Huang (Migration)

Huang (Migration) [2021] AATA 5004 (24 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Zijun Huang
CASE NUMBER:  1923386
HOME AFFAIRS REFERENCE(S):          BCC2018/3812849
MEMBER:Maxina Martellotta
DATE:24 November 2021
PLACE OF DECISION:  Perth
DECISION:

The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820. 211(2) of Schedule 2 to the Regulations
·cl 820. 221(1) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 24 November 2021 at 9:52am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – applicant is in a genuine relationship – parties validly married at the date of the decision – genuine and committed relationship at the date of decision – credible and honest witness – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss, 5, 65
Migration Regulations 1994 (Cth), rr 1.09, 1.15A, 2.03A, Schedule 2, cls 820.211, 820.221
CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Li v MIAC [2007] FMCA 454
MIEA v Pochi (1980) 4 ALD 139
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 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).
The applicant Ms Huang applied for the visa on 18 June 2018 on the basis of her relationship with her sponsor Mr Fong. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2). The delegate was not satisfied that at the time of the application Ms Huang and Mr Fong were in a defacto relationship.
The applicant appeared before the Tribunal on 9 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Fong.[1]
[1] He was not present when Ms Huang gave her evidence.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether Ms Huang and Mr Fong are in a genuine defacto or spouse relationship.
Whether the parties are in a spouse or de facto relationship
Clause 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 Ms Huang says that at the time of the visa application she was the defacto partner of Mr Fong. She also says that since then as of the date of decision she is the spouse of Mr Fong who is an Australian citizen.
Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).
'De facto partner' is defined in 5CB of the Act, which provides that 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 or married relationship consideration must be given to all 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 1.09A(3) (for de facto) and reg 1.15A(3) (for spouse) which are attached to this decision. Each of the specific matters contained in reg 1.09A(3) /1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Ms Huang and Mr Fong were married on 16 July 2021. The applicant submitted a certified copy of a Marriage Certificate issued by the Registrar of Births, Deaths and Marriages for Western Australia dated 16 July 2021. The certificate records that the parties were married on that date at the Registry of Births, Deaths and Marriages, Perth, Western Australia. This is consistent with the oral testimony provided at hearing. The tribunal is satisfied and finds that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a) at the time of decision.
While the parties were validly married at the time of decision, the parties were not validly married to each other under a marriage that is valid for the purposes of the Act at the time the application was made. Accordingly, they cannot satisfy an essential requirement of a spouse relationship but may meet the time of application criteria based on being in a de facto relationship as defined in s.5CB of the Act.
As the Tribunal has found that the parties were validly married at the date of the decision it is necessary to consider whether the parties meet the requirements for a de facto relationship at the time the application was made and for a spousal relationship at the time of the decision.
In considering these issues and in reaching its decision the Tribunal has considered the mandatory factors in both r.1.09A(3) and r.1.15A(3) together.
The tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, which was submitted by the applicant with the application for review, and other material available to it including material submitted by the applicant to the tribunal.
Evidence provided by the applicant and sponsor
The tribunal notes that there was limited evidence before the Department at the time of its decision. The parties provided the tribunal with additional information about the relationship and their account of its history and attesting to the ongoing nature of the relationship.
The tribunal had the opportunity of taking oral evidence from Ms Huang and Mr Fong. This included evidence regarding the development of their relationship, their relationship history, knowledge of each other’s background and family history, financial, social and household aspects of their relationship and the nature of their commitment to each other. In the tribunal’s assessment Ms Huang and Mr Fong provided consistent and credible evidence.
