Han (Migration)

Han (Migration) [2018] AATA 4994 (15 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Peng Han
CASE NUMBER:  1732237
DIBP REFERENCE(S):  BCC2015/2592497 and BCC2018/34237
MEMBER:Kate Millar
DATE:15 January 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 15 January 2019 at 12:36pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – de facto relationship – lived together in various properties – registered relationship – vague evidence about the inception of the relationship – inconsistent evidence about each other – no significant joint liabilities – limited social activities together – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 359AA

Migration Regulations 1994 (Cth), r 1.09A Schedule 2 cls 820.211, 820.221
CASES
He v MIBP [2017] FCAFC 20
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Han is a citizen of the Peoples’ Republic of China. He met Ms Li when he arrived in Australia on a student visa in September 2010, when a friend who he met online was not available to greet him at the airport and sent Ms Li instead.
The parties state Ms Li showed Mr Han around Sydney and helped him find accommodation and that in this time they commenced a relationship. Shortly after this Mr Han moved to Wollongong to study, and they kept in contact and Ms Li visited him regularly.
Mr Han moved to Sydney in 2014 and the parties started living together. On 7 September 2015, Mr Han applied for a Partner (Temporary) (Class UK) visa on the basis of his relationship with Ms Li. His visa application was refused by a delegate of the Minister on 4 December 2017 because the delegate was not satisfied he was the de facto partner of Ms Li.
In issue in this matter is whether at the time of the visa application and the time of this decision, Mr Han was and is the de facto partner of Ms Li.
Mr Han appeared before the Tribunal on 20 September 2018 and 4 December 2018 to give evidence and present arguments, and was represented by his registered migration agent. The Tribunal also received oral evidence from Ms Li and Mr Jonathan Stubbs. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The legislation that applies to this review is contained in the Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations).
Mr Han has applied for a Partner (Temporary) (Class UK) visa. At the time of his application, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Regulations, and to be granted the visa Mr Han must meet the primary criteria in Part 820.
The delegate refused to grant the visa on the basis that Mr Han did not satisfy cl.820.211(2)(a) because the delegate was not satisfied that he was the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen at the time of the application. The delegate was also not satisfied he met the requirement in cl.820.221 to continue to be the de facto partner of Ms Li at the time of the decision.
Ms Li is stated to be an Australian permanent resident, and for the purpose of this decision it is assumed this is the case, however evidence of her residency was not contained on the Department file. As the parties are not married, the issue for consideration is whether they are de facto partners.
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 Mr Han claims to be the de facto partner of Ms Li who is an Australian permanent resident.
Are the parties in a de facto relationship?
A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
A divorce order was provided for Ms Li showing her divorce from Mr Mark Ghomari on 9 December 2010.
In forming an opinion whether Mr Han and Ms Li are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3).
The parties said they met when Mr Han came to Australia in September 2010, as a friend who Mr Han had met online, and who was to meet him at the airport, was unavailable and arranged for Ms Li to meet him at the airport. Ms Li arranged accommodation for him and helped him to open a bank account. Ms Li took him around Sydney for a few days after he arrived.
Mr Han initially said they started living together one to two weeks after he arrived. On being asked for more detail, he said he did not mean living in the same house, but rather that they were having sex, and Ms Li occasionally stayed overnight. Ms Li had her own property in Sydney, but Mr Han could not recall where this was located.
Mr Han moved to Wollongong in September 2010 to start his studies and kept in touch with Ms Li over the phone. He said she came to stay with him 1–2 nights per month. Ms Li said Mr Han moved to Wollongong in February 2011, and that she visited him every week. Telephone records provided by Mr Han for Ms Li from January to July 2013 show her address as being in Hobart at this time.
Mr Han said he finished his studies in 2012 but remained in Wollongong to work for Estella, a company that answers calls for Telstra from customers for new services. Ms Li said Mr Han finished his studies in 2014, and worked part-time with Telstra while he was studying.
Mr Han initially said he moved to Sydney at the start of 2014 and they started living together, however on it being observed the date of the receipt for the bond for the accommodation they shared was 24 December 2014, said this was the date they started living together. He said he did not move earlier because he had a job. He decided to move to Sydney because they were calling each other and seeing each other 1–2 times a month and wanted to have a stable life. Ms Li said Mr Han started a small business, a beauty and massage shop that lasted for three months.
They lived in a house at Campsie for a year, however it was difficult for Mr Han to find a job in Sydney and they moved to Adelaide in 2015. Mr Han said that as they needed to give notice at the property in Campsie, he and Ms Li’s daughter Jacklyn lived with a friend while Ms Li moved to Adelaide. Mr Han said he and Jacklyn remained in Sydney as he was to sit his interpreting exam and so that Jacklyn could finish the school term.
On coming to Adelaide they say they rented a property in Burnside so they could be close to a good school for Jacklyn, however the rent was too expensive so they moved to Kilburn. In this time Mr Han started a car washing business. He and Ms Li then moved to Christie’s Beach and Jacklyn went to live with a friend in Gawler. Ms Li started a massage business in Reynella.
