HIMAWAN (Migration) - [2018] AATA 3654

HIMAWAN (Migration) [2018] AATA 3654 (2 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr CARLEN HIMAWAN
CASE NUMBER:  1701189
DIBP REFERENCE(S):  CLF2013/55547
MEMBER:Meena Sripathy
DATE:2 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:
· cl.801.221 of Schedule 2 to the Regulations apart from the criterion that the applicant hold a Subclass 820 visa.

Statement made on 02 August 2018 at 4:30pm
CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Exclusive relationship – Joint bank account – Awareness of sponsor’s travels – Joint travel after Department refusal – Disclosure of relationship to family – Knowledge of sponsor’s health issues – Pool financial resources – Single incidence of sexual infidelity – Duration of relationship – Decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 1.09, Schedule 2 cls 801.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 January 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 13 March 2013 on the basis of his relationship with his sponsor. On the same date the applicant also applied for a Partner (Temporary) Class UK (Subclass 820) visa. He was granted the Subclass 820 visa on 4 April 2014.
At the time of application, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (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. Relevantly to this matter the primary criteria include cl.801.221.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801. 221 because the delegate concluded that the applicant was not in an exclusive relationship with the sponsor and was not satisfied that the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others or that the relationship was genuine and continuing.
The applicant appeared before the Tribunal on 4 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 34 year old man of Indonesian nationality. He has parents and one brother who reside in Indonesia. The sponsor is a 54 year old Australian citizen, born in Vietnam, He has parents and a sister who reside in Vietnam. The parties claim to have met in July 2010 at a bar in Sydney and commenced a de facto relationship from June 2011, residing at an address in Pyrmont.
Various supporting documents were lodged with the application including Statutory Declaration form 888s from friends of the applicant and sponsor; evidence of a joint bank account opened in August 2011, including statements covering periods up to 2014; sponsor’s 2012 tax assessment indicating his address; evidence of sponsor’s nomination of applicant as (20%) beneficiary on his superannuation account in December 2011; applicant’s superannuation statement (indicating he has not nominated any beneficiary as at June 2012); statement of relationship from the applicant and sponsor; utility accounts in joint names for periods between 2012 – 2014; photos of the couple together.
In February 2015, in response to a request for documentation from the Department, the applicant submitted further evidence in support of the continuing relationship, including Statutory Declarations from the applicant and sponsor; two more Form 888 Statutory Declarations from friends attesting to the relationship; joint utility bills dated 2014-2015 and the sponsor’s 2014 superannuation statement still showing the applicant as nominated beneficiary.
In April 2016 an officer of the Department conducted a telephone interview with the applicant. Notes of this interview are included in the Department file at folios 135-136. The applicant was asked questions about the sponsor’s recent overseas travel (specifically relating to where he went, the dates of his travel and how he travelled to and from the airport); where and what hours he works; dates and how many times the sponsor’s travelled overseas during 2015; and their use of social media such as Facebook. The applicant advised that he and the sponsor have single medical insurance memberships, and that he was unaware of declaring the sponsor as his partner on his tax assessment. The officer advised the applicant of concerns arising from his responses and in particular that he did not appear to be aware of the dates of the sponsor’s travel in 2015 and was vague about other matters. He was invited to provide further evidence arising from the discussion.
On 24 May 2016 the Department wrote to the applicant providing details of responses he gave at the interview which may lead it to have concerns about the genuineness of the relationship, and advising that adverse information had been received by the Department.
On 27 June 2016 the applicant’s representative provided a submission in response to the invitation to comment letter and further evidence in support. In the submission the representative refers to the applicant and sponsor being a relatively conservative couple and due to their cultural backgrounds, respect their traditions and only discuss and disclose their relationship with close and supportive friends and immediate family. The evidence included: Statutory Declarations from the applicant and sponsor. In his Declaration the applicant explained the reasons for his responses during the phone interview and provided further details in response to the matters raised in the letter. The sponsor confirmed various details in his Statutory Declaration and reiterated that it was a genuine and ongoing relationship. Also provided were more photos of the couple together and in social settings; extracts of Facebook chat history (while it is indicated these related to the period February 2015 – February 2016, their content suggests they relate only to the period 14-28 February 2015); letter dated 25 June 2016 confirming that applicant was unable to take leave in February 2016 due to work commitments; 7 further Statutory Declarations Form 888s from friends attesting to the relationship; letter from the applicant’s parents attesting to their knowledge of the relationship; further bank statements;, superannuation statements and utility bills.
