Demeo (Migration)

[2024] AATA 3471

Demeo (Migration) [2024] AATA 3471 (10 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael David Demeo

VISA APPLICANT:  Mrs Sital Shobna Nand

REPRESENTATIVE:  Ms Radhika Reddy

CASE NUMBER:  2206477

DIBP REFERENCE(S):  BCC2017/4558084

MEMBER:Brygyda Maiden

DATE:10 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl 309.211 of Schedule 2 to the Regulations; and

·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 10 September 2024 at 4:43pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – limited evidence of financial, household and social aspects of relationship while living in different countries – nature of commitment – validly married in home country – regular money transfers and sponsor’s multiple visits – length of relationship – supporting statements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 March 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2. The visa applicant, a 39-year-old Fijian national, applied for the visa on 1 December 2017 on the basis of her relationship with her 66-year-old sponsor (“the review applicant”). At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(1) of Schedule 2 to the Regulations as the delegate was not satisfied that the visa applicant met the definition of spouse or de facto partner as defined in sections 5F and 5CB of the Act respectively.

4. The review applicant applied to the Tribunal for review of the Department’s decision on 3 May 2022, and attached a copy of the notification and decision from the Department.

5. On 24 January 2024, an officer of the Registrar sent the review applicant a letter inviting him to provide further and supporting evidence in relation to the circumstances of the parties’ relationship and in doing so, provided some examples of the types of information that could be submitted.  The review applicant was given until 7 February 2024 to respond, requested an extension which was granted, and responded in time.

6. The review applicant appeared before the Tribunal on 27 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicant via video conference, Dr Hannah Nice via telephone and Mr Alan Peacock in person.

7. The review applicant was represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicant is the spouse or de facto partner (as those terms are defined in the Act[1]) of the review applicant.

   [1] See sections 5F and 5CB of the Act.

10. The Tribunal has also had regard to evidence of events subsequent to the date of the visa application.[2]

    [2] Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

    This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

    Are the parties in a spouse or de facto relationship?

11. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen. A copy of the bio pages of the review applicant’s Australian passport appear on the Department file.

12. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

13. According to the review applicant’s relationship statement on the Department file dated 29 June 2017 (“RA’s June 2017 Statement”), the parties met on 31 July 2016 at Bendigo train station.  The visa applicant was in Australia on a visitor’s visa. They had a coffee together.  The parties both stayed at the Oval Motel in Bendigo that night, and the next morning, the visa applicant had to return to Sydney to catch a flight back to Fiji on 9 August 2016. The review applicant “felt a real connection” with the visa applicant and decided to go to Sydney as well.  The parties met up on 3 August 2016 and stayed together in a motel.  The review applicant returned home on 7 August 2016 and the visa applicant returned to Fiji on 9 August 2016.  The review applicant knew that he loved her and asked her to marry him on 16 August 2016.  The visa applicant agreed.  The review applicant departed Australia on 26 November 2016 with a view to returning on 18 January 2017 and marrying the visa applicant shortly after he arrived.  However, the parties could not marry as the review applicant did not bring his single status certificate.  Eventually the parties were able to marry on 20 May 2017 at the Nadi, Births, Deaths and Marriages Department of Justice in front of family, “…on 3^rd June 2017, 500 friends and family gathered at the Malolo Hindi Temple for a traditional Hindi Marriage Ceremony.”  This is generally consistent with the visa applicant’s undated statement on the Tribunal file in relation to how the parties met. 

14. The review applicant submitted a copy of the Registry of Births, Deaths and Marriages, Victoria no record result dated 28 March 2017 which indicates that no record can be found from 6 March 1974 until 7 February 2017 of any marriage in the state of Victoria of the review applicant.

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department file contains a copy of the parties’ Fijian Certificate of Marriage which indicates that they were married on 30 May 2017 at the Nadi Registry. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

16. The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.

    Do the parties have any joint ownership of real estate or other major assets? Do the parties have any joint liabilities? To what extent is there any pooling of financial resources?

17. There is no evidence before the Tribunal at the time of application or time of decision that the parties have any joint ownership of real estate or other major assets together, joint liabilities or that there is any pooling of financial resources.

    Does one person in the relationship owe any legal obligations in respect of the other?

18. The review applicant submitted a copy of his will dated 26 May 2017, in which he bequeaths his entire estate to the visa applicant and if she pre-deceases him, to her parents equally.  The Tribunal affords this some weight.