Ms Li and Mr Han have a friend, Mr Jonathan Stubbs, who has lived with Ms Li from 2014. The parties state Mr Stubbs started living with them after he met them in a hotel bar in Hobart while they were on holiday, and has moved with them from Sydney to Adelaide. Mr Stubbs attended the hearing to give evidence, but said he did not live with them until he moved to Adelaide. This was put to Mr Han under s.359AA of the Act, and Mr Han sought and was granted time to provide a response, however ultimately submitted he had no further response.
The Tribunal did not find Mr Han to be a convincing witness in relation to the relationship. Many aspects of the relationship described by Mr Han were vague or unconvincing. For example Mr Han explained deposits to his account as money paid for translating services or for developing websites, however the amounts of money seem in excess of what could be earned in this manner and the last contract he could describe was a long period before the hearing.
There were significant inconsistencies between Mr Han’s evidence and that of Ms Li. Both accounts were also inconsistent at times with the evidence of Mr Stubbs. In particular, there were significant inconsistencies about when Jacklyn moved to live with her friend in Gawler, with Mr Stubbs stating Jacklyn was not living with Mr Han and Ms Li when he arrived in Adelaide in September/October 2015, Ms Li stating that Jacklyn left at Christmas 2017 and Mr Han stating she left six months prior to the hearing, which is approximately March 2018. Of particular concern was inconsistent evidence of the arrangements to visit Ms Li’s daughter Jacklyn who lives separately from Ms Li and Mr Han with a friend in Gawler. The number of inconsistencies and unsatisfactory explanations resulted in the Tribunal not being satisfied that Mr Han was a credible witness or that it could rely on his evidence.
The documentary evidence provided by Mr Han contradicted the oral evidence of the parties, for example, Mr Han and Ms Li gave evidence that when Mr Han lived in Wollongong Ms Li would travel from where she lived in Sydney to see him. Mr Han said she came to see him 1–2 times a month, or weekly according to Ms Li. This evidence was both inconsistent with each other and inconsistent with telephone records provided for Ms Li which place her in Tasmania during this time. In her oral evidence Ms Li stated that she met Mr Stubbs when she visited Hobart with Mr Han on one occasion and she had not returned to Hobart since then. On it being put to her that the address on her telephone records was a Hobart address, she said this was the address of a friend, and she now remembers she visited a few times for her second-hand furniture business. Given the distinct change in her evidence from having visited Hobart on one occasion where she met Mr Stubbs to having visited on several occasions in the course of her business, and the telephone records that provide a Hobart address for her, I was also found Ms Li an unsatisfactory witness and do not consider I can rely on her evidence.
REGULATION 1.09A FACTORS
The Regulations set out factors that must be considered in forming an opinion about whether the parties are in a de facto relationship. Each of these factors is essentially a question that is to be answered (He v MIBP [2017] FCAFC 206).
Financial aspects of the relationship
The financial aspects of the relationship include:
(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.
The parties produced a lease for a property in Campsie from 1 December 2014 to 30 November 2015. Ms Li’s name and the details of the property and the agent are typed into the form, and Mr Han’s name has been added in a handwritten notation. Similarly a lease for a property in Kilburn has Ms Li’s details typed on the form and Mr Han’s details added in a handwritten notation.
The parties then have a joint lease in Burnside from 6 October 2015 in both names with both names entered in type.
Mr Han said rent for their current residence is paid by direct debit, however only two transfers for this property appeared in the bank statements before me.
The car insurance in Ms Li’s name nominates Mr Han as a driver of the car. The insurance for another car in Mr Han’s name does not include information on the nominated driver as only the front page was provided without the certificate of insurance. Mr Han said they jointly own both cars, and provided the registration for both cars naming Ms Li as a joint owner of the cars.
Mr Han has a will that names Ms Li as a beneficiary, and in the alternative her children Jacklyn Ghomari (named as Jacklyn Chomari in the will) and Baiwan Wang. Ms Li has a will naming Mr Han as a beneficiary then Jacklyn and Baiwan Wang. They provided unsigned copies of these wills. They have each executed an enduring power of attorney appointing the other in the event of an incapacity. They have each named the other as the beneficiary of their superannuation.
Mr Han and Ms Li registered their relationship on 5 April 2018 under the Relationships Register Act 2016 (SA).
The parties provided consistent evidence on the last major purchase for the home, being an Apple computer for Mr Han. Mr Han said he also purchased an Apple computer for Jacklyn. Mr Han said the computers were purchased from his account. Mr Han provided receipts for the purchase of two washing machines.
In terms of their household finances, Mr Han said he pays water and electricity bills online. Ms Li pays the internet costs by direct debit from her account. Mr Han said the rent is paid from their joint account and he also pays the electricity from this account if there are sufficient funds but otherwise pays this from his account.
Mr Han said money is deposited to Ms Li’s personal bank account and then he transfers money to the joint account. The joint account shows large cash deposits. It also shows transfers to and from Mr Han’s personal account and transfers to Ms Li’s personal account as well as transfers to an unidentified account. Mr Han provided records of transfers from his personal account to Ms Li’s personal account.