In August and September 2016 a number of separate allegations were received by the Department suggesting that the relationship between the applicant and sponsor was not mutually exclusive and their relationship is not genuine or long lasting and is contrived for immigration purposes. The allegations provided the following information: that the applicant and sponsor were not in an exclusive relationship, that the applicant has been in relationships with other people and for the past 7-8 months has been in a relationship with another man with whom he has been on a holiday; that the applicant has been on the dating app Grindr and was seen at a gay sauna, that it is well known amongst the applicant’s social network that they are not in a genuine relationship; that they live at the same address but may not be sharing a bed; that the sponsor has sponsored the applicant in exchange for money; that they take photos and socialise together for the application; that the sponsor has promised the applicant’s family he will get him a permanent visa; that the sponsor was in another relationship for 6 years and that relationship ended when he found out about the false relationship. Photos of the applicant with another man, who is not the sponsor, were provided to the Department anonymously.
On 14 October 2016 the Department wrote to the applicant and put particulars of information received in the allegations to the applicant for comment or response. The invitation was initially sent to the wrong email address, and resent on 10 January 2017.
On 17 January 2017 a new representative provided a response to the Department’s letter. In this response the applicant denied the allegation that his sponsor sponsored him in exchange for money. He denied that he and his partner do not sleep together or that they have taken photos or live together only for the application. The applicant maintains that the relationship between himself and the sponsor is a genuine and ongoing. The applicant denies the sponsor was in a relationship prior to his relationship with the applicant. The person who shared his apartment previously was only a flatmate. The applicant denied that he had a relationship with another man for 7-8 months in 2016, however he acknowledged that he engaged in sexual activities with another man on a casual basis from May to August 2016 but it was not a serious and long lasting relationship. Details were provided about the applicant’s activities on the Grindr app and how he came to meet and travel with this man to the Snowy Mountains and what happened during this trip. The applicant denied that he was in a relationship with this man. He stated that this man departed Australia in September 2016 and he has not heard from him since. The sponsor knows about this encounter and it is not an issue in their relationship. The applicant and sponsor intend to travel together to Vietnam in February 2017 to visit the sponsor’s family. Their relationship is known to their friends and the Vietnamese community and various people have provided supporting statements. When the sponsor has been overseas they have communicated on Viber on a daily basis.
The Department considered this response, together with all of the other material before it and refused the application on the basis of finding it was not exclusive and not being satisfied therefore that the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others or that the relationship was genuine and continuing.
Before the Tribunal the following further evidence has been provided: evidence of boarding passes and itineraries for applicant and sponsor’s trip to Vietnam in February 2017; various photos of the applicant and sponsor together and with others; a statement for a CBA account in joint names apparently opened in October 2017; tickets, receipts and other evidence of joint travel in September 2017 to Hong Kong, Vietnam, Indonesia; further Statutory Declarations Form 888 from 3 friends.
At the hearing the Tribunal took evidence from the applicant and sponsor. The Tribunal questioned each of them at some length about their family and relationship backgrounds, financial arrangements, past travel together and separately, and sought their responses to the substance of the allegations made to the Department. Details of the evidence they provided at the hearing is included in the discussion below.
The applicant confirmed his current address where he lives with the sponsor and, since very recently, his cousin and partner. His sponsor’s niece was living with them until March 2018. She moved out because she got married last year and had a baby in December and there was no room for them in the apartment. The sponsor in his evidence stated that his niece and her husband and baby were living with them and they moved out due to lack of room.