Ms Huang and Mr Fong provided the following evidence regarding the background to their relationship:
a)Ms Huang is a Chinese citizen she was born on 3 May 1987 (34 years of age). Mr Fong is an Australian citizen he was born on 23 July 1987 (34 years of age).
b)They were introduced by a mutual friend in May 2014. Their introduction was on the basis that they had a common professional background in design and architecture and there was potential for them to collaborate on some projects together.
c)When they met Ms Huang was living with her aunt and Mr Fong lived with his parents in the family home.
d)They commenced catching up for coffee to discuss work. They started to realise that they had a lot in common apart from their business interests. They were both graduates from the University of Western Australia, they both spoke Cantonese and had similar family systems, values and shared similar interests. They both became aware that their relationship was going beyond work. Initially it became more of a friendship and then over time it became romantic. Their relationship publicly commenced in January 2015.
e)As a couple they spent time together socially and with a mutual friendship group. In effect they were dating at this point. Their relationship was brought to a new level in April 2016 when Mr Fong was admitted to hospital following a collapse and he required surgery. Ms Huang was contacted as Mr Fong’s emergency contact and she attended at emergency to be with Mr Fong. It was here that she first met Mr Fong’s parents.
f)It was from this point that they decided their relationship was something significant and ongoing. After his discharge from hospital that Ms Huang started to spent time staying at Mr Fong’s home with his parents. This was due to her being present to provide day to day care of Mr Fong post his surgery but also because she was providing him with a significant level of assistance operating his business whilst he was recuperating.
g)Ms Huang increasingly spent more and more nights at his home and by June 2018 it was apparent that they were in effect living together on a full-time basis.
h)Since then they have continued to live together. They decided to get married partly due to the uncertainty that COVID-19 has created they wanted some certainty and they were married in July 2021.
Financial Aspects
The tribunal has had regard to the evidence provided relating to the financial aspects of the relationship, including joint ownership of real estate or other major assets and any joint liabilities, the extent of any pooling of financial resources, especially in relation to major financial commitments, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of the day-to-day household expenses.
Ms Huang and Mr Fong both gave clear evidence that since the very beginning of their relationship it has been important that they keep their finances independent and separate. This was a mutual decision. Mr Fong told the tribunal that due to him running his own business it was important that Ms Huang not be exposed to any potential business liabilities.
Joint ownership of real estate or other major assets
They have not jointly purchased any major assets or real estate. This is because they continue to live with Mr Fong’s parents and as such there is no necessity for them to contemplate at this point purchase of their own home. Ms Huang and Mr Fong spoke about the cultural role of the eldest son (Mr Fong) providing support to his parents. From their perspective their living arrangement will continue even after they have their own children as it is important that the children have the experience of contact with their grandparents.
Joint liabilities
They do not have any joint financial liabilities.
Pooling of financial resources and liabilities
They have separate bank accounts and do not operate a joint account. Ms Huang told the tribunal she has her own independent income which goes into her personal bank account and likewise Mr Fong’s income from his business ventures goes into his account.
Ms Huang said that if either of them were to purchase a significant asset (for example a car) they would consult each other but it would be their own decision at the end of the day.
Ms Huang and Mr Fong explained that whilst they have separate accounts, Ms Huang has access to Mr Fong’s banking details, and she can access that account if required to pay any bills or expenses.
Whether one person in the relationship owes any legal obligation in respect of the other
Ms Huang says that the establishment of a discretionary trust by Mr Fong demonstrates a joint commitment to their financial future together. They see this as the best way to protect themselves from any potential business liabilities. She has not received any distributions from the trust.
Mr Fong told the tribunal that on the advice of his accountant he established a discretionary trust in 2016. That trust provides that his spouse is a beneficiary. He says that there have not been any distributions made to Ms Huang. A copy of the trust deed was provided.
Ms Huang provided a letter from Mr Fong’s accountant which states that he has advised Mr Fong on business and personal accounting matters since July 2016 and in that time knows Ms Huang to be his partner. He provided strategies to protect personal assets from any business failures and in light of the relationship he advised Mr Fong to keep business and personal banking separate, to not pool assets with Ms Huang and to use a Discretionary Trust structure to hold any joint assets and to distribute income
Mr Fong has named Ms Huang as the beneficiary of his superannuation fund. Ms Huang says that she has not set up any superannuation because she is uncertain about her visa outcome.