19. Handwritten notes (which were consistent with the review applicant’s oral evidence at hearing) seemingly from the review applicant submitted to the Tribunal indicate that the review applicant’s will is currently under review, to account for the situation of the parties dying at the same time and then his wealth will be transferred to the visa applicant’s father The review applicant claims he has separated from his siblings.  At the time of decision an updated will was not submitted.

    What is the basis of any sharing of day-to-day household expenses?

20. The Department file contains various receipts for items purchased in Fiji in 2019.  However, the receipts do not detail who made the purchase. For this reason the Tribunal affords them little weight.

21. The Department file contains numerous regular money transfer from the review applicant to the visa applicant from March 2017 until February 2022 which for the most part appear to be weekly.  The review applicant submitted numerous copies of money transfers that he had made to the visa applicant from October 2023 until August 2024, which appear to be made approximately weekly.  The amounts range from amount in the $200s to the $500s. Given the regularity and consistency of the money transfers and inconvenience on the part of the review applicant to have been transferring money so regularly for a period of approximately 7 years, the Tribunal affords this weight.

22. The review applicant submitted the visa applicant’s statement dated 10 May 2023 which says that since the parties married in 2017, the visa applicant is renting a house in Fiji and the review applicant is paying all her rent and expenses.  This is consistent with the review applicant’s statement dated 10 May 2023.

23. The review applicant told the Tribunal that he has provided nearly all the visa applicant’s income for a number of years.  Consistently, the visa applicant said he sends her money weekly (which is consistent with the money transfers), and since she met him he has paid her rent, bills and weekly expenses.  The Tribunal affords the review applicant sharing his financial resources with the visa applicant some weight at the time of application and moderate weight at the time of decision.

    Although the Tribunal accepts that the review applicant pays for the visa applicant’s day-to-day household expenses the parties for the most part live in separate countries (Australia and Fiji) and therefore do not share a household.  Additionally, because the household expenses are borne by the review applicant the Tribunal does not accept that they are shared.

    Conclusion on the financial aspects of the parties’ relationship

24. At the time of application and the time of decision, in relation to the financial aspects of the parties’ relationship, there is no joint ownership of assets, no joint liabilities, no pooling of financial resources and no sharing of day-to-day household expenses.  After the time of application and prior to the time of decision, there evidence of legal obligations owed from one party to the other, in that the visa applicant is the sole beneficiary of the review applicant’s will.  There is no evidence that this has been revoked at the time of decision.  At the time of application and time of decision on balance the financial aspects of the parties’ relationship do not provide much support for the parties being in a genuine and continuing relationship.  However, because the parties do not reside in the same country, the Tribunal accepts that the financial aspects of the parties’ relationship would be difficult to establish, and therefore has afforded this consideration neutral weight.

25. The Tribunal has afforded some weight at the time of application and moderate weight at the time of decision in relation to the review applicant sharing his wealth on a regular basis with the visa applicant by way of the money transfers.

    Nature of the household

26. The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.

    Is there any joint responsibility for the care and support of children?

27. There is no evidence before the Tribunal that the parties have any children of their own.

28. At the hearing, the review applicant told the Tribunal that the parties had previously provided some joint support to the review applicant’s niece who is now 18.  She was not an adult at that stage and was pregnant with a baby who was going to be adopted. The visa applicant cared for her for many months.  For a period of a year, the review applicant’s support was in the form of financial assistance.  Because the visa applicant’s niece stayed with her, the review applicant provided the income for food and accommodation. As there is no evidence to support the review applicant’s claims the Tribunal affords this a small amount of weight.

29. However, at the time of application and time of decision the parties do not have any joint responsibility for the care and support of children.

    What are the living arrangements of the persons?

30. The parties gave consistent evidence that the review applicant was living in Bendigo at the time of application.  The review applicant told the Tribunal that he was sharing accommodation with Jane Bates.  The parties also gave consistent evidence that the visa applicant was living in Kennedy Avenue in Nadi at the time of application.  The parties rented an apartment there, the review applicant paid for it, and the visa applicant lived there for three or four years. The Tribunal affords this some weight.

31. At the time of decision, the review applicant stated that his living arrangements were the same.  The visa applicant indicated that witness Alan Peacock was also living in the same property.  The parties gave generally consistent evidence that the visa applicant was renting a place in Namaka and the landlord is her uncle.  The Tribunal affords this some weight.

    Is there any sharing of the responsibility of housework?

32. The parties gave consistent evidence that they had shared responsibility for housework when the review applicant goes to Fiji, but gave different examples of what housework each party did.  In any event, the parties do not generally share a household as they for the most part live in separate countries – Australia and Fiji, and for this reason the Tribunal affords this consideration neutral weight.

