KAUR (Migration)

[2019] AATA 3936

KAUR (Migration) [2019] AATA 3936 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Lovepreet KAUR

CASE NUMBER:  1903220

HOME AFFAIRS REFERENCE(S): BCC2014/3582482 BCC2019/416567

MEMBER:Meena Sripathy

DATE:16 August 2019

PLACE OF DECISION:  Sydney

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.820.221 of Schedule 2 to the Regulations.

Statement made on 16 August 2019 at 1:21pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – seven years of cohabitation – benefit of oral evidence from applicant and sponsor separately – anonymous allegations – relationship with a different person – sponsor’s concealment of relationship from parents – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 820.221

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 (the Act).

2. The applicant applied for the visa on 23 December 2014 on the basis of her relationship with her sponsor, Tejaskumar Parikh. 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 (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. By way of history of the application, the Tribunal notes it was initially refused by the Department on 15 November 2016 on the basis of the applicant not meeting cl.820.211(2)(d)(ii), the Schedule 3 criteria.  The applicant appealed the decision to the AAT (differently constituted) (the ‘first Tribunal’) which found that there were compelling reasons not to apply the Schedule 3 criteria and remitted the application to the Department for consideration of the remaining criteria on 4 September 2018. 

4. On 23 January 2019, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221 because the delegate was not satisfied the applicant and sponsor were in a genuine and continuing spouse relationship at time of decision and therefore the applicant did not meet cl.820.221(1)(a), and there was no evidence that she meets cl.820.221 (2) or (3). In reaching this decision, the delegate indicated that, given the findings of the AAT of 4 September 2018 that the applicant met cl.820.211(2)(d)(ii), he was satisfied she met cl.820.211(2) at time of application. 

5. The issue in the present case is whether the applicant meets cl.820.221 at time of decision.  The Tribunal has also, in the course of considering this issue, considered and taken evidence from the applicant on whether the applicant and sponsor were in a genuine and continuing spouse relationship at time of application or any previous time. 

6. The applicant appeared before the Tribunal (differently constituted) on 13 May 2019. Following this hearing, the matter was re-constituted to the present Tribunal and the applicant appeared before it on 7 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and Rodelio Dingle.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The applicant was represented in relation to the review by her registered migration agent, who attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is a 36 year old female Indian national. The sponsor is a 31 year old Australian citizen, born in India. The parties claim to have met initially in 2009, and commenced a long term relationship in January 2012.  They married in September 2012 and claim to be cohabiting continuously since then. 

9. Relevantly to the present matter, the following evidence relating to the relationship was submitted to the Department in December 2018:

   ·The sponsor’s ANZ Bank account statements from December 2017 to October 2018.

   ·Letter from ANZ Bank confirming the applicant as signatory on this account.

   ·Applicant and sponsor’s ANZ debit bank cards.

   ·Residential Tenancy lease agreement in joint names for Rosehill address.

   ·Gas, electricity and phone bills addressed to the applicant and sponsor at this address

   ·Evidence of travel undertaken together in September 2018.

   ·Photos showing the applicant and sponsor in social activities together.

   ·Sponsor’s superannuation statement dated July 2018.

10. Before the Tribunal the following further evidence has been submitted:

    ·Representative’s submission addressing the r.1.15 factors and referring to supporting evidence attached. 

    ·Bank Statements 2016-2019 relating to sponsor’s ANZ accounts in his own name; applicant and sponsor’s joint ANZ account; and letter from ANZ confirming that the applicant is a third party signatory on an account in the sponsor’s name. 

    ·Bank statements relating to Commonwealth Bank accounts held by the sponsor relating to a loan and applicant’s CBA and ANZ bank cards.

    ·Various joint utility bills, telephone bills; Form 888 from Rodelio Dingle; Rajbir Kaur and Govinda Kapoor; invitations to social events.

    ·Sponsor’s family visitor visa application, MLC Beneficiary nomination; photos of wedding celebration of April 2019; evidence of holidays in Jindabyne, Preston; certificate of religious wedding; wedding invitation for April 2019 ceremony; applicant’s mother’s visitor visa application and refusal letter.

    ·Further photos of applicant and sponsor and recent utility bills.

11. At the hearing on 7 August 2019 the applicant, sponsor and witness gave the following evidence (in summary). She stated her current address and said she has been living here for the past 5 years with the sponsor.  When asked if anyone else has lived at this address she said no.  Later in her evidence, when discussing transactions in her bank accounts she said they had some rent paying tenants for short periods.  In his evidence, the sponsor referred to two tenants, Yashpal Singh and Dilpreet Riwari who shared a room and paid rent for one to one and half years.  Prior to this address the applicant said she lived at an address in Parramatta for some years, and after marriage the sponsor moved into this address with her. 