Mr Fong pays for Ms Huang’s mobile phone account as his and her phone are both on his account.
Ms Huang and Mr Fong have named each other as spouses in their respective income tax returns since the 2017/18 financial year.
Ms Huang is a co-director with Mr Fong in two private companies
Any sharing of the day-to-day household expenses.
In terms of day to day household expenses again their situation is reflective of their living arrangements. They live with Mr Fong’s parents and as such many of the usual day to day expenses are met by his parents.
They are not expected to pay rent or utilities. They do however contribute to costs such as groceries. They meet these costs from their individual accounts as and when required, they will take it in turns to meet these costs as well as other expenses such as entertainment going out for meals buying gifts.
Nature of the household
The Tribunal has had regard to the evidence as to the nature of the household including joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of the responsibility for housework.
Joint responsibility for the care and support of children
Ms Huang and Mr Fong do not have joint responsibility in this regard. They do not have any children. They intend to start a family at some stage in the future. Ms Huang and Mr Fong said that culturally it is important to them that when they do have children that they continue to live with Mr Fong’s parents at least for a period of time, so that the children have the experience of getting to know their grandparents and are exposed to the cultural values of the family.
Living arrangements
Ms Huang and Mr Fong told the tribunal that following his first hospital admission in 2016 Ms Huang spent increasing amounts of time living together at his family home.
Ms Huang explained that initially she spent nights with Mr Fong to assist and to provide him with care as he recovered from surgery. Their nights together increased to the point by June 2018 where she was in effect living with him at his parents’ home on a full-time basis.
When Ms Huang first started spending nights with Mr Fong it was at [Address 1]. When Mr Fong’s parents decided to move into a new home she moved with the family and since December 2020 she and Mr Fong have lived at [Address 2].
When Ms Huang first started staying with Mr Fong she would sleep in and share his room but would otherwise share the common areas of the home with the rest of the family. This arrangement has continued. When the family moved into [Address 2] property, she and Mr Fong have their own area which includes their bedroom and bathroom which they share – but they otherwise continue to share the amenities of the house with his parents.
Housework
Ms Huang said that once she became a regular presence in the family home, household tasks were undertaken as an entire household shared between herself, Mr Fong and his parents. This continues to be the case to the present day.
As a unit of four they all share tasks such as cooking, cleaning and maintenance of the household. She and Mr Fong clean their own area. Mr Fong perhaps tries to do some of the housework but its not his best point.
Due to her professional background as a landscape designer she has a particular interest in maintaining the garden which she shares with her father in law.
Ms Huang provided photographs showing herself, Mr Fong and his family enjoying the swimming pool, gardening and sharing meals at the [Address 2] property.
Mr Fong’s parents both provided written statements signed and dated 31 October 2021 confirming the living arrangements as described by Ms Huang and Mr Fong.
Social Aspects of the relationship
The tribunal has had regard to the evidence provided as to whether the parties represented themselves to others as being in a genuine de facto relationship and now as being married to each other, the opinion of their friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities.
Representation to others
Ms Huang and Mr Fong provided evidence that as from about January 2015 they represented and were known to friends and colleagues as being in a relationship. This extended to sharing social activities with mutual friends and attending work related functions as a couple. It was from this period that they would introduce themselves as each other’s partner.
They did not make a big announcement as they a both ‘low key’, but they were always together or when the introduced themselves they described themselves as partners.
Ms Huang met Mr Fong’s parents in the circumstances of his first hospital admission in April 2016. After this as she spent increasing time caring for Mr Fong and helping him with his business, she earned their recognition and respect as they could see that she had their son’ best interests.
Mr Fong first met Ms Huang’s parents in early 2015 when her parents were visiting in Australia. They both travelled to Guangzhou in 2018. The tribunal was able to confirm this from boarding passes provided in the bundle of documents.
