documentary evidence of the applicant and sponsor’s financial circumstances comprise a bank statement in the applicant’s name opened on 3 October 2022. Deposited into that account were two payments on 11 October 2022 with the description “DEPOSIT P Howells” totalling $880. The sponsors Last Will and Testament signed and dated 12 April 2019 describes the applicant as his ‘…partner…’ and makes significant provision for her financially.
The applicant told the Tribunal the sponsor paid for everything until the day he died. He paid for all their travel, food and expenses. The applicant said she and the sponsor did not own anything jointly. The sponsor paid the applicant’s outstanding mortgage on her residence and shop. The applicant and sponsor had no joint liabilities. The applicant told the Tribunal that the sponsors Will had been finalised and the estate had been fully distributed without dispute.
Aside from descriptions on the applicant’s bank account statements describing deposits from P Howells on 11 October 2022 there is no corresponding account reference which might be used to confirm the deposits were genuinely sourced from the sponsor. Despite claiming a de facto relationship spanning 9 years the applicant has not provided any independent evidence she had access to, or pooled with, the sponsors financial resources. The applicant has provided no evidence in support of her submissions to have been completely financially supported by the sponsor since their relationship commenced in 2015. The applicant provided no independent evidence the Will has been distributed in the terms of the Will presented to the Tribunal.
The Tribunal acknowledges the sponsors financial situation may have enabled him to provide financially for the applicant, but this alone is not conclusive of the nature of the relationship. There is no documentary evidence the applicant and sponsor pooled their financial resources, or of how the covered their day to day expenses. The parties do not have joint ownership of any assets and have no joint liabilities. There are no legal obligations of one party to the other.
The Tribunal finds the evidence of the financial aspects of the parties relationship does not indicate they were in a de facto relationship at the time of application.
The Tribunal considered the nature of the applicant and sponsors household including responsibility for care and support of children, their living arrangements, and any sharing of housework.
The applicant told the Tribunal she stayed with the sponsor at his house in Kota Kinabalu during the week. On the weekend she would return to her own house and look after her mother, while she was alive. Her mother’s full-time carer, paid for by her family, had time off on the weekend. When the applicant and sponsor were together the applicant cooked and they had a cleaner for doing chores. The applicant said she had no documents in joint names or containing her name and address which might confirm her residence at the sponsors address. The sponsor would generally return to Perth from Kota Kinabalu between November and April each year because the weather was good. The applicant would come to Perth to join the sponsor for the term of her tourist visa, usually a month or three. When questioned by the Tribunal, the applicant said she did not apply for a Partner visa earlier because of their lack of evidentiary documents.
The parties do not have minor children for whom they are responsible. The applicant and sponsor’s shared living arrangements were casual, with each staying at their preferred accommodation periodically.
The Tribunal finds the evidence of the nature of the applicant and sponsor’s household is not indicative of a couple in a genuine de facto relationship.
The Tribunal considered the social aspects of the applicant and sponsors relationship, including whether they represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of their relationship; and any basis on which they plan and undertake joint social activities.
The Tribunal had regard to the statutory declarations and supporting statements from the applicant’s friend’s. Each declarant notes the parties are close companions and travel and stay together since meeting in 2015. Amanda Page, Executive Manager of the Queenslea residential aged care home notes the applicant visited the sponsor daily and provided him with emotional support. Ms Page recognises the applicant as the sponsors de facto and partner in life.
The applicant described the sponsor as a quiet man and socially they mostly stayed at home. Sometimes the applicant went with the sponsor when he played golf. The applicant told the Tribunal her two adult sons were happy for her to be with the sponsor. She said her sons had only met the sponsor once during their relationship because neither of them lived nearby and when they did visit Kota Kinabalu the applicant and sponsor were away travelling. The applicant said she first met the sponsors adult children and his grandchildren when he was in the residential aged care home.
The Tribunal observed the sponsors death certificate contains a field to identify his marital status, including a de facto partner’s name. The sponsors marital status is recorded as divorced and no de facto partners name is recorded. The applicant told the Tribunal she did not know why her name was not recorded on the death certificate, the registration of which was handled by Linda Bernard, the executor of the sponsors estate.
The Tribunal acknowledges that some of the applicant’s friends and relatives are of the opinion the applicant and the sponsor are a devoted couple. The applicant’s relative Wong Foo Onn describes the applicant and sponsor as companions noting they travel and stay together. No immediate family members have provided evidence of their recognition of the parties claimed de facto relationship. The Tribunal offsets the weight it might give to Ms Page’s recognition of the parties relationship because more compelling evidence would have been the application/registration papers for the sponsors admission to The Queenslea residential aged care home indicating the applicant to be the sponsor’s de facto partner and/or next of kin. The Tribunal attributes significant weight to the applicant’s name not being included as the sponsors de facto on his death certificate issued by a government authority. Despite the applicant’s claims to have travelled extensively with the sponsor no supporting documentary evidence of this travel in the form of itineraries or photographs has been provided.
The Tribunal finds the social aspects of the applicant and sponsors relationship are not indicative of a couple in a de facto relationship.
The Tribunal considered the nature of the applicant and sponsors commitment to each other including the duration of their relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.
The Tribunal acknowledges the applicant came to Australia when the sponsor suffered a stroke and was admitted to residential aged care. The applicant provided care and support on a daily basis for the sponsor according to the letter from Ms Page.
The Tribunal finds the nature of the commitment of the applicant to the sponsor is attributed some weight as indicative of a couple in de facto relationship.
Having taken all the documentary and oral evidence into account the Tribunal finds the applicant and sponsor were not, at the time of application, in a genuine and continuing de facto relationship as defined in s 5CB(2) of the Act.
On the basis of the above the Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time the visa application was made.
Therefore the applicant does not meet cl 820.211(2)(a).
On the basis of the above decision it is not relevant to decide the criteria relevant to the time of decision requiring that the genuine relationship continues or otherwise meets the alternative exception criteria.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Dates of hearing(s):  20 February 2025
Representative for the Applicant:           Mr Muhammad Ali Sukhera
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).