12. The Tribunal asked the applicant if she knew Pawandeep Singh. She said he was a friend of her ex-husband and she knew him when she was in Brisbane.  She was never in a relationship with him. She never lived with him.  She left Brisbane and came to Sydney in September 2009 and has not been in contact with or seen Pawandeep Singh since then.

13. The applicant confirmed her migration history.  She came initially as a dependent on her ex husband’s student visa.  They had problems.  He treated her very badly and demanded money from her.  He took her to India, took her passport and returned without her.  She applied for another passport and came to Australia but he had her visa cancelled.  She had given all her money to him and was in a difficult position, so she stayed unlawfully.  When asked why she returned to Australia if he was treating her this way, she said she could not stay there because of the implications for her of his rejection of her.  She contacted a relative she had in Sydney who told her to come to Sydney.  She found work at a restaurant, but was located by Immigration.  That was when she lodged an application for a visa to remain here. She made several appeals and applications for a visa on this basis but was refused. 

14. The Tribunal asked about the relationship with the sponsor. She said they met at the restaurant she worked at, where he was also working.  They became friends and stayed in touch after she left.  He was nice to her and over time a relationship developed between them. In September 2012 they married and he moved in to live with her.  The Tribunal asked why she did not lodge a Partner visa until December 2014.  She said she discussed this with her agent at that time and she was told she was not eligible to apply and that she needed to wait for two years.  She does not know why she could not be included on his permanent visa application which he was applying for around that time.

15. The Tribunal asked the applicant about her contact with her ex husband.  She has not contacted him since she left Brisbane in 2009.  She believes he may have tried to contact her via the restaurant’s Facebook page but she did not respond.  She  heard he sent some documents about the divorce to her parents but they did not do anything with them. She heard from a friend that he had remarried and after that she found out from the Family Court here that he had obtained a divorce from her already in 2011.  She said she was not aware of this divorce before that. 

16. The Tribunal asked about their decision to marry. Despite not having approval of their families, they decided to marry.  The applicant said that she told her mother about the sponsor prior to her marriage but she was not happy about it.  Later on she has come to see that the applicant is happy and he is a good person and she now accepts the relationship.  The applicant said the sponsor had not told his parents before the marriage. He made some hints to them about a girl he met here but did not tell them much more because he knew they would not accept it.  The sponsor, in his evidence, told the Tribunal they married despite their family’s lack of approval because they wanted to live together.  Eventually, after the marriage, their families have accepted the relationship. The applicant told the Tribunal the sponsor told his family about the marriage when he went to India for his brother’s marriage in December 2014.  He did not visit her family at this time because he did not have time, as he also had some surgery on his nose during this visit.  Her mother was not supportive of the relationship at this time either.  In his evidence, the sponsor said he did not tell his parents about the marriage or their relationship when he visited them in India.  He only told them after their visit to Australia in January 2016.   By that time they had met the applicant in person a few times, and liked her.  This gave him the courage to tell them and since then they have come around and now accept the relationship. 

17. The applicant and sponsor told the Tribunal their families were invited to the wedding ceremony they recently held at the Gurdwara however the applicant’s mother’s visitor visa application was refused and the sponsor’s parents and brother’s applications were lodged too late due to a mistake of the agent in India.  The Tribunal questioned the applicant and sponsor about why the sponsor, being a Hindu, would agree to marry in a Sikh ceremony.  The applicant said it was his decision and he was happy to marry in this way. She said he is very involved with the Sikh temple and has visited many times.  She said she has also visited Hindu temples in India and it is not a big deal for them.  The sponsor in his response said he was happy to do it to make the applicant happy and he had no difficulties or barriers to do so from the priest or temple.  When asked about his parents’ reaction to this he said they did not object and were happy for him to do what he wanted. The Tribunal queried this given his earlier evidence about his fear of their reaction to the relationship initially. He said that by then they had been together for a number of years and the families were used to it and so it was no longer an issue.  The applicant and sponsor gave consistent evidence about family members who attended the wedding and the close friends of the sponsor who were unable to attend due to a commitment in Melbourne, but attended the Hindu puja held the Friday before. 

18. The applicant and sponsor gave evidence about their own and the other’s employment, hours, and how they get to and from work.  The applicant recently obtained work permission and is working fulltime in Eastern Creek.  She gets a bus and train and then an Uber to get to work and the sponsor picks her up at night.  The sponsor gave consistent evidence.  The sponsor works in Macquarie park presently but will be moving to Penrith shortly.  The applicant gave consistent evidence of this. 

19. The parties gave substantially consistent, though general, evidence of their daily routine and household arrangements.  They both attend the same gym and the applicant gave evidence they recently shared a personal trainer for a month or so before their wedding. They go to movies together and last saw Punjabi film with some friends a few weeks ago. Their last holiday was to Melbourne for his birthday last year, they drove there and stayed at places along the way, receipts for which were provided.

20. The Tribunal discussed their financial arrangements.  The applicant said they recently opened a joint account, after being asked previously why they didn’t have one even though she had third party access to his account. Now both their wages go into the joint account and they pay most of their bills from it.  They also still have the other accounts and transfer money between them. The Tribunal asked the applicant about several transactions in the sponsor’s account, including regular rent deposits from individuals Yashpal Singh and Dilpreet.  This is when the applicant acknowledged that they shared the premises with them as tenants previously.  It also asked about Amandeep Kaur who deposited funds several times, she said this is a friend of hers from whom she borrowed money.  Regarding other deposits, the applicant said the sponsor also occasionally drives for Uber and is paid for that and he is in charge of a cricket team and receives moneys and makes transactions with regard to the team.  She said he is mostly in charge of their finances so she is not completely familiar with everything.  She is aware that he has several loans, one with CBA for $10,000 and one with Latitude for $15,000. The loans were personal loans taken in his name only, to pay for various expenses they had including migration agent fees and review application fees.  They have been under financial pressure for some years now and this process has contributed to that stress.  The sponsor when asked about these transactions, confirmed the rent receipts were from individuals who lived with them for periods, and another amount was from a friend who he borrowed money from. He deposited it under the reference “rent” but he was not a renter.  

21. The sponsor told the Tribunal he declared the applicant as a spouse in his tax and he helped her to complete her tax return recently, and declared himself as her spouse.

22. The Tribunal asked the applicant and sponsor about the circumstances of the termination of the pregnancy in 2015.  The applicant became visibly emotional when responding to this.  She said it was a difficult time and difficult decision. It was not a good time for them and they were worried about the instability of her visa situation and the possibility of her going back to India pregnant so they decided, jointly, to terminate the pregnancy but it was very hard for them.  She said they both very much want to have a family and are trying to get pregnant now.  The sponsor was aware of the problems she had after the termination procedure and he accompanied her to the hospital several times.  The sponsor’s evidence on this matter was broadly consistent.   

23. The applicant was familiar with the sponsor’s health issues and recently accompanied him on a visit to a psychologist.  He previously visited a psychologist a number of times in 2017 and 2018 but then stopped because he was better.  When he is not feeling well he is quiet. She supports him by talking to him, hugging him and looking after him.  They have had numerous issues recently that have caused stress including a robbery, his bank account was hacked, they had a car accident and the visa refusal. All of these events have caused mental and financial stress and is taking a toll on them. The applicant tries to be positive and focuses on the good things including that their families are supportive of them now.

24. When asked about matters they disagree about, the applicant said they have arguments about movies and sometimes disagree about housework, for example that he doesn’t make the bed. The applicant stated that she generally does the washing, cleaning and cooking. The sponsor sometimes cooks and helps with other tasks.  She said he cooks most evenings. She was familiar with his current fasting regime and cooks foods he can eat at this time.  In his evidence the sponsor said that the applicant does most of the cooking, though he does some. 

25. The Tribunal discussed with the applicant adverse information before it which could, subject to her responses or comments, contribute to reasons for affirming the decision.  This was information in an earlier decision of a differently constituted Tribunal regarding another visa application, that she gave interviews to the Department in 2009, 2011 and 2012 referring to Pawandeep as her boyfriend, which she later changed to ‘friend’, and that she shared an apartment with him,  which is inconsistent with her evidence given earlier in the hearing about this person where she said she had no relationship and never lived with him.  This together with a dob in to the Department in 2015, saying she was in a relationship, and living with, Pawandeep and her relationship with the sponsor was  not genuine, may lead the Tribunal to have doubts about her credibility and the truthfulness of her claim to be in a genuine spouse relationship with the sponsor. The Tribunal advised the applicant she can respond now or seek additional time to respond. She indicated that she wanted additional time and the Tribunal briefly adjourned to allow her time to discuss with her representative. 

26. Following the adjournment the applicant responded that she has answered this issue fully previously. She is in a genuine relationship with the sponsor and has been since 2012, over 7 years now, and she has never been in a relationship with Pawandeep and does not know or understand why this keeps coming up. It has caused so much stress to her.  She said in the past her ex-husband pushed her to tell the Department she was in a relationship with this man and so she said that even though it was not true. Pawandeep was not a bad person but she was never in a relationship with him. Now she is in a genuine relationship with the sponsor and has given all the evidence to support this and she does not know what else she can give or say to convince the Tribunal. 

27. The Tribunal took oral evidence from Rodelio Dingle.  He met the parties when he was asked by their marriage celebrant in 2012 to be a witness to their marriage.  Since then they have remained friends and he has seen then 5 to 10 times in the last 7 years.  They usually come to his place or they go to a restaurant together.  He believes they are genuine because they visit him together and talk about issues like a genuine couple. For example he is aware of the stress this process is causing them and because the applicant has been unable to work.  Most recently they had dinner a few months ago when they invited him to their wedding in April. He could not attend because of knee surgery.  Prior to that visit they had met some months previously.  He believes they are a couple in love and are living together and trying to make a life together and deserve a chance. 

    Whether the parties are in a spouse or de facto relationship

1. 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, at time of application, was an Australian permanent resident and is now an Australian citizen.

2. As indicated above, the delegate accepted, taking into consideration the findings of the first Tribunal, that the applicant met cl.820.211(2) at time of application. However, the delegate was not satisfied that she and the sponsor continued to be in a spouse relationship at time of decision and therefore did not satisfy cl.820.221.

3. Accordingly, the issue in dispute in the present review is whether the applicant meets cl.820.221, at time of decision.

4. ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

5. On the evidence of the marriage certificate and the applicant’s divorce, the Tribunal accepts the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

   Are the other requirements for a spouse relationship met?

6. The Tribunal has considered all of the evidence now before it, including documentary evidence provided with the application and to the Tribunal and oral evidence provided at hearing covering the circumstances of the relationship, including matters referred to in r.1.15A(3). In reaching its conclusions in this review, the Tribunal is conscious of the history of the application and other visa applications made by the applicant that have traversed some of the issues before it.  Before the Tribunal the applicant has provided substantially more evidence in support of the existence of an ongoing relationship than was available in those other proceedings. The Tribunal also considers the passage of five years since the application, and now seven years of cohabitation, of itself strengthens their claim and diminishes concerns that the Tribunal may otherwise have had (referred to below). The Tribunal additionally had the benefit of a face to face hearing in which it heard oral evidence from the applicant and sponsor separately. 

7. Taking into careful consideration all of the above, the Tribunal finds the weight of evidence supports a conclusion the applicant and sponsor are in a genuine spousal relationship at time of decision. The Tribunal’s analysis of the evidence and reasons for decision follow.   

   Financial aspects

8. With regard to financial aspects of the relationship, the applicant and sponsor have given consistent evidence about how they arrange their financial affairs.  The Tribunal accepts that they have a joint bank account, opened only recently but the applicant has long before that been a third party signatory on the sponsor’s account.  The Tribunal is satisfied that their familiarity with their joint, and each other’s, financial affairs is consistent with a genuine and ongoing relationship. The applicant provided, on request from the Tribunal, statements of their accounts for the past five years. Having considered these statements and the applicant’s and sponsor’s responses to questions about the statements and their evidence generally regarding their financial arrangements and affairs, the Tribunal accepts that the sponsor has been the primary income earner until recently when the applicant obtained work permission and commenced full time work. It accepts they have pooled their financial resources, have access to each other’s bank accounts, have joint utility accounts and share day to day expenses. While they have not made any significant joint purchases or entered any joint liabilities, the Tribunal accepts this is consistent with their description of the financial strain they have been under in recent years, not least because of prolonged visa application processes.

9. The Tribunal finds the evidence of the financial aspects of the relationship is consistent with a genuine and ongoing relationship.

   Nature of the household

10. The applicant and sponsor are living together and have been living together at the same address since 2014. A substantial amount of documentation has been provided to support the claim of cohabitation in this period, including residential tenancy agreements, bank statements and correspondence, utility and phone bills addressed to the parties at this address.  While the applicant was initially not forthcoming that other people have shared the premises with them, she later disclosed this and it was confirmed by the sponsor’s evidence. In light of their claims of financial stress, the presence of additional paying tenants at their two bedroom apartment during this period is reasonably explained on this basis and is not of itself inconsistent with them being in a genuine relationship. The applicant and sponsor answered the Tribunal’s questions about their living arrangements, daily routines and sharing of housework substantially consistently and the Tribunal considered their responses to be credible.  On the other hand, apart from the anonymous allegation made to the Department some four years ago alleging the applicant was living at a different address in a relationship with a different person, no other evidence to support that allegation is before the Tribunal. 

11. Therefore the Tribunal finds the weight of evidence before it supports the claim that the applicant and sponsor live together and have been living together for the past seven years.  The Tribunal considers this period of cohabitation is a strong indicator of an ongoing relationship.

    Social aspects of the relationship

12. The Tribunal has considered the evidence of photos, statements from friends and the oral evidence of their witness at the hearing, in support of the existence and genuineness of their relationship. The parties gave evidence about joint social activities they undertake, including going to the gym, movies, friends’ parties and holidays. 

13. Regarding their relationships with respective families, the Tribunal accepts they were familiar with each other’s family members, but the evidence about the manner and timing of informing their family about the relationship raised some concerns for the Tribunal.  For example, that the sponsor failed to tell his parents about his marriage to the applicant prior to or after they married, even when he spent almost three months in India in December 2014, two years after marrying. Also, that he concealed his marriage to the applicant from them when they visited Australia in October 2015, some three years after the marriage, and the applicant moved out to a different address for the duration of their visit.  This was discussed at some length with the applicant and sponsor at the hearing.  The Tribunal has given careful consideration to their responses and the cultural context of the sponsor’s apprehensions about his parents’ rejection and his internal conflict not to disappoint them. It takes into account the passage of over three years since then and continuation of the relationship. Having regard to all of this it is prepared to accept that the sponsor’s approach to disclosing the relationship to his parents, while not ideally respectful to either the applicant or his parents, does not of itself, or any longer, undermine the existence of a genuine spousal relationship.  

14. Since that time both the applicant and sponsor say their respective parents and families’ have come to accept and support the relationship. In April 2019, they celebrated a religious wedding, in a Sikh Gurdwara in Penrith, and have plans of having a Hindu celebration in future, perhaps in India.  While the Tribunal initially found it odd that the sponsor would participate in a Sikh wedding given he is a Hindu and given his evidence about the issue of the significance of their religious difference to his family, it is prepared to accept their explanation that after seven years together they felt confident to have the wedding they wanted and that the sponsor wanted to celebrate in a manner that would make the applicant happy. They gave evidence that it was a mutual decision to have a Sikh wedding and both sides of the family were invited and accepted it.  The Tribunal accepts on the evidence of the letter, invitations and photos presented that they celebrated another religious wedding in April 2019 and that this demonstrates a mutual commitment to the relationship.  

15. The evidence of the social aspects of the relationship is consistent with a genuine and ongoing spousal relationship.

    Nature of commitment

16. In respect of evidence of the commitment of the parties to each other, the Tribunal has considered the duration of the relationship, since 2012, now a period over 7 years, and that they have lived together throughout this time.  It considers this is a significant length of time. 

17. The Tribunal has also considered their evidence about their plans for the future together, including plans to start a family, save money and buy a house together.  It discussed with them the ways they support each other and is satisfied from their responses that they give each other companionship and emotional support in a manner that is consistent with a genuine relationship and they both see the relationship as long term. 

18. The Tribunal has considered the allegation provided to the Department some years ago now, that the applicant was residing in a relationship with a different person and that her marriage to the sponsor was a fraudulent one.  It put this to the applicant for comment at the hearing and has considered her reactions and responses on this occasion and when it has previously been put to her in previous hearings and review proceedings.  She has consistently denied the allegation.  Her evidence of her knowledge of this individual and lack of contact with him for many years has been consistent.  The allegation was made four years ago and there is no other evidence before the Tribunal that supports it.  On this basis, the Tribunal gives the allegation no weight. 

19. Having regard to all of the above holistically and cumulatively, and giving particular weight and significance to the duration of the relationship (over seven years) and continuing ongoing and genuine commitment to the relationship demonstrated by the applicant and sponsor in their oral evidence, the Tribunal finds the weight of evidence supports a conclusion that they are in a genuine and continuing de facto relationship. Although, as indicated above, it had some doubts arising from the sponsor’s concealment of the relationship from his parents for several years, these concerns have been diminished by the passage of time since then and substantial further evidence of the continuation of the relationship.

20. 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 that the requirements of s.5F(2) are met at the time of this decision and the applicant meets cl.820.221.

21. 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 820 visa.

    DECISION

22. 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.820.221 of Schedule 2 to the Regulations

    Meena Sripathy
    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).