Ms Huang and Mr Fong provided evidence that Ms Huang’s place in the family became even more established after she travelled to Hong Kong with Mr Fong and his family to attend the funeral of Mr Fong’s grandparent in 2018 and another grandparent in 2019. Ms Huang was increasingly involved in Mr Fong’s family events such as his brother’s wedding in April 2018.
Ms Huang and Mr Fong told the tribunal that they are involved in the WA Australia – Chinese business community. Mr Fong in particular is involved with a range of business councils. They are recognised by that community to be partnered.
Since getting married they continue to represent themselves as partnered. Their marriage was witnessed by family and friends. Ms Huang and Mr Fong have represented themselves to Government agencies such as the Australian Taxation Office as being partnered.
Opinion of their friends and acquaintances about the nature of the relationship
Ms Huang provided evidence in the form of statutory declarations from friends who state that they consider Ms Huang and Mr Fong to be in a genuine relationship. This evidence included the statutory declarations of:
a)Lihong Cai who declared she met Ms Huang and Mr Fong at a business function in 2018 and has since maintained a friendship and knows and considers them to be in a genuine and continuing relationship. Further stating that they are well known in the local Chinese business community and are known to be partnered.
b)Nigel Chen-Tan who declared that he initially met Mr Fong in 2015 and then met Ms Huang the following year when they all attended a mutual friend’s wedding. He has conducted business with them and has maintained a social relationship. He believes their relationship to be genuine and ongoing. He has witnessed the support Ms Huang provided to Mr Fong during his health crisis, has witnessed their co-habitation when visiting them and was invited to their wedding.

Ms Huang had also provided a letter of support from Jia Ang who states that she is a friend of the couple and has known them since early 2017 having initially met through the WA Chinese Chamber of Commerce. They are close friends and has socialised with them frequently. She states that she can testify that they are a genuine and long-standing relationship. The tribunal has also noted a letter provided by Mr Fong’s accountant stating that since handling Mr Fong’s affairs in 2016 he is aware that he and Ms Huang were partners.
Any basis on which the parties plan and undertake joint social activities.
Ms Huang and Mr Fong gave evidence describing how since they started dating in 2015, they have regularly socialised with each other and with friends. Ms Huang provided photographs showing herself and Mr Fong at various family, social and business-related events as well as photographs of each of them undertaking activities such as days out, fruit picking, hiking as well as photos from heir wedding which includes family and friends. These photos are dated from 2015 to 2021.
Ms Huang and Mr Fong told the tribunal that they plan and attend significant milestone events together, which has included Christmas, birthdays, family weddings and funerals. Ms Huang provided photographs depicting them at these events.
Mr Fong’s parents provided a written statement confirming Ms Huang’s involvement in family events and occasions in the years before her marriage to their son.
The nature of their commitment to each other
The Tribunal has had regard to the evidence provided in relation to the nature of the parties’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.
Duration of the relationship
Ms Huang and Mr Fong’s evidence is that they have known each other since May 2014, they started dating in January 2015 – since then their relationship has developed to the present day as a married couple.
Length of time they have lived together
Ms Huang and Mr Fong’s evidence is that following Mr Fong’s first hospitalisation and surgery in 2016 they started living together. Initially this was on the basis of Ms Huang spending days and nights with Mr Fong whilst she still had a home with her aunt, but this arrangement increased until by July 2018 it was apparent she was in effect living full time with Mr Fong and this was when Ms Huang formally changed all her identification and address notifications to reflect this.
Emotional support they draw from each other
Ms Huang told the tribunal that her relationship with Mr Fong deepened when he had his first surgery in 2016. She said she realised that at this point the depth of her feelings and commitment to him. She says that Mr Fong provides her with companionship and understanding.
