Deng (Migration)
[2025] ARTA 432
•4 March 2025
DENG (MIGRATION) [2025] ARTA 432 (4 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Akuol Atem Ajhok Deng
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2201818
Tribunal:General Member B Maiden
Date:4 March 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the order that the applicant meets the following criteria for a Subclass 100 (Partner) visa:
·cl 100.221(2)(b) of Schedule 2 to the Regulations.
Statement made on 04 March 2025 at 10:52am
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine and continuing relationship – joint bank account – four children of the relationship – shared housework – limited evidence of joint social activities – emotional support during bereavements – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 348
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 100.221; r 1.15CASES
He v MIBP [2017] FCAFC 206
Statement of Reasons
APPLICATION FOR REVIEW
On 14 October 2024, the Administrative Appeals Tribunal (“AAT”) became the Administrative Review Tribunal (“the Tribunal”). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (“the Transitional Act”), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 January 2022 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicant, a South Sudanese national, applied for the visa on 28 June 2018 on the basis of her relationship with Mr Zacchaeus Kongor Deng (her “sponsor”). At that time, Class BC contained one subclass: Subclass 100 (Partner).
The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 100.221(2) of Schedule 2 to the Regulations, because the delegate had no information which demonstrated that the applicant continued to be the spouse or de facto partner of her sponsor. The delegate mentioned that the Partner (Provisional) (Class UF) (Subclass 309) visa was granted on 7 June 2019 and that five document requests letters were sent to the applicant, but were not responded to and the information requested was not provided by the applicant. The Tribunal has considered this matter under cl 100.221(2)(b) as that is the specific criteria that requires the applicant to be the spouse or de facto partner of the sponsor at the time of decision.
The representative’s submissions dated 17 February 2025 state that the applicant’s failure to respond “…was based on an unsophisticated understanding of the visa process. The Applicant and her sponsor mistakenly believed that since she was already in Australia on a Subclass 309 visa, no further action was required to obtain the Subclass 100 visa.”
The applicant applied to the AAT for review and attached a copy of the applicant’s passport and the notification and decision record from the Department.
On 22 November 2024, the applicant was invited to attend a hearing on 17 February 2025. The hearing notice contained the following text:
Things to do before the hearing
Please provide all documents you intend to rely on to support your case by 10 February 2025 if you have not already done so. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.
The hearing was postponed as a result of the applicant not appearing at the hearing until almost 45 minutes after the start time, and when the applicant did appear the applicant had difficulties understanding the interpreter due to dialect issues. Although the applicant had requested the interpreter the applicant did not specify any specific dialect in response to hearing form.
Another hearing was set down by the Tribunal and the applicant appeared before the Tribunal remotely on 24 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, and from Mr Say Nay Htoo Moo (“Mr Moo”). The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. The applicant was represented in relation to the review.
Section 348A(1) of the ART Act states that the “Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or reviewable protection decision for the purposes of the ART Act.” [1] Accordingly, the Respondent did not appear so there was no contradictor present.
[1] ART Act is the Administrative Review Tribunal Act 2024 (Cth).
The Tribunal mentioned on a number of occasions throughout the hearing its concerns about the limited evidence submitted in support of the parties’ claimed relationship, and gave the parties until Friday 28 February 2025 to submit further documentation. Many document that were submitted post hearing, had already been submitted to the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the parties are spouses as defined under s 5F of the Act.
Are the parties in a spouse or de facto relationship?
Clause 100.221 of Schedule 2 to the Regulations requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.
In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term. A copy of the bio pages of the sponsor’s Australian passport appears on the Department file.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of the parties certificate of marriage from the Republic of Kenya shows that the parties were married on 10 January 2017. 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
The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.
The sponsor told the Tribunal that he had worked at his employer for many years, and has reduced his work to three days a week, as he wanted to invest more time on his children and is considering part-time study. Both parties gave generally consistent evidence as to where the other worked, what they did for employment and the other’s income. The Tribunal affords this some weight.
(a) Do the parties have any joint ownership of real estate or other major assets? and
(b) Do the parties have any joint liabilities?
There is no evidence before the Tribunal that the parties have any joint ownership of real estate or other major assets or any joint liabilities.
(c) What is the extent of any pooling of financial resources, especially in relation to major financial commitments?
The applicant told the Tribunal that the parties had a joint bank account. The Tribunal indicated that it had not seen any statements from that account. The applicant could not recall when the account was opened. The Tribunal allowed additional time post hearing for the applicant to submit documentation.
Post hearing, the applicant submitted a letter from the Commonwealth Bank dated 25 February 2025 stating that the parties’ joint account ending in 8980 had been opened on 26 November 2024. A transaction listing from that account from 26 December 2024 until 4 February 2025 was submitted. No other transaction listings or statements of this account were submitted. In that time period, two cash deposits were made on 2 and 9 January 2025, and it is not clear who made the deposits. It is also not apparent from the statement that either party’s wages are being paid into the joint account. Although the Tribunal accepts that the parties have a joint account, because the Tribunal cannot ascertain how the parties contribute to the joint account and it does not appear that the parties wages go into the joint account, it is not satisfied that the joint account demonstrates pooling of financial resources. For these reasons, the Tribunal affords this little weight.
The applicant submitted a copy statement 14 of her personal Commonwealth Bank account from 30 October 2024 until 30 December 2024. This was the only statement of her account submitted. This account shows that her wages are paid into it, and frequent payments are also made into the account from the sponsor, and occasional amounts are transferred to the sponsor. However, numerous amounts were also deposited into the account from (for example): Awel Ajerek (who it seems also provided a statement in support), payments were made to Rech Kongor and a number of transfers made to A Kuol Bol. Although the parties are clearing transferring funds to each other, it seems from the account that the applicant is also receiving contributions from other individuals and making payments to other individuals. For these reasons, the Tribunal affords the applicant’s personal account a small amount of weight in support the parties pooling financial resources.
On balance, at the time of decision there is a small amount of evidence that the parties pool financial resources.
(d) Does one person in the relationship owe any legal obligations in respect of the other?
There is no evidence before the Tribunal that the parties in the relationship owe any legal obligations in respect of the other.
(e) What is the basis of any sharing of day-to-day household expenses?
The applicant submitted a copy of a joint electricity account from Energy Australia issued on 25 November 2024. As only one bill was submitted for the entire time the applicant has resided in Australia, the Tribunal affords this little weight.
The applicant told the Tribunal that the sponsor has a car loan, which he pays for and the applicant pays the rent. The sponsor also pay for groceries and bills (other than the water bill which the applicant pays for), and their daughter’s school feels. The sponsor gave generally consistent evidence but did not mention that the applicant paid for the water bill. No copies of the car loan, rental remittances, the parties’ daughter school fees invoices or water bills were submitted. For these reasons, the Tribunal affords the parties evidence a small amount of weight.
The joint account transaction listing submitted post hearing, shows the bulk of the purchases being made for groceries, liquor or takeaway (KFC). The Tribunal has already mentioned that the Tribunal was not satisfied that the joint account shows much pooling of financial resources. For this reason, and the sponsor’s different evidence that he pays for groceries, the Tribunal is not satisfied that the joint account shows that the parties share day-to-day household expenses, and affords it little weight.
On balance, at the time of decision there is a small amount of evidence that the parties share day-to-day household expenses.
Conclusion on the financial aspects of the relationship
At the time of decision, when considering the financial aspects as a whole, although the Tribunal accepts that there is a small amount of evidence, given the duration of the parties claimed relationship and the duration that the parties have claimed to live together, it does not provide convincing support of the parties being in a genuine and continuing relationship.
Nature of the household
The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.
(a) Is there any joint responsibility for the care and support of children?
The applicant submitted:
a.a Kenyan birth certificate of a daughter, Abuk born in September 2017. The parties are named as the parents.
b.a Victorian birth certificate of a son, Aguer born in June 2020. The parties are named as the parents.
c.an Australian Government Services Australia newborn child declaration for a son Ajang born in April 2022. A Victorian birth certificate was also submitted for Ajang and the parties are recorded as Ajang’s parents.
d.an Australian Government Services Australia newborn child declaration for a daughter, Aker born in July 2023. The parties are recorded as the parents. The box on the form for biological father has been ticked, but the name not recorded. The mother is recorded as the applicant. A Victorian birth certificate was also submitted for Aker and the parties are recorded as Aker’s parents.
The Tribunal affords the parties having four children together significant weight in support of the parties being in a genuine and continuing relationship and having a mutual commitment to a shared life.
The parties gave generally consistent evidence that the sponsor works in the morning and the applicant works in the afternoon, and when one party is at work the other is looking after the children. The Tribunal affords this some weight.
Post hearing, the applicant submitted letters from:
a.Matt Knight the principal of St Monica’s Primary School, dated 25 February 2025 stating that the parties’ daughter is enrolled in grade 2, and has attended the school for two years. “Both parents have been actively involved in Abuk’s school life, regularly participating in school drop-offs and pick-ups”;
b.Tricia Rewell, payroll officer from Don KRC dated 26 February 2025. It confirms that the sponsor has been a permanent employee since 2 July 2012. The sponsor has taken three lots of paternity leave: one lot in 2020 for child Aguer, the second lot in 2022 for child Ajang and the third lot in 2023 for child Aker.
At the time of decision, the parties have four children together and there is independent corroborative evidence that the parties have the joint responsibility for the care and support of those children. The Tribunal affords this significant weight.
(b) What are the living arrangements of the persons?
The parties gave consistent evidence that they had lived at Booth Street, Golden Square, Bendigo since the applicant came to Australia in 2019 and they live together with their four children. This is consistent with statements discussed below and the letter the applicant submitted dated 25 February 2025 from Dr Emily Laughlin Jones and Dr Dhananjay Mungi of Botanical Gardens Health, that states that the parties are in a relationship. The doctors have seen the parties’ marriage certificate, and they have lived at Booth Street, Golden Square since February 2019 with their four children.
On balance, at the time of decision, the Tribunal affords the living arrangements of the persons some weight.
(c) Is there any sharing of the responsibility for housework?
The applicant told the Tribunal when she wakes up in the morning she prepares the children’s breakfast and lunches and drops them at school and brings them home. Then she will go to work. If she has time, she will also prepare dinner and mop and clean the kitchen. If she does not have time or the sponsor has a day off he will do the cleaning as well. When she leaves for work, the sponsor prepares dinner, baths the children and puts them to bed. The sponsor’s evidence was consistent around the parties rotating around cooking and cleaning. He told the Tribunal that when the applicant was at work he would do dinner, and prepare the children for bed. He may take them to the park, do some outdoor activities and do some cleaning, then it is the applicant’s turn when she returns from work. At the time of decision, the Tribunal affords the sharing of the responsibility for house work a small amount of weight.
Conclusion on the nature of the household
On balance, at the time of decision the nature of the household supports 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.
Social aspects of the relationship
The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.
(a)Do the parties represent themselves to other people as being married to each other? and
(b)What is the opinion of the persons’ friends and acquaintances about the nature of the relationship?
The representative’s post hearing submissions dated 26 February 2025 state that the parties “…relationship is well-supported by credible evidence, including oral testimony, written witness statements, financial interdependence and household arrangements.” The Tribunal will discuss the oral testimony and written witness statements below.
Post hearing, the applicant submitted an e-mail from Downer, showing the applicant’s job as a cleaner, and that her emergency contact was her spouse the sponsor. An e-mail from Leanne Elvey dated 3 March 2025 states that from the commencement of the applicant’s employment she has always put her husband the sponsor as her next of “king”, which the Tribunal assumes is a typo and is next of “kin”. A letter dated 25 February 2025 from Dr Emily Laughlin Jones and Dr Dhananjay Mungi of Botanical Gardens Health that states that the parties are in a relationship. The doctors have seen the parties’ marriage certificate,
The applicant told the Tribunal that the parties are always together. They have family activities, take the children together, travel together and are together most of the time. The sponsor told the Tribunal that the parties’ families and communities know that they are a couple. No evidence from either of the party’s family was submitted. If there is a community event the parties go together and people know that the applicant is his wife and that he is the applicant’s husband. When the parties go out with their children people can see they are a family.
The applicant submitted a witness statement of Ms Elisangela Couto dated 24 December 2024. Although Ms Couto claims to be the couple’s case worker, and is employed as a team leader for Community Development and Capacity Building with Loddon Campaspe Multicultural Services, the statement was not on letterhead. It is not clear how long she has known the parties as the date is referenced as “June 202 [sic]”. Ms Couto claims to attest that the parties’ relationship is genuine and committed and that they have navigated challenges together like Australian services. The sponsor often comes to the appointment so he can watch the parties’ children.
The applicant submitted two additional witnesses letters both dated 27 November 2024 from:
a.witness Mr Moo, who has known the couple for more than two years since working as settlement worker at Loddon Campaspe Multicultural Services:
They are a genuine and loving couple who have built a strong family together. They have four children, and I often see them attending community gatherings and events as a family. Their interactions clearly demonstrate their bond, love, and commitment to each other and their children.
Based on my personal knowledge and observations, I can confidently say that their relationship is genuine, ongoing, and built on mutual respect and love.
Mr Moo gave oral evidence at the hearing that the parties are partners - husband and wife. He has known for more than three years (which is different from his statement though the Tribunal notes a number of months have elapsed). The parties have four children and their relationship is strong. Mr Moo has helped the parties with anything they need in relation to resettlement services. For example, if they have a new born baby they came to him for childbirth registration and Centrelink claims. They parties are good partners and have each other. The applicant came for training and job applications, and has a job as a cleaner at the hospital. He knows that the parties’ relationship is genuine because since the applicant’s visa was refused she came to him for assistance and she has contacted immigration lawyers. One of the refugee legal aids have assisted the applicant with the review application at the Tribunal. Since then, the parties regularly come to his office whenever they need assistance.
Mr Moo told the Tribunal that he wrote the statement and all the words in the statement were his. It was “guarded” by the lawyer. The Tribunal indicated that it had another statement from another individual with two identical paragraphs. Mr Moo thought someone has mistakenly put another name on the other statement. He tends to write by himself. As “guarded” by the lawyer, they probably mistakenly failed to take off the other name. The Tribunal indicated this was concerning.
b.Awel Ngor Aguer Ajerek, has known the parties as a couple for five years, and they live in the same community.
They are a genuine and loving couple who have built a strong family together. They have four children, and I often see them attending community gatherings and events as a family. Their interactions clearly demonstrate their bond, love, and commitment to each other and their children.
Based on my personal knowledge and observations, I can confidently say that their relationship is genuine, ongoing, and built on mutual respect and love.
The Tribunal discussed with the applicant that parts (which are the substantial parts) of the above two statements were identical which the Tribunal found concerning. The applicant told the Tribunal that she was not sure how they are written as both of those individuals were supporting the parties. The representative made submissions that her role as a representative was to provide guidance and advice, and give guidance examples which were sent to the applicant to produce witness letters. The Tribunal affords the statements little weight as to the nature of the parties’ relationship they are for the most part identical which creates the impression despite Mr Moo’s testimony that they are not the words of the witnesses. However, the Tribunal accepts Mr Moo’s testimony that the parties are partners, and have four children and affords this some weight.
Post hearing, the applicant submitted a statement of Kate Steenvoorden, Co-CEO of Neighbourhood Collective Australia dated 25 February 2025. Ms Steenvoorden claims to have known the parties since September 2019, and they regularly attend community events and dinners at the community centre in Bendigo with their children. Ms Steenvoorden knows the parties’ four children, one of which attend their homework club.
At the time of decision, there is some evidence that the parties represent themselves to other people as being married to each other and the Tribunal affords this some weight. In relation to the opinion evidence, it does not provide much insight as to the nature of the parties’ relationship, and for this reason, the Tribunal affords it a small amount of weight.
(c) Is there any basis on which the persons plan and undertake joint social activities?
The applicant told the Tribunal that the parties attend prayers together when the sponsor’s father passed away (photos consistent with this were submitted and are narrated to be of the parties surrounded by family at the funeral prayer service of the sponsor’s father). There are not as many multicultural or social activities where the parties live as there are on the other side of town. The parties take their children to the park, they go for walks, but they don’t do things in the city like attending community or cultural events as it is too far away. The applicant not attending community events appears different to the statement of Kate Steenvoorden submitted post hearing.
The applicant submitted a small number of photographs of the parties either together or with their children at various locations. Many of these photographs appear to be taken on the same day as the individuals in them are wearing the same clothing. The Tribunal gives these little weight.
Post hearing, an undated letter was submitted from the applicant and the sponsor stating that the parties:
…would like to provide some cultural context regarding the limited number of evidence and photographs available as evidence of our relationship As a Sudanese family, we do not frequently take photos to document our daily lives. While we engage in activities such as taking our children to the park and attending events, that we get invited, these gatherings are typically arranged through phone calls rather than formal invitations addressed to up both.
The absence of numerous photos from 2017 to the present should not be seen as a reflection of the authenticity of our relationship. What we naturally have is what we submitted. Culturally, we do not place emphasis on collecting photographic evidence, as our bond is naturally lived rather than documented. As a family with four children, we continue to live together, and our children’s schools can attest to our ongoing commitment as parents.
Although the Tribunal accepts that the parties are invited to events by phone rather than formal invitations, and culturally “they do not place emphasis on collecting photographic evidence”, the witness letters (considering two are identical and the Tribunal has expressed its concern about this) do not provide strong support for the parties planning and undertaking joint social activities.
Post hearing, the applicant submitted a photograph of the sponsor’s cousin visiting from Africa and members of the African community at the parties’ house in March 2023. The applicant also submitted photographs of the parties with their children labelled to be Christmas 2024, of the parties with two children and the sponsor’s cousin (undated), of the sponsor’s brother vising the parties (undated), of the sponsor’s sister visiting after the birth of Aker, of the parties individually with others at places but there is no indication from the photographs that they were at the event together. The Tribunal gives the photographs a small amount of weight, as there are limited photographs of the parties planning and undertaking joint social activities.
On balance, the Tribunal affords the parties planning and undertaking joint social activities a small amount of weight.
Conclusion on the social aspects of the parties’ relationship
At the time of decision, the social aspects of the parties’ relationship on balance provide some support for the parties being in a genuine and continuing relationship and having a mutual commitment to a shared life.
Nature of persons' commitment to each other
The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time 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.
(a) What is the duration of the relationship?
The applicant told the Tribunal that the parties started dating a long time ago, they underwent their traditional marriage in February 2017, and the sponsor’s father was alive at the same time and present at the traditional marriage. The sponsor gave generally consistent evidence. He told the Tribunal he went to Africa in February 2017 and left the applicant there with his family and returned to Australia.
The Tribunal accepts that the parties have been in relationship for approximately eight years, and the Tribunal affords this significant weight.
(b) What is the length of time during which the persons have lived together?
The parties gave consistent evidence that they had been living together since 2019 when the applicant came to Australia.
The applicant submitted a copy of the following documents recording the Booth Street, Gold Square address:
a.an Energy Australia electricity account in both names issued on 25 November 2024;
b.a residential rental agreement signed on 17 December 2024, for the Booth Street premises. Both parties are listed as renters, and the lease term is from 18 December 2023 (which appears to be a mistake as the agreement is dated in 2024 and the agreement is signed by both parties on 20 December 2024) until 16 March 2025.
c.a lease transfer dated 26 November 2024, showing the remaining tenants as the parties.
d.a letter addressed to both parties dated 25 February 2025 from the Commonwealth Bank.
e.a letter from Matt Knight, principal of St Monica’s Primary School, dated 25 February 2025, indicating that the parties’ address is recorded as Booth Street, Golden Square, and the school contacts also show both parents residential and postal address being at Booth Street, Golden Square.
f.a letter from Jayne Wallace, teacher, nominated supervisor and educational leader at Shine Bright Kindergarten show that the parties’ son’s Aguer’s enrolment records show both parents’ address as Booth Street, Golden Square.
g.her pay slips from 10 February 2025 until 23 February 2025 showing her address as Booth Street, Golden Square.
At the time of this decision, the Tribunal accepts that the parties’ are living together, and have been living together in Australia for approximately six years. The Tribunal affords this moderate weight.
(c) What is the degree of companionship and emotional support that the parties draw from each other?
The parties gave consistent evidence about the times they had provided emotional support to each other. The parties gave consistent evidence that the applicant supported the sponsor when his father died and the sponsor supported the applicant when her mother died. The applicant said that she counselled and spoke to the sponsor, he was told over the phone that his father died and she spoke to him. When her mother died, the sponsor had done the same thing for her: he counselled her, talked her through it, picked up when she was sad, sat with her, and looked after the children so she could have more time to herself.
The sponsor told the Tribunal that the applicant’s mother died very quickly, she became ill and passed away. He counselled her, supported her, told her everything would be okay and to focus on her siblings and remaining strong for them. The sponsor said that when his father died, the applicant took more time to take care of him, talked to him, invested a lot of time counselling his siblings back home, spent more time with the children and looked after the children and the house and did things he could not do. The applicant still checks in with him and his siblings to make sure they are okay.
Mr Moo told the Tribunal that the parties gave each other emotional support when the applicant’s visa was refused. The parties tried to help and encourage each other. At that time, the applicant did not have a job, and the sponsor had to work himself. They tried to encourage each other. They now both have jobs and can support each other financially.
The Tribunal accepts that there is some evidence that the parties emotionally support each other, and gives this some weight.
(d) Do the parties see the relationship as a long term one?
The applicant told the Tribunal that the parties’ plans for their future together were to look after and focus on their children, raise them in a happy environment and continue with life as it is. The sponsor told the Tribunal the parties had long term planning difficulties due to the applicant’s visa conditions and not knowing what would happen. The parties would have liked to have a mortgaged home, but that would have been difficult without the applicant’s documents. They can’t plan a holiday because the applicant does not have her documents. The parties can only focus on their kids. The Tribunal finds that the parties’ plans for their future are of a general nature, and are not particularly well developed. The Tribunal accepts that this may be partially due to the applicant’s visa status and therefore affords this a small amount of weight. The Tribunal notes that the parties have had four children together which the Tribunal accepts is indicative of the parties seeing their relationship as a long term one. The Tribunal affords this some weight.
The applicant told the Tribunal that if she could not remain in Australia the parties would continue to remain in a relationship. It would be difficult living overseas and not being together. The applicant claims that the only reason the parties got to this stage was during COVID things happened, they have a language and technology barrier, and a long distance relationship would make it difficult for the two of them. The sponsor told the Tribunal that he loves the applicant. If she cannot stay in Australia it will make their relationship difficult. The children cannot go and live in those harsh conditions. The poverty and financial means will be difficult. Neither party will be able to get a job and they will not have a good life. The applicant being in Australia assists in paying off the loans. The Tribunal accepts that conditions in Africa may be challenging.
The applicant told the Tribunal that if the sponsor were to return to Africa with her he would not have a job, and would be unable to support her and the children. If he remains in Australia he can send money to support his family. It would be the poverty and the conditions that keep the sponsor in Australia so that he could provide for them in Africa. The sponsor told the Tribunal it would be very difficult to return to Africa with the applicant. He would love to go and live with them and watch his children grow. It would be a difficult decision to make as who would support them if he went? The parties would end up living in poverty with their children. The Tribunal accepts this evidence.
On balance, there is some evidence to support that the parties’ see their relationship as a long term one and the Tribunal affords this some weight.
Conclusion on the nature of the persons’ commitment to each other
The Tribunal accepts that on balance, there is evidence supporting the nature of the persons’ commitment to each other which is indicative of the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life and living together and not separately and apart on a permanent basis.
CONCLUSION
Given the findings above and in relation to the reg 1.15A matters, the Tribunal is satisfied that the parties are spouses as defined in s 5F of the Act. Therefore the applicant meets cl 100.221(2)(b) of Schedule 2 to the Regulations. Accordingly, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 100 (Partner) visa:
·cl 100.221(2)(b) of Schedule 2 to the Regulations
Date(s) of hearing: 17 February 2025 Representative for the Applicant: Raviro Nzenza (MARN: 1280260)
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).
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