Mr Han said the cash deposits are from work he had conducted developing websites for clients, however as he also said he last performed this work in 2017, I do not accept this is the case, with the results that large cash deposits are unexplained. There are also large unexplained cash deposits to Mr Han’s account, together with large deposits in the past from a share broker. Ms Li said the large cash deposits to the joint account are from Mr Han’s work translating and advertising and from her shop. I was not satisfied they provided a consistent explanation about Mr Han’s work and his source of income, or that Ms Li knew or understood Mr Han’s source of income.
Mr Han said whoever goes to do the grocery shopping pays for the groceries.
Mr Han said he pays electricity and water accounts online, but only one transaction for these utilities appears in his personal account or the joint account. The joint account has regular debits for fuel, telephone bills and groceries. Ms Li’s account has regular debits for telephone and internet bills.
Mr Han and Ms Li have joint ownership of their main asset which is two cars. They have a joint liability under the lease but do not otherwise have joint liabilities. There is limited evidence of pooling of financial resources for major purchases with Mr Han having purchased the computer and washing machines. They do not owe legal obligations on behalf of the other. There is some pooling of household expenses, such as groceries which come from the joint account.
I accept that to the extent they are able, Mr Han and Ms Li have provided all legal documents in support of their case, including wills, nomination for superannuation, enduring powers of attorney, a joint bank account and joint ownership of two cars. Given my lack of satisfaction about their oral evidence, I am not satisfied this represents a genuine intermingling of their affairs rather than an attempt to create documentation to support their case.
Nature of the household
The nature of the household includes:
(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.
Ms Li has a daughter Jacklyn. Mr Han said he attends most parent–teacher interviews for Jacklyn and he makes the decision about which school she attends. He provided a number of emails from out-of-school-hours care at Burnside Primary School and emails regarding dental appointments for Jacklyn.
Jacklyn is currently living with a friend in Gawler. On being asked how this came about, Mr Han said that in 2015 he and Ms Li were getting busier. At this time they lived in Kilburn and Jacklyn attended Burnside Primary School. He said it was taking a long time to get her to school and back. He said Jacklyn’s English was poor and she was good friends with a friend’s daughter. He said Jacklyn and her friend wanted to go to school together so Jacklyn is living with the friend until she finishes primary school and then they will live together again. He said they pay the friends $300 to $400 per week in cash to care for Jacklyn. He initially said this arrangement commenced approximately six months ago, but then also said they moved to Christies Beach at the start of 2018 and Jacklyn has been in Gawler for one year.
The information disclosed at hearing that Jacklyn is not living with them was surprising, as in his statutory declaration of 30 August 2018 Mr Han states that in November 2017 he, Ms Li and Jacklyn moved to Christies Beach and there is no mention of Jacklyn living separately.
Mr Han said Jacklyn lives with Ying Zhang and her daughter Mimi and Ying’s partner John, but he did not know John’s surname. He could not recall the address but said if he were to drive there he could find the place. On being asked which high school she will attend, he said a high school near Christies Beach but they have not arranged for her to be enrolled because they are currently renting.
Mr Han said they see Jacklyn once a month and she comes to them during school holidays. Ms Li said that she sees Jacklyn almost every weekend and in the school holidays. On being asked if Mr Han goes with her when she sees Jacklyn Ms Li said “yes he drives”.
The difference in how often Ms Li said they see Jacklyn was put to Mr Han under s.359AA of the Act. He requested and was granted further time to respond. In his written response, he states that Jacklyn attends Chinese language lessons in Adelaide on Saturdays and that Ms Li drives to the city weekly and as she does not want to disturb his work she does not ask him to go with her every time. As a result, he said Ms Li sees Jacklyn weekly and he sees her monthly. Mr Han provided a copy of Jacklyn’s student report from term 2 of 2018 from the Chinese School. This explanation remains inconsistent with Ms Li’s evidence as she said she sees Jacklyn weekly and that Mr Han drives.
He said Jacklyn does not see her father. Ms Li also said she does not see her father, but that she used to see him regularly in the past before he moved.
Mr Stubbs said that when Jacklyn comes to stay in the school holidays Mr Han looks after her during the day.
While Mr Han has evidence of his involvement in Jacklyn’s life, such as the emails regarding out-of-school-hours care and dental appointments, I am not satisfied he has the day to day involvement in her care that he asserts due to the inconsistent evidence about who sees Jacklyn and when they see her. It follows I am not satisfied that they have joint responsibility for the care and support of children.
Mr Stubbs gave evidence that Jacklyn was not living with Mr Han and Ms Li when he arrived in Adelaide in September/October 2015 and Jacklyn was not living with them at this time. At the time of the first hearing, Mr Han said Jacklyn had left to live in Gawler six months before the hearing. Ms Li said Jacklyn moved to Gawler at Christmas time 2017. The inconsistent evidence was put to Mr Han under s.359AA of the Act and he sought and was granted further time to respond to the inconsistent information. Mr Han ultimately advised he had no further comment on this information.