The applicant works as a cocktail server at the Star Casino. He is now full time, but previously was only casual. He works 40 hours a week, Wednesdays to Sundays, and has Mondays and Tuesdays off. The sponsor is a cashier at the Casino. He also works full time but does not have a regular roster, his days off rotate. They earn roughly the same level of pay. The applicant told the Tribunal he has an aunt and uncle in Australia, siblings of his fathers. They each have their own families here. He lived with his uncle in Ingleburn when he first came to Australia. He has not told his relatives here about his sexuality and is rarely in contact since he ceased living with them. In Indonesia he has parents and one brother. His brother married in 2014 and he returned to attend the marriage. The sponsor has two nieces in Australia and also an uncle in Cabramatta. He met the uncle when the sponsor’s sister visited last year when her daughter, the sponsor’s niece, had her baby. In Vietnam the sponsor has parents and his one sister. The applicant has met them when he travelled to Vietnam last year for the niece’s wedding.
The Tribunal asked the applicant why, given they claim to have lived with the sponsor’s niece for so many years, she has not provided a statement in support of the relationship. It asked him if she was aware of their relationship. In response the applicant said he is not sure if she knows they are in a homosexual relationship because she is quite innocent and they don’t discuss things in front of her. He said he is not that close and has never said anything to her. When the Tribunal asked the sponsor about this he stated that because she is his niece he has never seen the need to explain himself to her. He is not hiding his sexuality but neither does he talk about it explicitly particularly with his family members. As far as he knows his parents, sister and niece must know he is gay but they have never asked him explicitly and he has never told them. His mother has stayed with them and would have seen that they share a bedroom but she has never said anything to him.
The Tribunal asked the applicant who lived at the unit before he started living there. He said the sponsor was sharing with another man named Amin. They were not in a relationship. Amin had the master bedroom and the sponsor and his niece shared the second room. Amin moved out after the sponsor and the applicant started their relationship, and the sponsor then invited him to move in. The sponsor in his evidence said that he told Amin after they started their relationship that either he moves or the sponsor and applicant would move and Amin decided to leave at that time. The sponsor also stated that he was never in a relationship with Amin. He referred to Amin having a partner in Melbourne. Both the applicant and sponsor gave consistent evidence that the applicant was never included in the lease as it was prepared before he moved in and no lease has been signed since then. They stated that the landlord/agent is aware the applicant is living at the premises and they can provide evidence of this.
The Tribunal asked each of the applicant and sponsor about the inception and development of the relationship. The applicant stated that they met at the Midnight Shift and exchanged phone numbers. After this they went out for dinner at a Japanese restaurant on Oxford St and following this, met a few times and the relationship developed from there. In August the applicant travelled to Kiama with the sponsor to celebrate his birthday and it was here that they decided to commit to a relationship. In June 2011 the sponsor invited him to live with him. The Tribunal asked the applicant about his knowledge of the sponsor’s past relationships. He said he was aware that he had a relationship 2-3 years earlier, which lasted for about one year or less, with an Indonesian man. Before that he has a relationship with a Vietnamese man named Long, who the applicant met. The sponsor had never lived with a partner previously and this is the longest relationship he has had. In respect of himself the applicant said he had no previous relationships. He was not out as gay in Indonesia prior to coming to Australia as it was not easy.
In his evidence the sponsor stated they met at Midnight Shift in a group of people and the applicant agreed to have dinner with him that same night. They ate at a Japanese restaurant and exchanged numbers after that, and went out on dates. In August he asked the applicant to come to Kiama with him for his birthday and it was after this trip that they decided to be in a relationship. He invited him to live with him in June 2011 because he had no where to live at that time. He had moved out form Ingleburn to Redfern and then that place ended and he came to stay with the sponsor.
Regarding financial aspects of the relationship, the applicant said they opened a joint account but only for savings and to use in emergencies. Only he could deposit into the account because it was by transfer. The sponsor gave him cash and he deposited into the account. The now have accumulated $20,000 in savings into this account. Recently they opened another joint account which they can both use for daily expenses. They did this because they hadn’t realised it was important to have this kind of evidence before. The rent comes out of the sponsor’s Westpac account and the applicant gives him $400 per fortnight towards this. They split bills three ways with Mimi, the sponsor’s niece. The applicant and sponsor have an agreement to try to deposit $500 per month into the savings account. The sponsor’s evidence about the financial arrangements was broadly consistent.