    Conclusion on the nature of the household

33. In respect of the nature of the parties’ household, at the time of application and time of decision the parties do not have any joint responsibility for the care and support of children (though for a period in their relationship, the review applicant claims that they did have joint responsibility for the care and support of the visa applicant’s niece). The parties gave consistent evidence about their living arrangements at both times, and although the parties both told the Tribunal that they shared housework, they do not for the most part share a household as they live in separate countries.  Because the parties generally live in separate countries the Tribunal accepts that establishing the nature of the household would be quite difficult and therefore the Tribunal affords this consideration neutral weight at both times.  

    Social aspects of the relationship

34. The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

    Do the persons represent themselves to other people as being married to each other? What is the opinion of the persons’ friends and acquaintances about the nature of the relationship?

35. The Department file contains copies of numerous wedding photographs of the parties including some pictures with others.

36. The Department file contains a form 888 statutory declaration from:

    a.Ms Lorraine Turner, dated 12 October 2017 who has known both parties since different times in 2016.  Ms Turner has seen the review applicant’s happiness and talk about his plans with the visa applicant.

    b.Ms Jane Bates, dated 12 October 2017 who at that stage had known the review applicant for four years and is a friend, and the visa applicant since 1 August 2016.  She went with the review applicant to support him with his marriage to the visa applicant in Fiji in May/June 2017.  The review applicant has kept her informed of his love for the visa applicant, their happiness and that they miss each other.

37. Dr Hannah Nice told the Tribunal that she met the review applicant in April 2008 at the local youth hostel in Bendigo. She found him easy to talk to and trustworthy.  She allowed him to look after her children for the next two or three hours while she shopped.  Her children at that stage were five, seven and nine years old.  Dr Nice has seen a photograph of the visa applicant.  The review applicant told Dr Nice that he was going to marry the visa applicant, Dr Nice was invited to the wedding but did not attend.  She has also been with the review applicant when the visa applicant has called him or the review applicant has called the visa applicant.  Dr Nice has no reason to assume that the nature of their relationship is anything other than loving and genuine. It has been going for a long time and both parties appear deeply committed.  It is a positive and loving relationship and the parties speak to each other in the highest terms.  The review applicant has taken good care of the visa applicant over several years financially and emotionally with phone calls and comforting words.

38. Mr Alan Peacock told the Tribunal that he met the review applicant through Dr Nice about 15 years ago. He has not had a lot of close contact with the review applicant but they do catch up for a meal every couple of months depending on whether or not he is in Bendigo.  The review applicant also stayed with him in approximately 2016 for a couple of months.  The review applicant is very dedicated to this wife, the visa applicant and has been trying hard to get her to Australia for a long time.  The review applicant stays in contact with the visa applicant via phone and he visits her.  Mr Peacock did not attend the parties’ wedding, could not recall if he was invited, and did meet the visa applicant many years ago in Bendigo.  The review applicant is dedicated and speaks about the visa applicant regularly.

1. At the time of application and time of decision there is evidence that the parties represent themselves to other people as being married to each other and there is opinion evidence from the parties’ friends and acquaintances about the nature of the relationship.  The Tribunal affords this some weight at both times.

   Is there any basis on which the persons plan and undertake joint social activities?

2. The Department file contains copies of a number of the photographs of the parties together at various different locations, however, they do not provide much support for the parties planning and undertaking joint social activities.  The Tribunal gives this a small amount of weight at the time of application.

3. The review applicant submitted photographs of the parties together at various locations, including photographs of the parties with friends and with members of the visa applicant’s family.  Additional photographs were submitted of the parties having a meal with the applicant’s cousin’s family at their farm.  The Tribunal gives this some weight at the time of decision.

4. The parties gave consistent evidence as to the other’s hobbies and interests.   The Tribunal gives this some weight.

   Conclusion on the social aspects of the parties’ relationship

5. In respect of the social aspects of the relationship, at the time of application and time of decision there is some evidence that the parties represent themselves to other people as being married to each other and opinion evidence from the persons’ friends and acquaintances about the nature of the relationship.  At the time of application there is a small amount of evidence and at the time of decision some evidence as to the basis on which the persons plan and undertake joint social activities. On balance, at the time of application the social aspects of the parties’ relationship provide some support and at the time of decision it provides moderate support for the parties being in a genuine ad continuing relationship and having a mutual commitment to a shared life.

   Nature of persons’ commitment to each other

6. The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long-term one.

   What is the duration of the relationship?