Mr Fong told the tribunal that Ms Huang provided him support and care following his initial health scare and again when he required subsequent surgery. They consult and support each other in their respective business interests and pursuits. Ms Huang has been an important part of his and his family’s life and has supported him during other significant events such as his grandparent’s funeral. Ms Huang is also very important as a person with whom he can discuss stresses and concerns he has about his work and business. She is very understanding has insights which helps him gain perspective on issues.
Ms Huang and Mr Fong told the tribunal that they both come from conservative families. Initially Mr Fong’s parents who are Christian has reservations about them living together without being married however when they saw how she supported and cared for their son that became less of an issue.
Ms Huang told the tribunal that they have spoken about what would happen if she had to go back to China for a period of time. She said that this would be very difficult for their relationship. Mr Fong may move to China to be with her but it is uncertain. She said it is hard to say because they have spent every day with other for so long it would be very emotional for them to be separated.
Whether they see the relationship as long-term
Ms Huang and Mr Fong said that they made the decision to get married in part due to COVID-19. They felt it was important that the make the commitment particularly given the uncertainty of the pandemic and it was important that Ms Huang’s parents could see that she was married and settled in case something happened to a member of the family.
Ms Huang and Mr Fong spoke about their future plans including starting a family when and if that happens. It is important for them that their children have the family and cultural experience of living in an intergenerational household with their grandparents.
They want to build a financial future together in a way that manages risks and protects any wealth generated through business interests.
Are the criteria for a defacto relationship the time of application and are the criteria for a spousal relationship at the time of decision been met?
The tribunal makes the following findings of fact:
Financial aspects of the relationship
a)Ms Huang and Mr Fong:
·    do not jointly own any real estate or other significant assets
·    do not pool financial assets
·    do not service any joint liabilities
·    meet household expenses such as contributions to groceries from their respective accounts.
b)Ms Huang
·has access to Mr Fong’s bank account details and can make transactions on his behalf
·is a co-director of private companies established by Mr Fong.
c)Mr Fong
·    pays for their mobile phones
·    has established a discretionary trust in which Ms Huang as his spouse is a beneficiary.
Nature of the household
a)Ms Huang and Mr Fong:
·since 2016 have shared accommodation with Mr Fong’s parents
·since July 2018 the living arrangement became permanent
·have shared a bedroom and amenities since starting this arrangement in mid-2016
·contribute to the household tasks such as cleaning, gardening, shopping together with Mr Fong’s parents
·they do not intend to change this arrangement (living with Mr Fong’s parents) in the future for cultural and also practical reasons.
Social Aspects of the relationship
a)Ms Huang and Mr Fong:
·have represented themselves as coupled to friends, colleagues and family since they started dating in 2015.
·they married in July 2021 and represent themselves as spouses.
·have represented themselves as partnered to government agencies
a)Friends and acquaintances have expressed the opinion that Ms Huang and Mr Fong have been in a genuine defacto and now married relationship as evidenced by the statutory declarations and statements provided by third parties describing their relationship.
b)Ms Huang and Mr Fong have planned and undertaken social activities as members of a couple. They spend time together as a family unit, socially and with family and friends. They celebrate and plan major milestone events and occasions together and are invited to attend events or social occasions as a couple.
The nature of their commitment to each other
a)Ms Huang and Mr Fong:
·first met in May 2014 and started dating in 2015
·commenced living together from about May/June 2016 this arrangement became permanent in about July 2018
·have known each other for about seven and half years. They have provided companionship and support to each other since recognising their personal relationship in January 2015.
·describe their relationship as long term and see their future as building a family and a secure financial future
·were married on 16 July 2021.
b)Ms Huang provided Mr Fong significant support and care during his health crisis and continues to provide him with support particularly as he undertakes various entrepreneurial endeavours.
c)Mr Fong provides Ms Huang emotional support and companionship. He gave the example of when her application was refused in 2018, he provides support and comfort to his wife during times of uncertainty and stress.
Other findings of fact
a)Ms Huang and Mr Fong are not related by family they are both over the age of 18 years.
b)Prior to her application Ms Huang was granted a Skilled Regional Sponsored (Provisional) Visa (489).