Ms Li’s tax return states she has two dependent children. Jacklyn is one. She has another child Baiwan Wang who lives in Sydney and works as a construction manager, so cannot be considered to be a dependent child. Ms Li and Mr Han both said she does not have two dependent children, and this must be a mistake.
The parties state they socialise with Baiwan when they visit Sydney, and he has provided a statutory declaration in support of the relationship in which he states that Mr Han assisted him to sell his car after a car accident in 2015 and helped him after the car accident. Baiwan is one year older than Mr Han. Mr Han could not state the name of Baiwan’s father.
I accept that Mr Han and Ms Li share a house, and they have moved together to live in various properties in South Australia and New South Wales. They have provided correspondence addressed to each of the separate addresses in Adelaide.
In terms of housework, Mr Han said Ms Li does the cooking, cleaning and vacuuming and he does maintenance work, lawn mowing and tree trimming. Ms Li said she does most of the housework, and Mr Han is busy with his work but does do a weekly clean and helps to vacuum. While this was not consistent, I find Ms Li does most of the housework and Mr Han contributes to household tasks.
Social aspects of the relationship
The social aspects of the relationship include:
(i)whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities.
In terms of social activities, Mr Han said they have meals with friends occasionally and have holidays. He said the last time they had a meal with friends was in May 2018 when they travelled to Sydney when they had a meal with Ms Li’s son Baiwan Wang, Min Wang and Ying Chen. This was the last social activity they described, and I find this displays limited social activities with others. I am not satisfied they represent themselves to others in the community as being in a de facto relationship.
Mr Han and Ms Li live with Mr Jonathan Stubbs who gave evidence and said he lives with Mr Han and Ms Li. Mr Stubbs said he does not really undertake any joint social activities with Mr Han and Ms Li. He said they have a good relationship and care for each other and that they share a bedroom.
With his application Mr Han provided statutory declarations from Peter Ford and Shumei Xu, who are husband and wife and say they see them for dinner when they visit Sydney. Mr Ford said he considers their relationship genuine because sometimes his wife would talk about them and they have dinner together. In his updated statutory declaration Mr Ford says Mr Han was introduced to him as Ms Li’s partner and they had dinner together “several times”. Mr Ford declares he does not speak Chinese but could see they loved each other very much. I am not satisfied Mr Ford had had a great deal of contact with Mr Han and Ms Li or is able to communicate with them when he does.
Ms Xu also provided a statutory declaration as did Ms Min Wang and Mr Stubbs. All state the relationship is genuine. Ms Xu says she speaks to Ms Li nearly every day.
A further statutory declaration from Min Wang also states they are in a genuine relationship.
Ms Li’s parents are deceased. Ms Li has not met Mr Han’s mother in person but says she does speak to her via video.
There is no information other than the evidence of Mr Stubbs about social contact with others in Adelaide, and it is not possible to determine if they represent themselves as a de facto couple. They have provided some statutory declarations from friends of Ms Li in Sydney which support that they hold themselves out as a couple and have dinner with others at times. I am satisfied these friends consider them to be in a relationship.
I am not satisfied they have any significant joint social activities as Mr Han is described as working 9am to 9pm seven days a week.