The Tribunal asked if they have made any joint purchases or entered into any joint liabilities. The applicant referred to buying a fan, microwave and radio together. The sponsor did not refer to any joint purchases. He said they have a plan to save and buy property in future. They have not made enquiries about getting a loan together because the sponsor believes the applicant is not yet ready for that, and wants him to support his parents first.
The Tribunal asked the applicant about travel since their relationship began and asked if the sponsor had been overseas without him. He said his (the sponsor’s) father passed away in 2013 but he did not travel at that time. He said he went the following year in 2014 for the one year anniversary of his father’s death. The applicant could not go with him due to his work commitments. The applicant said he travelled to Indonesia in November 2014 for his brother’s wedding. The sponsor did not come because he could not get leave. The applicant said in 2015 the sponsor travelled twice, to Vietnam and in August to Thailand for his birthday. When asked why he did not accompany him, the applicant said he could not get leave. He said he travelled to Indonesia in September 2015 for his mother’s birthday. The Tribunal put to him that it may have a concern that the parties did not travel together on any of these occasions and the only joint travel they have done was after the Department’s decision in 2017. The applicant said in February 2017 they travelled together for the sponsor’s niece’s wedding. In September they travelled together for a holiday to Hong Kong, Macau, Vietnam and Indonesia. In response to the Tribunal’s concerns that these trips post dated the refusal decision, the applicant said that previously he had no money to travel and was casual at work and so could not easily take leave. The trip for his brother’s wedding was his first visit home since he came in 2004. The second trip was for his mother’s birthday and it was a surprise visit. The sponsor in his evidence gave similar explanations about limited leave and work restrictions for why they couldn’t travel together earlier. The sponsor said he wanted to surprise the applicant by taking him to Thailand with him in August 2015, but by the time he mentioned it the applicant had arranged a surprise visit to him mother in September and could not get leave for both. The sponsor told the Tribunal the applicant’s parents also travelled to Vietnam for his niece’s wedding in 2017 and their parents met each other. They showed the Tribunal photos of this trip and the relatives all together.

The Tribunal asked the applicant if he was aware of any health issues the sponsor has or vice versa. He was aware of a health condition of the sponsor’s and was familiar with the name of his doctor and when he last went for a check up. In respect of himself, he said he has no health issues. The sponsor confirmed his health condition. He was also familiar with the name of the applicant’s GP and that he was healthy.
The Tribunal raised with the applicant the issue of the adverse information put to the Department concerning evidence of a third person, not the sponsor, with whom he had a holiday and his Grindr profile and account. By way of explanation the applicant said he previously had a Grindr account before he met the sponsor, which he deleted. Some years later, as a result of their work schedules being so different, the applicant started using the app again initially only to chat with people because he was lonely. He said he told the sponsor he was chatting with people on Grindr and he was okay with that on the understanding that he was only chatting. The applicant said they never had any agreement to have an open relationship enabling sexual relationships with third parties. In this context the applicant met a man and they began chatting. He kept asking him to come to the Snowy Mountains with him. The applicant initially refused and resisted his pressure. Eventually he agreed to go if other friends came along. He told the sponsor he was going to the Snowy Mountains with a group of friends. While there, he was texting the sponsor all the time and the other man was asking him who he was communicating with. When he told him it was his partner, the man asked him to leave him and the applicant refused. Later in his evidence the applicant revealed that prior to the Snowy Mountains trip he had several encounters with this man over some months. He went on the Snowy Mountains trip because the man told him he was leaving Australia and it was a farewell gesture. After they returned the man contacted the sponsor and told him all about them and told the sponsor to leave the applicant. The applicant said, after he came to know all about it, the sponsor was initially very angry with him. He admitted to him his wrongdoing and eventually the sponsor decided to forgive him and they have remained together since then. At this stage the applicant broke down at the hearing, and said he has learned his lesson from this and loves the sponsor very much and will never do anything like this again. The applicant told the Tribunal he believes this man wanted him to sponsor him for a visa and was trying to break them up for this reason.
In his evidence the sponsor indicated he had no idea the applicant was using a chat website and only came to know this after the man tried to contact him following the Snowy Mountains trip. He called him and told him he had the applicant’s jacket and wanted to return it. The sponsor asked who he was and he told him he was the applicant’s boyfriend. He then told him about their interactions and tried to convince the sponsor to leave the applicant. The sponsor said his initial reaction was that he was very angry with the applicant as he had trusted him. He could not immediately talk to him and went to the temple. After some time he spoke to the applicant and he explained that it was only a sexual encounter and not serious. The sponsor considered the other man to be very malicious and saw that the applicant was genuinely distressed. He described one occasion when he went into their bathroom and tried to self harm. The sponsor said he is older and wiser and saw that the applicant was sorry about his actions and young and deserved a second chance. That is why he decided to forgive him and continue with the relationship.
The sponsor reiterated that their relationship is genuine and ongoing and they have been together now for over 7 years. They are committed to one another and have introduced each other to their respective families.
When asked what they fight or disagree about, the applicant said they argue about money – the sponsor thinks he spends too much on shopping and wants him to save more. He also complains when he goes out too late. The sponsor in his evidence said they argue about the applicant’s decorating of the house and when he takes him to scary movies. He also hates Indonesian food. When asked if they argue about money issues, the sponsor says never. He said money has never been a problem between them, though he does feel that the applicant spoils his parents sometimes by giving them too much and he should save more for the future.
Following the hearing, the following further evidence was provided arising from matters discussed at the hearing:
·Sponsor’s amended 2017 Income Tax return, indicating declaration of the applicant as his spouse.
·Statements from Applicant’s NAB account in his own name from November 2011 to January 2018, showing his Prymont address
·Statements from Applicant’s CBA accounts in his own name (for periods 2014-2016, and up to January 2018 for the Netsaver account.)
·Applicant’s amended 2017 Income Tax return, indicating declaration of the sponsor as his spouse.
·Sponsor’s Westpac and ING bank statements for periods covering 2014- 2018
·Copy of a Residential Tenancy Agreement referring to the applicant and sponsor as tenants, dated 6 June 2013 referring to a 12 month term from 15 May 2011 to 14 November 2011 (sic)
·Sponsor’s Certificate of Employment (undated) from The Star Sydney, indicating the applicant as emergency contact.
·Applicant’s Certificate of Employment from The Star Sydney (indicating date of 8 May 2018) indicating the sponsor as emergency contact; Applicant’s Certificate of Employment from Ibis Budget (undated) indicating sponsor as emergency contact.
·Statutory Declaration from the sponsor dated 14 May 2018, explaining transactions in his bank accounts, and specifically referring to two loan amounts to family members in July 2017 and April 2018 (supporting document relating to these transfers included).
FINDINGS AND REASONS
Whether the parties are in a spouse or de facto relationship
Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant.
In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.
Are the parties in a de facto relationship?
As the parties are not validly married, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2). In forming an opinion whether they are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision.
The Tribunal notes that the applicant was granted a Subclass 820 visa 4 April 2014, inferring acceptance that they were in a de facto relationship at time of application and time of that decision. The criteria at issue in the present application is cl.801.221, which requires the applicant to be the de facto partner of the sponsoring partner at time of decision. The delegate refused the application, not being satisfied that the applicant and sponsor were in a mutually exclusive or genuine relationship on the basis of adverse information provided to the Department and the delegate’s assessment of the applicant’s responses at an interview and responses to the adverse information.
Before the Tribunal, the applicant has provided substantially more evidence in support of the existence of an ongoing relationship. The Tribunal has also had the benefit of a face to face hearing and oral evidence from the applicant and sponsor, given separately. After careful consideration of all of the material now before it, and guidance from relevant judicial authorities, the Tribunal has reached a different conclusion to the delegate, albeit not without some concerns. On balance however, it finds that the weight of evidence supports a conclusion the applicant and sponsor are in a genuine de facto relationship at time of decision. The Tribunal’s analysis of the evidence and reasons for decision follow.
As required by the legislation the Tribunal has considered all of the circumstances of the relationship, including the prescribed matters set out in r.1.09A(3) and other circumstances revealed by the evidence and materials.
Financial aspects
With regard to financial aspects of the relationship, the applicant and sponsor gave consistent evidence to the Tribunal about how they arrange their financial affairs. They provided bank statements of their jointly held accounts and their personal accounts in support of that evidence. On the basis of this evidence, the Tribunal accepts that they hold joint accounts, and have held a joint account since the beginning of their relationship. It also accepts that they maintain and use their own bank accounts. They told the Tribunal they mostly use their own accounts for daily transactions and previously only used the joint account to accumulate savings. Following the delegate’s refusal decision, they opened a new joint account and have been using this account for daily expenses. Given the timing of this account and the motivation for opening it, the Tribunal places little weight on it as support for the relationship, as it was clearly created in response to the delegate’s concerns. However, the Tribunal does not consider the fact that the applicant and sponsor mostly use their own accounts to be inconsistent with a genuine relationship, as it is not uncommon for partners to maintain financial independence in this way. It accepts, on their oral evidence, that they demonstrated a reasonable degree of familiarity with each other’s accounts and gave consistent evidence of how they manage financial affairs between themselves. The Tribunal accepts that they pool their financial resources and share living expenses, including rent and this is generally consistent with a genuine and ongoing relationship. The Tribunal did note however the absence of any significant evidence of joint purchases or liabilities, and given the length of the relationship this caused some concern; but considering their explanation, and in the overall assessment, it finds it not to be unduly significant.
The Tribunal notes the anonymous allegation made that the applicant has paid the sponsor to sponsor him and it is not a genuine relationship. The applicant and sponsor have denied this allegation and the Tribunal finds there is no independent corroborative evidence to support the truth of the allegation. Although it observes several substantial transactions in the sponsor’s account, he has provided an explanation of loans made to family members in a statutory declaration.
Nature of the household
The applicant and sponsor are living together and have been living together at the same address since 2011. Various documents are before the Tribunal to corroborate the parties at this address since then and up to the present, including a residential tenancy agreement, bank statements and other correspondence, such as utility accounts. The Tribunal accepts that they live together at this address and have been for the past 7 years and that this is a strong indicator of an ongoing relationship.
Social aspects of the relationship
The Tribunal notes that a substantial number of statements from friends and acquaintances have been provided to support the existence and genuineness of their relationship. It also notes however the absence of evidence from the sponsor’s niece who they both claimed, lived with them for some number of years. When asked about this, the sponsor explained that he has not ever had an explicit discussion about his sexuality with his niece or any of his relatives, and that given his seniority to her, he does not consider it necessary. Taking into account the cultural context, the Tribunal is prepared to accept this explanation as plausible and reasonable. On the other hand the parties also gave evidence that the applicant and his parents attended the niece’s wedding in Vietnam in 2017, which supports the existence of an ongoing relationship.
The Tribunal considered the separate overseas trips taken by the applicant and sponsor between 2013-2017. While they explained the reasons for their separate travel (limitations of leave and financial resources), the Tribunal did consider it significant that they were unable to coordinate even one overseas trip together in this period, and does not support that they were in a relationship. It has noted that since the delegate’s refusal, they have travelled overseas twice, and met each other’s families overseas. While these trips support the existence of the relationship, the Tribunal places less weight on them given the timing. It has also considered other evidence relating to social recognition of the relationship, including the recent declaration of each other in their tax returns, and reference to each other as emergency contacts at work. Again, these developments have been relatively recent and post date the delegate’s decision which somewhat detracts from their value as factors indicative of a genuine relationship.