In this matter, having had the opportunity of observing and testing Ms Huang and Mr Fong’s evidence at hearing, and considering the supporting materials provided and its findings of fact, the tribunal is satisfied that the evidence supports the conclusion that Ms Huang and Mr Fong have a mutual commitment to a shared life to the exclusion of all others and that it is a genuine and continuing relationship.[2]
[2] While the prescribed matters must be considered in Partner visa cases, they are not criteria that must each be satisfied - Li v MIAC [2007] FMCA 454 at [73]. The Court stated the Tribunal decision would have involved jurisdictional error ‘if the Tribunal had taken the view that, to meet the criteria, the applicant must have pooled her financial affairs with the sponsor’s…’. Decision upheld on appeal in Li V MIAC [2007] FCA 1098.
Their decision not to pool finances is a joint decision is motivated by a desire to ensure that Mr Fong’s business enterprises do not adversely impact upon their individual circumstances. The lack of joint ownership of any significant assets is explained by the circumstances of their living arrangement and the cultural importance of living within an inter-generational household with Mr Fong’s parents. To a large extent their living arrangements also dictates how household tasks are allocated and undertaken by the extended family unit.
The tribunal is also satisfied that since May/June 2016 Ms Huang and Mr Fong have lived together and not separately or apart on a permanent basis. For these reasons, the Tribunal is satisfied and finds that:
a)The requirements of s 5CB (2) are met at the time the visa application was made.
b)At the time the application was made on 18 June 2018, Ms Huang was the de facto partner of Mr Fong who is an Australian citizen and is not prohibited by cl. 820.211(2B) from being a sponsoring partner.
c)At the time of application Ms Huang was the holder of a substantive visa.
d)The requirements of cl. 820.211(2) are met by Ms Huang.
e)At the time of decision Ms Huang and Mr Fong have a mutual commitment to a shared life as a married couple to the exclusion of all others and that the relationship is genuine and continuing. The tribunal is further satisfied that at the time of decision the parties are not living separately and apart on a permanent basis.
f)Ms Huang meets the requirements of s.5F(2) at the time of the decision and meets the requirements of cl.820.221(1) at the time of this decision.
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). The tribunal is satisfied that at the time of the application Ms Huang and Mr Fong were at least 18 years of age.
Ms Huang must also have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa. In this matter there is no evidence that the relationship was registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa. Therefore Ms Huang and Mr Fong must meet the 12-month requirement.
In this case, Ms Huang made her application on 18 June 2018. Ms Huang says, and the tribunal finds that she and Mr Fong became committed in about June 2016 following his first hospital admission. Since that date she and Mr Fong commenced co-habituating on a regular basis at his parents’ home and Ms Huang increasingly became integrated into the family household.
The task for the tribunal is to consider all relevant circumstances and evidence of the relationship in determining whether on balance the requirements that define a genuine and continuing relationship and a mutual commitment to a shared life to the exclusion of all others are met where the parties are living together or not separately and apart on a permanent basis. In this regard the tribunal is to also consider relevant evidence of events that has occurred after the date of application insofar as it provides assistance in the task of determining whether the applicant and sponsor were in de facto relationship in the 12-month period prior to the application. Such evidence is relevant if it tends logically to show the existence or non-existence of factors relevant to be determined.[3]
[3] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Pochi (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].
Considering its findings of fact, the tribunal is satisfied that Ms Huang and Mr Fong were in a de facto relationship in the 12 months ending immediately before the date of the application. The tribunal is satisfied and finds that the additional criteria of a de facto relationship are met.
For these reasons the tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.
In this matter, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820. 211(2) of Schedule 2 to the Regulations
·cl 820. 221(1) of Schedule 2 to the Regulations
·reg 2.03A
Maxina Martellotta
Member

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).
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).

[2021] AATA 5004

24 November 2021

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