Nature of the commitment to each other

The nature of the commitment comprises:
(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.
The parties state they decided to move from Sydney to Adelaide but first visited Adelaide together. They provide boarding passes that show they travelled together to Adelaide on 9 July 2015, together with a receipt for two nights’ accommodation in Adelaide in Mr Han’s name. I am satisfied that the parties have lived together for a significant period of time.
Mr Han said he is currently self-employed and works from home doing computer programming. He accepts jobs on an as-needs basis. On being asked who his current clients are, he said he has none and that he spends his time writing a YouTube video interface program. He said his last client was Aroma Wines and that he did a website for them last year. He said that for income in the last year he was doing car cleaning before he moved to Christies Beach. He said that although he finished the website for Aroma Wines he did translating work for them when they speak to Chinese clients. He said he usually works 9am to 9pm and works upstairs in the lounge. Ms Li said Mr Han is currently working on something to do with YouTube, but rarely asks. She said he sometimes does translating and IT or advertising work. She gave consistent evidence that his last client was to do with a wine business.
Ms Li studied traditional Chinese massage and they own a shop in Reynella. He said she is at the shop from 9am to 9pm seven days a week. He said that occasionally if there are two employees she can have a day off.
In terms of companionship and emotional support Mr Han said Ms Li will call him every day. He said they have been together quite a few years and being separated makes them very upset.
Mr Han was aware that Ms Li had convictions for illegally collecting money for a brothel in 2010, after he met her, and said she had a good behaviour bond and a fine. This supports that they discuss issues with each other.
He said the age difference had not caused them any problems. He said the plans for the future were to settle at Christies Beach and when they have enough savings to buy a property, and they would move closer to the school which Jacklyn would attend.
He said they see the relationship as long term.
While I am satisfied they provide each other some companionship and emotional support, I am not satisfied this is to any greater degree than others who live at the same location. Ms Li works long hours. She could specify what Mr Han is currently working on but acknowledged she did not know much about it and rarely asks.

CONCLUSION

While there are factors that weigh in favour of the relationship, in particular that they have lived together for a substantial period of time, and Mr Han was aware of Ms Li’s previous convictions, I am not satisfied Mr Han and Ms Li have a mutual commitment to a shared life to the exclusion of all others or that their relationship is genuine and continuing. I found the account of the inception of the relationship unconvincing and contradictory. Where Mr Han and Ms Li provided inconsistent evidence this was not adequately explained.
On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time the visa application was made or the time of this decision.
Therefore the applicant does not meet cl.820.211(2)(a) or cl.820.221. There is nothing to indicate Mr Han could otherwise meet the criteria in cl.820.211 or cl.820.221. As Mr Han does not meet the criteria for the grant of the visa, the decision under review is affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Kate Millar
Member

ATTACHMENT – Extract from Migration Regulations 1994
1.09A    De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)     any joint ownership of real estate or other major assets; and
(ii)    any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)     whether one person in the relationship owes any legal obligation in respect of the other; and
(v)    the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)     any joint responsibility for the care and support of children; and
(ii)    the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)     whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii)    the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)     the duration of the relationship; and
(ii)    the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)     whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2018] AATA 4994

15 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice