HOA (Migration)

[2022] AATA 3440

HOA (Migration) [2022] AATA 3440 (19 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr QUANG CUONG HOA

REPRESENTATIVE:  Mr Brian Quang Dinh (MARN: 1799511)

CASE NUMBER:  1814982

HOME AFFAIRS REFERENCE(S):          BCC2017/2238272

MEMBER:Deputy President Justin Owen

DATE:19 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 19 September 2022 at 4:19pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – no current evidence of pooling of finances – sponsor held on remand – limited recent social recognition of the relationship – no evidence of recent cohabiting – limited awareness of life circumstances – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 65, 362, 379
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.15

CASES

He v MIBP [2017] FCAFC 206

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 June 2017 on the basis of his relationship with his 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.

3. On 2 May 2018 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211 and cl 820.221 because she was not satisfied the applicant was the spouse or de facto partner of the sponsor. The applicant seeks review of the delegate’s decision.  The applicant applied for review of the refusal to grant him a Partner (Temporary) (Class UK) visa on 22 May 2018. The applicant was represented in relation to the review.  

4. On 7 October 2021 the Tribunal wrote to the applicant noting that in order to assess his case, the Tribunal must assess all the circumstances of his relationship in accordance with reg 1.09A (de facto relationship) or reg. 1.15A (married relationship) of the Regulations.  The applicant was invited to provide further information and supporting evidence addressing these considerations, from the time the relationship commenced until the current day.  The applicant, through his representative, provided materials to the Tribunal on 21, 25 and 26 October 2021. 

5. On 31 August 2022, the Tribunal wrote to the applicant through his representative noting it had considered the material before it but was unable to make a favourable decision on this information alone.  The applicant was invited to appear before the Tribunal on 15 September 2022 to give evidence and present arguments relating to the issues in his case.

6. On 6 September 2022 the Tribunal received a signed Appointment of Representative form dated 5 September 2022 as well as correspondence from the applicant’s new representative Mr Brian Quang Dinh. In his correspondence, a request was made to postpone the Tribunal’s scheduled hearing of 15 September 2022 because the applicant had recently tested positive to COVID-19 and he was unable to attend the hearing.  A request was made to postpone the hearing until “after October” with the applicant’s representative stating that according to NSW Health, symptoms and effects of COVID-19 “last for at least 2 months”.

7. The applicant’s representative also provided a medical certificate from Dr Mai Tran of Cabravale Medical centre, dated 5 September 2022 that stated the applicant “in my opinion is unable to attend work from 5 September 2022 to 9 September 2022 to a medical reason. (Hypertension, Headache)”.  A photo of two Rapid Antigen Tests with what appears to be one positive and one negative test was also provided.

8. The Tribunal notes that if a postponement is sought due to an applicant’s illness and a medical certificate is produced, while the certificate will be considered carefully, the Tribunal is not bound to postpone it simply because a certificate has been provided.  Regardless of whether or not a medical certificate is provided, the Tribunal takes all relevant considerations into account in considering the exercise of its discretion.

9. A few hours after this correspondence was received, the applicant’s representative again wrote to the Tribunal stating, “it contains some errors” and asking the Tribunal to “disregard” the email.  The applicant’s representative said further correspondence would be sent the next day.

10. On 7 September 2022, the applicant’s representative again wrote to the Tribunal providing the same information and making the same request for a postponement of the scheduled hearing. 

11. On 8 September 2022, the Tribunal wrote to the applicant through his representative noting that the medical certificate provided only stated that the applicant was unable to attend work from 5 September 2022 to 9 September 2022, and in fact did not mention the applicant was suffering from COVID-19.  The Tribunal does not accept that an anonymous photograph of a positive and a negative Rapid Antigen Test is satisfactory evidence that the applicant has been diagnosed with COVID-19 and is subsequently unable to attend the Tribunal’s hearing.    

12. The Tribunal stated in its correspondence in response to the applicant’s representative that, in the absence of any further corroborative medical evidence, the Tribunal would proceed to hearing at 9.30am on 15 September 2022. 

13. On 9 September 2022 the applicant’s representative responded to the Tribunal.  He stated again that the applicant was “being adversely affected by COVID-19”, did not want to “infect others” and was not well enough to attend the hearing scheduled 15 September 2022.  The applicant’s representative provided a further medical certificate dated 8 September 2022 from the applicant’s GP Dr Ivy Vu of the Cabramatta Family Medical Centre.  The correspondence states that the applicant “is / has been / suffering from a Medical Condition – tiredness, headache, unwell” and was unable to attend his usual occupation for the period 12 September 2022 to 19 September 2022.  No further information was provided.  There was no mention of the applicant being diagnosed with COVID-19. 

14. The Tribunal responded to the applicant’s representative on 12 September 2022 denying the request for postponement and noting the hearing would proceed on 15 September 2022.  The Tribunal was not satisfied with the veracity of the applicant’s claims that he has COVID-19 and was unable to attend the hearing of 15 September 2022.

15. The Tribunal notes that its invitation for hearing of 31 August 2022 advised the applicant that if he did not attend the hearing of 15 September 2022, and a postponement was not granted, the Tribunal may make a decision on his case without further notice.       

16. The Tribunal sent a courtesy reminder of the hearing via SMS to the mobile telephone number the applicant provided on 8 September 2022 and 14 September 2022.

17. The applicant did not return a completed Response to Hearing invitation form to the Tribunal.  No further contact was made by the applicant or his representative to the Tribunal after the Tribunal’s correspondence of 12 September 2022.  The Tribunal notes its invitation stated that if the applicant did not attend the scheduled hearing, then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.  The applicant (and for that matter his representative) is not entitled to assume that the hearing had been adjourned in accordance with his request in the absence of notification from the Tribunal to that effect.

18. The applicant did not appear before the Tribunal on the day at the scheduled time and place. The applicant has not provided any further evidence, submissions or information to the Tribunal between the scheduled hearing and decision.  Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 379A(5) and the invitation has not been returned to sender.  The Tribunal is satisfied the applicant was provided with a “real and meaningful” invitation to appear before it to give evidence and present submissions. 

19. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

20. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Consideration of claims and evidence

21. The issue in the present case is whether the applicant is in a spousal relationship with the sponsor as defined by cl 820.211(2)(a) and cl 820.221.

22. The Tribunal has considered all the evidence in the Departmental file BCC2017/2238272 and the Tribunal file.

    Whether the parties are in a spouse or de facto relationship

23. 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 citizen.

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

    Are the parties validly married?

25. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The parties provided a copy of a New South Wales Marriage Certificate, Registration Number 480868/2017.  The Certificate states the applicant and sponsor were married on 3 June 2017 at 29 Richardson Street, Fairfield, NSW.  The celebrant was Ms Huyen Cecilia Lam. On the evidence, the parties are 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?

26. Two questions that arise before the Tribunal are whether the applicant continues to be the spouse of his sponsor, that is, whether he is currently in a spousal relationship; and if not, whether the applicant satisfies the alternate criteria (child of the relationship, death of the sponsor, or victim of family violence) to be granted a visa (cl 820.221).

27. The Tribunal notes that the applicant provided some evidence at the time of application, and additional information including in response to the Tribunal’s correspondence of 7 October 2021. Since that time, there is no evidence that the applicant and sponsor remained, or are currently in, a spousal relationship. 

    Financial aspects of the relationship

28. In respect of the financial aspects of the relationship between the applicant and sponsor, the Tribunal has considered: the joint ownership of real estate or other major assets; joint liabilities; the extent of any pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day expenses.

29. There is no evidence or claim before the Tribunal of the applicant and sponsor holding any joint ownership of real estate or major assets at the time of decision.  There is no evidence or claim that the applicant and sponsor have any joint liabilities at the time of decision.  The Tribunal finds there is no joint ownership of real estate or major assets, and no joint liabilities at the time of decision.   

30. In relation to the pooling of resources, the Tribunal notes that the applicant and sponsor previously held a joint bank account with Westpac.  The applicant provided the Tribunal with joint bank statements between 2017 and mid-2020.  The Tribunal notes the applicant’s salary was paid into the account each week from his employer and the account enjoyed regular use.  There is however nothing to satisfy the Tribunal that the account was being utilised by the sponsor in any way.  The Tribunal notes there is no evidence of any salary or other financial contributions being made by the sponsor to the account, despite the applicant stating in 2017 that the sponsor was working. 

31. The applicant has also provided the Tribunal with correspondence from Westpac dated 31 July 2020 that states the bank would no longer be able to provide banking services to the sponsor.  The joint bank account was subsequently terminated on 28 August 2020.  There is no evidence or claim made of any joint bank account established after this time. 

32. The Tribunal notes the applicant provided the Tribunal with an undated Corrective Services NSW Depositor Reference Report that lists the applicant as depositor and the sponsor as the offender.  A deposit between $10 and $100 can be made from an individual to a prisoner whilst they are incarcerated.  There is no information listed as to what the applicant provided the sponsor or when.  The Tribunal notes that there was potentially some “pooling of financial resources’ via deposit made by the applicant to the sponsor at some time, though in the absence of further information gives the report limited weight.

33. There is no evidence of any pooling of financial resources after this time.  The Tribunal finds the applicant and sponsor are not pooling their financial resources at the time of decision. 

34. In relation to any legal obligations owing to the other party, the Tribunal notes that the applicant and sponsor each have a Will, with each appointing the other as Executor and Trustee on 4 June 2017.  There is no evidence as to the current status of these documents at the time of decision, some five years later.  The applicant has listed the sponsor as the binding beneficiary of his superannuation account in documentation from 14 October 2021.  The applicant and sponsor also appear to have had a life insurance policy together that commenced in April 2018, though the applicant provided correspondence from the provider seeking overdue payments in May 2019 stating the cover would end the following month if payment was not received.  The Tribunal accepts that the applicant and sponsor have had some legal obligations owing to each other in years past.  Nevertheless, at the time of decision, having also considered how this evidence over the past years and how it may speak to the applicant and sponsor’s relationship at the time of decision, finds that the evidence of legal obligations that the parties owe each other at the time of decision is very limited. 

35. The Tribunal has considered the sharing of day-to-day expenses.  The Tribunal notes the evidence provided from the applicant’s own Westpac bank accounts in 2020 and 2021.  The accounts are regularly utilised it would appear for day-to-day expenses and living.  There is no evidence however of any of these day-to-day expenses being shared by the applicant and sponsor either at that time or now at the time of decision.  The evidence strongly suggests that the account is being used solely by the applicant.   The Tribunal finds that the applicant and sponsor are not sharing day-to-day expenses at the time of decision.  

36. The Tribunal has considered all the evidence before it pertaining to the financial aspects of the relationship.  The Tribunal finds it is not satisfied that this evidence is suggestive the applicant and sponsor remain in a genuine and continuing spousal relationship at the time of decision.  

    Nature of the household

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

38. In relation to any joint responsibility for the care and support of children, there is no evidence before the Tribunal, and no claim made, that the applicant and sponsor have children either individually or together.  There is no claim or evidence that the applicant and sponsor have joint responsibility for the care and support of children.  The Tribunal finds that, at the time of application, there is no joint responsibility for the care and support of children.

39. The Tribunal has considered the parties’ living arrangements.  There is no evidence before the Tribunal that the applicant and sponsor are living together at the time of decision.  The applicant has provided the Tribunal with a range of correspondence addressed to himself at a residence in Catherine Field between 2019 and 2021.  This correspondence includes mail and bills from Toyota, Revenue NSW, GIO, Transport NSW, Allianz, NSW Road and Maritime Services, the NSW Police Force and Medicare.  The Tribunal accepts that the applicant has resided at this address during this period.  The Tribunal notes there is no evidence before it for this period as to the sponsor residing at the Catherine Field address at this time.  There is no evidence before the Tribunal of specific individual correspondence addressed to the sponsor at this address.    

40. The Tribunal notes that for at least some of this period, the sponsor was in fact incarcerated.  The evidence before the Tribunal, as provided by the applicant, is that the sponsor was incarcerated between at least August 2020 and June 2021 on drug supplying charges.  The applicant has provided copies of video meeting appointments held during this period between the sponsor, the sponsor’s family and himself.  The sponsor also appears to have been held on remand in June and July 2019 with the applicant providing two letters addressed to him from the sponsor, whilst an undated Christmas card from the sponsor to the applicant was also submitted in evidence. 

41. The applicant has also provided a copy of a letter dated 9 April 2021 to the Presiding Judge supporting the sponsor.  The sentencing letter requests the Court show the sponsor some leniency and states the sponsor had been at the Mary Wade Correctional Centre. 

42. The Tribunal accepts and takes into account that the applicant and sponsor were essentially prevented from maintaining shared living arrangements due to the sponsor’s criminal charges and convictions for a period of time since June 2019.  The Tribunal does not have any information before it as to the specific length of time the sponsor was incarcerated, or whether she remains so today.  Ultimately in relation to the time of decision criteria, the Tribunal however is not satisfied that the applicant and sponsor have any joint living arrangements. There is no evidence of any correspondence addressed to the sponsor being sent to the applicant’s Catherine Field home in recent years.  The Tribunal has taken into account the obvious impediments caused by the sponsor’s incarceration, and subsequently gives this particular matter limited weight.   At the time of decision, the Tribunal finds the applicant and sponsor’s living arrangements are not suggestive of the parties being in a genuine spousal relationship.