7. As already mentioned, the parties met on 31 July 2016, and their relationship commenced in August 2016. At the time of application the parties have been in relationship for approximately one year and four months.  The Tribunal affords this some weight. At the time of decision, the parties have been in a relationship for over eight years.  The Tribunal affords this significant weight.

   What is the length of time the parties have lived together?

8. The RA’s June 2017 Statement indicates that the parties committed to each other on 15 August 2016.  The review applicant travelled to Fiji as follows:

   a.from November 2016 until January 2017 when the parties could not be married because the review applicant did not have a single status certificate (in excess of 50 days);

   b.in May – June 2017 for 11 days for the parties’ wedding; and

   c.a third trip to apply for visa applicant’s visa, for 17 days.  It is not clear when this trip was from the RA’s June 2017 Statement.

9. The review applicant submitted the visa applicant’s statement dated 20 August 2024 which states the following occasions when the parties stayed together:

   a.three days in August 2016 (in Australia);

   b.27 November 2016 until 15 January 2017 in Fiji when the review applicant did not have the single status document and therefore the parties’ could not marry;

   c.28 May 2017 until 8 June 2017 in Fiji for the parties marriage and wedding ceremony;

   d.16 November 2017 until 3 December 2017 in Fiji when the visa applicant did her spouse visa application;

   e.16 December 2018 until 4 April 2018 in Fiji;

   f.2020-2021 the review applicant could not visit the visa applicant due to COVID and as he was unvaccinated;

   g.20 March 2023 until 12 May 2023 in Fiji (consistent airline tickets were also submitted); and

   h.29 July 2024 until 12 August 2024 in Fiji (an e-ticket consistent with this was also submitted).  The review applicant in his hand written document headed “All trips to Fiji” provides consistent information.

10. The representative’s submissions dated 20 February 2024 indicate that the visa applicant has attempted to travel to Australia on a tourist visa but it has not been granted.

11. The applicant also submitted copies of:

    a.a tax invoice from Jolly Knight Motel addressed to both parties from 3 – 5 August 2018. 

    b.invoices from Prime Apartments for unit 10 in Fiji leased to both parties for a period from 26 November 2016 until 10 January 2017.  A receipt from prime apartments addressed to “John” dated 23 November 2016 was also submitted.  A handwritten note on the receipt indicates that it was an initial payment from John of Bendigo Travel and Cruise on behalf of the review applicant.

    c.an invoice from Grand Melanesian Hotel addressed to both parties from 11 until 14 January 2017.

    d.a receipt addressed to both parties from Crown Towers Apartments for a stay from 28 May to 8 June 2017.

    e.an e-Ticket from Bendigo Airport services from Bendigo to Melbourne airport on 29 July 2024.

    f.a reservation for two adults at the Crow’s Nest Resort, from 31 July 2024 until 3 August 2024.  A copy of an itinerary that indicates that the resort was booked from 29 July 2024 until 1 August 2024 but handwritten notes indicate that the dates were incorrect.  A certificate of insurance for a travel insurance policy in the review applicant’s name was also submitted.  A number of receipts were submitted from this trip but the receipts do not make clear who the purchaser is so the Tribunal affords them little weight.

12. The parties gave consistent evidence that they always stayed together when the review applicant travels to Fiji.  The Tribunal affords this some weight. 

13. At the time of application, the parties have lived together on four occasions, one in Australia and the remainder in Fiji. The Tribunal affords this some weight.  At the time of decision, the review applicant has travelled to Fiji on numerous occasions to live with the visa applicant.  The Tribunal affords this significant weight.

    What is the degree of companionship and emotional support that the persons draw from each other?

14. The Department file contains:

    a.partial telephone call records from October 2021 seemingly to the review applicant’s mobile phone, though it is not clear who made the calls;

    b.the review applicant’s Optus mobile records from 22 March 2018 until 4 May 2018 which show regular calls to the visa applicant.  Additional phone records were submitted showing regular calls between the parties in November 2020.

15. Post hearing, the review applicant submitted phone records from December to August between the parties.  The year is not apparent on the records.

16. The visa applicant’s undated statement on the Tribunal file in relation to how the parties met indicates that the parties speak daily on Viber video call.  Both parties gave consistent evidence as to how often the parties speak at hearing.

17. The review applicant in a handwritten note indicated that before he returned to Australia on 12 August 2018 the visa applicant had said to him that he had looked after her and cared about her health and now it was her turn. “Cook food, wash your clothes, do the housework, care for your health and make lots of love to you.”

