Forbes (Migration) - [2025] ARTA 1193

FORBES (MIGRATION) [2025] ARTA 1193 (11 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Sophie Melanie Forbes
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2202714

Tribunal:Senior Member M Sripathy
Place:Sydney
Date: 11 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations.
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 11 July 2025 at 1:55pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – length of relationship – support during injury and surgery, travel and meeting applicant’s family – statutory declarations, documentation and supporting statements – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
Migration Regulations 1994 (Cth),1.15A(3), Schedule 2, cls 820.211(2), 820.221
CASE
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 21 April 2020 on the basis of her relationship with her 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 10 February 2022 on the basis that the visa applicant did not satisfy cl 820.211 and 820.221 because the delegate was not satisfied the evidence and information provided was sufficient to demonstrate that she is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.
The applicant applied for review of the decision to the Administrative Appeals Tribunal on 28 February 2022.
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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
In July 2023 the applicant submitted various emails attaching photographs and two further Statutory Declarations Form 888 from Thao McKay, wife of the brother of the sponsor, solicitor, and Ryan McKay, brother of the sponsor.
On 13 March 2025, upon constitution of the matter, the Tribunal issued a Direction requesting confirmation of the ongoing relationship and further evidence of the relationship. In response to this Direction the Tribunal received, between 1-28 April 2025, various submissions of further evidence, as described below.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to make a decision wholly in favour of the applicant, pursuant to s 106(3) of the Administrative Review Tribunal Act 2024.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the spouse of the sponsoring partner.
The applicant is a 32-year-old British born national. She is sponsored for the application by Shane Dowe, a 47-year-old Australian born citizen. The parties stated that they met in October 2019 in Warwick Farm NSW and married on 4 April 2020. The sponsor declares that he has three children born 1999, 2000 and 2018. He declares two previous relationships, a marriage to Bridget Dodd from January 2011 to March 2013, from which there was one child, and a de facto relationship with Renee Jackson between April 2016 to June 2018 from which there was one child. He states he has never sponsored a partner for a visa. In a subsequently lodged Form 1023 Notification of incorrect information submitted on 18 October 2021 correct information that the sponsor sponsored Bridget Dodds for a partner visa in 2009 was provided.
The following evidence was submitted with the application in support: ceremonial certificate of marriage; birth and ID documents relating to applicant and sponsor; sponsor’s divorced certificate relating to divorce from Bridget Dodd, Statutory Declaration Form 888 from Steven McKay (step father of the sponsor) dated 13 April 2020; Bianca Brady (mutual friend of the parties) dated 4 April 2020; Kimorla Moroney (friend of the applicant through employment) dated 15 April 2020.
In response to a request for further information, on 18 August 2021, the applicant and sponsor provided Statutory Declarations detailing their respective backgrounds, inception and development of the relationship and circumstances of the relationship.
On 27 November 2021 the Department sent a further request for evidence of the relationship and identification for the Statutory Declarations from supporting witnesses previously provided. No further evidence was received, and the application was refused on 10 February 2022 on the basis of insufficient evidence to demonstrate a genuine spousal relationship.
The Tribunal observes there is no other information on Department file documents provided to the Tribunal to indicate any specific concerns, other than insufficient evidence for the decision.
Evidence before the Tribunal
In July 2023 the applicant submitted further evidence in support of the application:
·Various photographs of her and the sponsor at a friend’s wedding; during their visit to England in August 2022; the sponsor in hospital following an injury; photos of applicant and sponsor celebrating each other’s birthdays, and birthday of sponsor’s brother in 2022 and 2023.
·Statutory Declarations Form 888 from Thao McKay, wife of the brother of the sponsor, solicitor, dated 18 April 2023, and Ryan McKay, (half) brother of the sponsor, dated 12 April 2023, attesting to their knowledge of the relationship between the applicant and sponsor based on their personal observations of them together, socialising with them and visiting their home.
In April 2025, in response to a Tribunal Direction requesting updated and current evidence of the continuing relationship, the applicant submitted:
·Further bundles of photographs (unannotated) of the applicant and sponsor and in various social settings with others
·Change of address for sponsor – for a new work address and evidence of packages received in applicant’s name at this address
·Statutory Declaration by sponsor dated 22 April 2025
·Screenshots of Facebook posts
·Annotated photos of the applicant and sponsor in period 2020-2025 with various family members, including visit to England in 2022, and visiting each other in hospital.
·Updated Statutory Declaration by Steven Ross McKay, sponsor’s father dated 23 April 2025
·Statutory Declaration by Amie Double, sponsor’s long-term friend, dated 26 April 2025
·Statutory Declaration by Courtney May Shipley, a mutual friend of the couple, dated 27 April 2025
·Statutory Declaration by applicant dated 22 April 2025
·Copies of joint bank account statements for periods in 2020 and 2024 and the applicant’s personal account statement for those periods.
·Email dated 10 July 2025 further describing financial arrangements between the parties.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211.(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant 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 spouse of the sponsor who is an Australian born citizen.
‘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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A ceremonial marriage certificate was submitted to the Department evidencing their marriage on 4 April 2020. In her Statutory Declaration of 22 April 2025, the applicant explained that they married at the registry office, and due to COVID 19, only two witnesses were permitted, but they had a BBQ at home afterwards. There is no information before the Tribunal to suggest that the Parramatta Registry of BDM was not open in this period[1] and the Tribunal accepts her explanation that only two witnesses were permitted, given the circumstances of the COVID 19 pandemic at the time. A copy of the sponsor’s divorced from his previous wife is included in the Department file. In the absence of any other reason to have concerns about the veracity of their claim to have married, the Tribunal accepts the ceremonial certificate as evidence of the marriage.
[1] Wishlist picker making it easier for customers to book their wedding! | NSW Government
On the evidence of the certificate, sponsor’s divorce order, and declarations by the applicant and sponsor, the Tribunal accepts that 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?
It has been three and a half years now since the delegate’s decision and lodgement of the review in February 2022. In this time, as indicated above, the applicant has engaged with the Tribunal and has submitted further evidence and supporting material.
The Tribunal has considered all of the evidence submitted since the commencement of the application up to the present time. Notwithstanding the evidence that was provided up to October 2021, the delegate was not satisfied that the requirements for a spouse relationship were met, on the basis of insufficient evidence. The applicant sought review of the decision, and due to delay caused by a significant backlog of cases, the matter has only come up for consideration in 2025. The applicant and sponsor have recently confirmed the ongoing and continuing relationship and provided further supporting evidence.
Having regard to all of the material now before it, and placing weight on the passage of time, evidence of continuing integration with each other’s families both here and overseas, of continuous cohabitation and support for each other through health challenges, the Tribunal is satisfied that the applicant and sponsor are in a genuine and continuing spouse relationship. In reaching this conclusion it has had regard to the matters required to be considered in r.1.15A(3), and below sets out its findings on these relevant matters.
Financial aspects of the relationship
In their respective Statutory Declarations, the applicant and sponsor describe how they pool their resources to pay for daily living expenses. They each declare that the sponsor pays the rent, the applicant pays for food and they split the cost of internet and streaming services. The sponsor has liabilities for child support for his child and the applicant has costs associated with her horses. Reference is made to a joint account, which they have not been able to put money into because of financial constraints in recent times. In a further statement the applicant explained that they have no utility bills because their accommodation is provided as part of the sponsor’s employment and moneys are deducted from his pay for rent and water and they are not charged for electricity. The sponsor sends her $100 per month for the $200 internet contract, which is in her name but the sponsor is an authorised contact. Copies of the applicant’s personal account and their joint account statements were provided to the Tribunal on request. This evidence supports that they have had a joint account since February 2020, although recent statements indicate it has not been used, with the 2024 statement showing an opening and closing balance of nil. The applicant’s personal account statement shows payments made to the sponsor and withdrawals for groceries and living expenses.
Notwithstanding the absence of an active joint bank account, the Tribunal is satisfied on the basis of the claims made in the declarations and supporting evidence of bank statements that the parties pool financial resources and share day-to-day household expenses consistent with a genuine spouse relationship. The Tribunal considers the absence of joint property or accumulation of joint savings in and of itself does not detract from the existence of a genuine relationship given the information before it about the circumstances and activities of the applicant and sponsor, and it accepts that they have not been in a position to accumulate resources due to cost-of-living pressures and injuries.
Nature of the household
The applicant and sponsor are living together in accommodation provided by the sponsor’s employer. In their declarations they state they previously lived with the sponsor’s father until they moved into their present accommodation in March 2025. They refer to a dog they share named Bently. The sponsor has children from previous relationships and pays child support for the youngest child. They have no children together, but reference is made by the applicant to a dog named Bently, and the applicant has horses, for whom she pays regular expenses. The Statutory Declarations by the sponsor’s father provided to the Department in April 2020 and again in April 2025 confirm these living arrangements, and other supporting statements also refer to the parties living together. Various documents submitted show the claimed addresses.
The Tribunal is satisfied, on the evidence before it, that the applicant and sponsor are currently, and have been since the application was made in April 2020, living together which is now a period of over 5 years. The Tribunal accepts that their cohabitation for this period of time is strong evidence of a genuine spouse relationship.
Social aspects of the relationship
The applicant and sponsor describe their social lives and activities together with friends and family in their declarations. A substantial number of photos and social media posts have been provided in support of this, together with Statutory Declarations from close friends and close family members, including the sponsor’s father, brother and sister in law who all confirm and attest to their knowledge of them as a married couple. Among the photographic evidence are photos of their visit to England in 2022 where the sponsor met and visited various members of the applicant’s family, and photos also of her family’s visit to Australia. The Tribunal is satisfied on this evidence that the parties present to friends and family as a couple and are integrated with each other’s family. They clearly have common interests relevant to their work, horse racing, the gym, among others and undertake joint social activities together, as evidenced by the photos and social media posts.
The Tribunal is satisfied that the social aspects of the relationship are consistent with a genuine and ongoing relationship.
Nature of persons' commitment to each other
The parties have provided details of the inception and development of the relationship in their respective Statutory Declarations, to the Department in 2021 and more recently to the Tribunal in April 2025. On the basis of this evidence, the Tribunal finds they met in October 2019, married in April 2020 and continue to live together to date. In her recent declaration the applicant referred to support provided by the sponsor for her activities with her race horses and competitions, and also when injured. She referred to his support when she had ACL surgery and rehabilitation, and her support of him when he broke his neck and thumb, necessitating complicated surgery. Photos were provided in support of these claims.
Having regard to the duration of the relationship, integration and acceptance of their families and declarations regarding the companionship and emotional support they draw from each other the Tribunal is satisfied the relationship is considered by each of them as long-term.
Having regard to the above, the Tribunal finds the applicant and sponsor have a mutual commitment to shared life to the exclusion of others and are in a genuine and continuing relationship and they live together and therefore meet the requirements of s5F(2)(b)-(d).
On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.
Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a). The Tribunal finds the applicant is and continues to be sponsored by the sponsoring partner and therefore meets cl.820.211(2)(c). It finds, on the evidence of Departmental movement records, that she was the holder of a substantive visa at time of application and meets cl.820.211(2)(d).
Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations.
ATTACHMENT - Extract from Migration Regulations 1994
1.15A     Spouse
(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).