1. In making this finding, the Tribunal has also considered the applicant and sponsor’s claims as to the household they claim to have shared prior to the sponsor entering custody.  The applicant has submitted joint electricity bills addressed to both himself and the sponsor in 2017 and 2018, as well as a copy of a signed standard residential tenancy agreement between the sponsor, applicant and a third party for 6 months from April 2018.  The Tribunal considers the evidence submitted as to the applicant and sponsor’s living arrangements during that period is limited, and the paucity of evidence speaks to the genuineness of the claimed household at that period.  

2. The Tribunal has considered the sharing of housework.  The Tribunal again takes into account the sponsor’s incarceration.  In his statement to the delegate, the applicant stated that he and the sponsor cook, clean and tidy together whilst in his application form he said he would also mow the lawn, vacuum and help with laundry.  There is no evidence however before the Tribunal in relation to the sharing of housework at the time of decision.  The Tribunal finds that the applicant and sponsor are not sharing housework at the time of decision.  Given the sponsor’s incarceration in recent years and the inability of the parties to share housework, the Tribunal has given this matter little weight.  

3. The Tribunal finds ultimately that the evidence before it as to the nature of the applicant and sponsor’s purported household together is very limited, notwithstanding the sponsor’s gaoling for at least a significant period of time. 

   Social aspects of the relationship

4. The Tribunal has considered the social aspects of the relationship between the applicant and sponsor, including whether they represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which they plan and undertake joint social activities.

5. The applicant has provided the Tribunal with a wide range of photographs that claim to be from February 2019 and a “Procession ceremony at the Parents-In-Law”; March 2019 of the applicant with the sponsor’s family; July 2019 of the applicant with the sponsor’s parents; August 2019 with the sponsor’s brother; and December 2019 with the sponsor’s aunt and family.

6. The Tribunal accepts that the applicant is known to the sponsor and her family. The Tribunal     does not accept that the photographic evidence supplied is evidence that the applicant and sponsor remain in a spousal relationship at the time of decision.  There are no statements endorsing the genuineness of the claimed spousal relationship from third parties for more than five years.  The Tribunal accepts the applicant and sponsor may have socialised together, and the applicant is known to the sponsor’s family.  The Tribunal does not however accept that these photographs, which in its opinion are limited considering the claimed duration of the relationship, are compelling evidence of the parties representing themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; or any basis on which the applicant and sponsor plan and undertake joint social activities.  The Tribunal gives them limited positive weight. 

7. The Tribunal has considered whether the applicant and sponsor represent themselves to other people as married.  The Tribunal notes that the applicant did appear to have taken part in some video calls to the sponsor with her family whilst she was in gaol and gives this some positive weight.  The Tribunal accepts in the past the applicant visited the sponsor in gaol at some point, and may have deposited her money at some point through the NSW Corrective Services Depositor system.  The Tribunal notes however that there is no evidence before it as to how the applicant and sponsor present themselves as married to each other at the time of decision. The Tribunal finds it is not satisfied that the applicant and sponsor represent themselves to other people as married at the time of decision. 

8. Similarly, the Tribunal finds there is an absence of the opinion of friends and acquaintances about the nature of the relationship at the time of decision.  The applicant’s aunt and uncle each provided similarly worded Form 888s in support of the relationship in June 2017. These statements contain just a few brief paragraphs of insight into the relationship and why they believed the relationship was genuine and continuing.  The statements state that the applicant and sponsor intended on having children soon.  No updated statements of support have been provided from either family or friends as to the nature of the relationship at the time of decision.  The Tribunal notes that the applicant stated in his correspondence to the sponsor’s sentencing Judge that they had “relationship issues”.  The Tribunal has considered all the evidence before it and finds that there is no evidence, particularly given to the claimed length and duration of the relationship, from friends and acquaintances of the applicant and sponsor in support of their claims to be in a genuine and continuing spousal relationship at the time of decision.

9. The Tribunal has considered any basis on which the applicant and sponsor plan and undertake joint social activities.  The Tribunal has taken into account the applicant’s statement from 2017 to the delegate where he stated he and the sponsor liked to breakfast around Cabramatta; go to the Vietnamese markets; visit their families and in summer go to the beach.  The Tribunal notes the statement that the applicant and sponsor made joint flight and hotel bookings to Perth for July 2018.  The Tribunal has considered the photographs the applicant has subsequently provided the Tribunal of he and the sponsor socialising.  The Tribunal accepts that the applicant is known to the sponsor and her family, and he has had a relationship of some sort with them.  The Tribunal, given the paucity of time of decision evidence before it, is not however satisfied that the applicant and sponsor are continuing to plan and undertake joint social activities at the time of decision.

10. At the time of decision, the Tribunal is not satisfied that the social aspects of the relationship suggest that the applicant and sponsor remain in a genuine and ongoing spousal relationship.

    Nature of persons’ commitment to each other

11. The Tribunal has considered: the duration of the relationship; the length of time the applicant and sponsor lived together; the degree of companionship and emotional support they drew from each other; and whether they saw the relationship as long-term.

12. There is little before the Tribunal as to the nature of the parties’ commitment to each other at the time of decision.  The Tribunal notes the applicant’s then representative on 26 October 2021 wrote that the applicant would provide a statement of relationship at some future stage.  The Tribunal wrote to the applicant through his representative again on 16 December 2021 requesting if the applicant clarify whether they intended to provide any further information to the Tribunal.  No response to this communication was made. 

13. In relation to the length of time the parties lived together, the Tribunal notes the six-month lease that names the applicant, sponsor and a third party that commenced in April 2018 as well as the associated electricity bills that names the applicant and sponsor.  The Tribunal, as discussed earlier in this decision record, appreciates the sponsor has spent a considerable time incarcerated due to criminal charges and/or convictions since 2019.  The Tribunal also recognises the life insurance policy addressed to both the applicant and sponsor at the same address in Cabramatta in 2018.  Based on the little evidence before it, the Tribunal finds it is not satisfied that the parties have lived together since 2019.

14. The Tribunal has considered the claimed duration of the relationship.  The applicant claims he and the sponsor committed to a shared life to the exclusion of all others on 3 June 2017.   In his application, the applicant claimed that he and the sponsor met on 11 April 2015 at a Starbucks at Sydney Town Hall.  In his correspondence of 9 April 2021 to the sponsor’s sentencing Judge however, he claimed he had known the sponsor since 2014.  The Tribunal holds some concerns as to the contradiction as to when the applicant met and subsequently for how long he has known the sponsor.  The Tribunal considers the year in which one person first met the other person they claim to be in an ongoing spousal relationship with is not a particularly onerous or difficult matter to recall.

15. The most recent correspondence the Tribunal has as to the claimed duration of the relationship, and in fact the companionship and emotional support the parties draw from each other is the applicant’s statement to the Judge on 9 April 2021.  In his letter he states the sponsor and he became friends in 2014, they fell in love and got married in 2017.  He states that the sponsor is a wonderful person and “it has been great to share my life with her”.   

16. The Tribunal has considered this correspondence.  The Tribunal notes there is little before it to corroborate the applicant’s claims as to the genuineness of his relationship with the sponsor at the time of decision.  The Tribunal accepts that the applicant did appear to take part in some video visits with the sponsor whilst she was in gaol in 2020 and 2021 and in fact visited in person at least once.  The Tribunal accepts the sponsor also wrote to the applicant from gaol in 2019 whilst on remand.     

17. The Tribunal however considers the correspondence of 9 April 2021 also speaks to problems in the relationship.  The applicant claims the sponsor’s drug supplying charges were “completely unexpected”, and “she may have been using drugs but never told me”.  The applicant also plainly states that he and the sponsor had “relationship issues”.  The Tribunal considers the applicant’s lack of awareness as to the sponsor’s involvement in the drug industry as both a supplier and user speaks either to the applicant’s naivety as her partner, or the more likely scenario in the Tribunal’s opinion, the limited companionship and emotional support the parties were providing each other as spouses. 

18. Ultimately, the Tribunal is required to make a finding as to the nature of the applicant and sponsor’s commitment to each other now, at the time of decision.  On the limited evidence before it, the Tribunal quite simply is not satisfied that the the applicant and sponsor are currently providing each other with companionship and emotional support.  The Tribunal finds furthermore that, at the time of decision, the applicant and sponsor do not see the relationship as long-term.    

19. On the basis of the above, the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision. The Tribunal is not satisfied that at the time of this decision the applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others (s 5F(2)(b)); that the relationship between them is genuine and continuing (s 5F(c)); and they live together or do not live separately and apart on a permanent basis (s 5F(d)). 

20. For the reasons above, the Tribunal is unable to be satisfied that at the time of decision the applicant and sponsor are in a spousal relationship.  Therefore, the applicant does not meet cl 820.221.

21. Given the above findings, the Tribunal did not need to go on to determine whether the applicant satisfied the time of application criteria in cl 820.211(2)(a).

22. There is furthermore no evidence before the Tribunal, or claim made, that the applicant satisfies any of the alternate criteria (child of the relationship, death of sponsor, or victim of family violence) in cls 820.221(2) through to (9).

23. Accordingly, the applicant does not meet cl 820.221.  It follows that the applicant does not satisfy the criteria for the grant of the visa.

    decision

24. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Justin Owen
    Deputy President

    
    

    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).