18. The review applicant told the Tribunal that he supported the visa applicant emotionally when he was in Fiji recently.  The stress between them was great, they had some fights, broke down and spoke to each other with great care, and respect, and the review applicant apologised for getting upset. The visa applicant is a strong willed lady and she has the right to her opinion on things, but the parties have each other’s best welfare at heart. The visa applicant gave a similar example, and stated the parties were distressed about what would happen emotionally, she told him that the parties would be together soon.  The parties both cried that day.

19. The review applicant said the visa applicant supports him constantly, she is there every day.  The visa applicant said that when her visa was refused, the review applicant was very supportive and looked after her.  He told her not to worry or lose hope and that they just need to stay together.

20. At the time of application there is little evidence of the degree of companionship and support that the persons draw from each other.  At the time of decision there is some evidence of the degree of companionship and emotional support that the parties draw from each other and the Tribunal affords this some weight.

    Do the persons see the relationship as a long-term one?

21. It is a reasonable assumption to make that when parties marry it is indicative that they see the relationship as a long-term one. The Tribunal affords this a small amount of weight.

22. The review applicant submitted the visa applicant’s statement dated 10 May 2023 which states the parties’ plans for the future is that the review applicant wants to stay with, look after and support the review applicant.  The visa applicant told the Tribunal that the parties were intending to purchase a house and car and have a child in the future.

23. The review applicant wrote a handwritten note indicating that he had accommodation ready for the parties in Bendigo for when the visa applicant arrives in Australia.  It is an entirely self-contained apartment that he intends to rent from his friend Jan Hopley.  In support of this a letter dated 19 August 2024 from Ms Hopley provides consistent information.  After that the parties will buy or rent a house near Bendigo and will purchase a car on the visa applicant’s arrival.  He has left $550 in the review applicant’s Fijian account to pay for the costs of a motor vehicle licence. The Tribunal affords this some weight.

24. The parties gave consistent evidence that if the visa applicant could not come to Australia, that the parties’ relationship would continue.  The Tribunal affords this some weight.

25. At the time of application there is a small amount of evidence that the parties see their relationship as a long-term one.  The Tribunal affords a small amount of weight.  At the time decision, there is some evidence that the parties see their relationship as a long-term one.  The Tribunal affords this some weight.

    Conclusion on the nature of the persons’ commitment to each other

26. In respect of the nature of the persons’ commitment to each other at the time of application the parties have been in a relationship for approximately one year and four months. There is some evidence that the parties have lived together on four occasions with one of those occasions being very brief, there is little evidence of the degree of companionship and emotional support that the persons draw from each other and a small amount of evidence that the the persons see the relationship as a long-term one.  On balance, at the time of application the nature of the persons’ commitment to each other provides a small amount of support for the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life and living together and not separately and apart on a permanent basis.

27. At the time of decision, the parties have been in a relationship for over eight years, there is some evidence that the parties have lived together on the review applicant’s numerous trips to Fiji to see the visa applicant. There is some evidence of the degree of companionship and emotional support that the persons draw from each other and some evidence that the persons see the relationship as a long-term one. On balance, at the time of decision, the nature of the persons’ commitment to each other provides support for the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life and living together and not separately and apart on a permanent basis.

    Other circumstances

28. The applicant also submitted a certificate of authority from State Trustees Limited indicating that an “order under the Guardianship and Administration Act 2019 appointed State Trustees Limited (ACN 064 593 148) administrator of the affairs of Michael Demeo.” The certificate indicates that State Trustees Limited was appointed on 12 April 2023.  A letter from his personal financial consultant from State Trustees dated 21 August 2024 indicates that the review applicant has been a client of State Trustees since 2011.  The letter also deals with the fact that the review applicant resides in a boarding house in Bendigo and has multiple property holdings leased to local farmers.  A copy of his financial statement as at 21 August 2024 was also attached.  Post hearing, the review applicant submitted an e-mail from Maria Ireland from State Trustees dated 29 August 2024 stating that: “We hereby clarify, that our authority is limited to the management of Michael’s financial affairs , including assisting him resolve legal issues that may arise. The Administration Order should not be taken as restricting Michael’s decision-making capacity in any other area of his life, including the visa application."  On the basis of this certificate, the Tribunal does not consider that the review applicant has any capacity issues.

    CONCLUSION

29. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met at the time the visa application was made and at the time of this decision. Therefore the visa applicant meets clauses 309.211 and 309.221 of Schedule 2 to the Regulations. 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 309 visa.

    DECISION

30. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211 of Schedule 2 to the Regulations; and

    ·cl 309.221 of Schedule 2 to the Regulations.

    Brygyda Maiden
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    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).