Nature of commitment
In respect of evidence of the commitment of the parties to each other, the Tribunal has considered duration of the relationship, since 2011, now a period over 7 years, and that they have lived together throughout this time. It considers this is a significant length of time.
Information and evidence was provided to the Department that the applicant, in this period of time, was involved with another person, with whom he took a holiday. This was put to the applicant for comment on the basis that it suggested the relationship between himself and the sponsor was not mutually exclusive. The Tribunal has considered the explanation provided by the applicant to the Department and the oral evidence given to the Tribunal by the applicant and sponsor when this matter was discussed with each of them in some detail. It accepts the applicant’s admission and explanation that he had an ‘affair’ for a short period of some months with another man. It accepts that the sponsor was initially unaware of this, but later came to know about it. The Tribunal accepts that the liaison between the applicant and this man is over, that it was short lived in the overall context of the duration of the claimed relationship between himself and the sponsor, and that he has had no further contact with him after the Snowy Mountains trip. The Tribunal accepts, on the sponsor’s evidence, that he was initially angry with the applicant but has since forgiven him and that the sponsor remains committed to the relationship despite the applicant’s infidelity.
In assessing the significance of this matter to its assessment of the relationship, the Tribunal has taken into consideration relevant judicial guidance. The case law authority binding on the Tribunal indicates that sexual infidelity by one of the parties to the relationship does not necessarily take the relationship outside the definition of spouse or de facto. It will be a matter of fact and degree in the circumstances of the case, to be considered, along with all the other circumstances of the relationship, in determining whether the parties have or had the requisite commitment to a shared life to the exclusion of all others at the relevant time.[1] The Tribunal is also mindful that the level of commitment to the relationship does not need to be of equal strength or quality between the parties, although a reciprocal commitment, at some level, is required. A genuine relationship does not require parity of commitment between the parties, but rather a commitment by each to the other, to the exclusion of all others. There may be relationships where the parties have different levels or degrees of commitment to each other, or where the commitment of the parties to each other is of a different quality. Such differences do not matter in the application of this requirement as long as each party has a commitment of the kind described in the test.[2]
[1] Cao v MIAC [2007] FMCA 225 (Riley FM, 21 March 2007) at [36] and [42].
[2] Sevim v MIMA (2001) 114 FCR 126 at [71]. See also You v MIAC [2007] FMCA 1064 (Riethmuller FM, 6 July 2007) in which Riethmuller FM stated at [35] that spouses demonstrate different levels of mutual commitment ‘ranging from barely sufficient to enable a marriage to subsist to levels of commitment akin to devotion’.
Having regard to these authorities and principles expounded therein, and the evidence before it including the support and acceptance of the applicant by the sponsor, the Tribunal finds that the evidence of a single past incidence of infidelity by the applicant is not of itself fatal to the existence of an ongoing relationship between the applicant and sponsor in the present case. There is no other evidence or material before the Tribunal to indicate that either the applicant or the sponsor is involved in a relationship with any other person at this time.
Having regard to all of the above holistically and cumulatively, and giving particular weight and significance to the duration of the relationship (over 7 years) and continuing ongoing and genuine commitment demonstrated by the applicant and sponsor to the relationship in their oral evidence before the Tribunal, it finds that, on balance, the weight of evidence supports a conclusion that they are in a genuine and continuing de facto relationship. Although the Tribunal, as indicated above, is not without some doubts arising from some of the material, it has determined to give the applicant the benefit of its doubts in the present case, having regard to the overall weight of evidence and holistic view of all of the circumstances.
On this basis, the Tribunal accepts that the applicant and sponsor have a mutual commitment to shared life to the exclusion of others; the relationship is genuine and continuing; and they live together. Therefore, it is satisfied that the requirements of s.5CB(2) are met at the time of this decision and the applicant meets cl.801.221(2)(c).
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.
DECISION
The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:
·cl.801.221 of Schedule 2 to the Regulations apart from the criterion that the applicant hold a Subclass 820 visa.
Meena Sripathy
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).