Khadka (Migration)

[2022] AATA 4897

Khadka (Migration) [2022] AATA 4897 (28 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Manika Khadka

VISA APPLICANT:  Mr Raju Poudel

REPRESENTATIVE:  Mr Biwek Thapa (MARN: 0747526)

CASE NUMBER:  1907038

DIBP REFERENCE(S):  BCC2017/2828418

MEMBER:Linda Holub

DATE:28 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 28 November 2022 at 11:02am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – couple has been married for over five years – parties are validly married – applicants are currently in a genuine spousal relationship – evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act – decision under review remitted  

LEGISLATION
Migration Act 1958, ss 5F,65, 359, 376
Migration Regulations 1994, r 1.15A, Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 March 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 August 2017 on the basis of his relationship with his sponsor, the review applicant. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211. The delegate was not satisfied, and had serious concerns, regarding the genuineness of the relationship between the visa applicant and sponsor as well as their commitment to each other.”

3. because based on the overall information available the delegate was not satisfied and had serious concerns regarding the genuineness of your relationship and commitment to each other.

4. The review applicant appeared before the Tribunal on 18 October and 15 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the sponsor’s brother.

5. The review applicant was represented in relation to the review.

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

BACKGROUND

1. The sponsor was born in 1982 in Nepal and was granted Australian citizenship in June 2019.

2. The visa applicant was born in 1990 in Morang, Nepal and is a citizen of Nepal. He first arrived in Australia 8 October 2010 travelling on a Student visa which was valid until 29 November 2010. He enrolled in a two-year Advanced Diploma of Business Management at the Australian College of Technology and completed a year of studies before withdrawing and enrolling in a further Advanced Diploma of Business Management at Central College (Group Colleges of Australia). He completed three months before withdrawing from the course.

3. On 1 February 2014 the visa applicant was arrested by NSW Police following a report of fighting amongst housemates at the visa applicant’s residence and was subsequently detained at Villawood detention centre on 1 February 2014.

4. While in detention, the visa applicant applied for [a][visa] on 14 February 2014. The Department refused the application 27 March 2014 after which the visa applicant lodged an application for [review]. The Department’s decision was affirmed on 24 June 2014. [In] July 2014 the visa applicant sought judicial review of the [decision] at the Federal Circuit Court. The decision was remitted back to the Tribunal for re-consideration, but the refusal decision was again affirmed.

5. The visa applicant lodged another application at the Federal Circuit Court that was dismissed [date] March 2016. That decision was then appealed at the Federal Court and the case was dismissed [date] August 2016.

RELEVANT LAW

1. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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 who are applicants for the visa need only satisfy the secondary criteria.

Whether the parties are in a spouse or de facto relationship

1. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

2. ‘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 visa applicant’s and review applicant’s 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.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Evidence submitted to the Department shows that the parties married on 24 May 2017. On the evidence, 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).

CONSIDERATION OF CLAIMS AND EVIDENCE

First hearing – 18 October 2022

Evidence provided by the sponsor

1. The sponsor stated that she was previously married in 2006 and the marriage lasted for about six years. She stated it was a marriage arranged by her parents and she married not long before she came to Australia. She told the Tribunal that she separated from him because of domestic violence issues.

2. The sponsor told the Tribunal she came to Australia in 2007 to study accounting. her first husband was a dependent on her Student visa. After she finished her studies, she worked in in a customer service role at a café and then got a job working as an accountant. She has been working for the same company for 2.5 years and her current title is Assistant Financial Analyst with the AVO group which operates in the aged care industry. Evidence before the Tribunal is that the sponsor told NSW Police that she was dentist following an incident at bar. She confirmed that she was never a dentist although, as outlined elsewhere, claimed to be when arrested by police.

3. The sponsor told the Tribunal she has been living in an apartment in Hurstville since 2018. The lease is in her name. Her younger brother shared the apartment with her until he moved to Brisbane 

4. The sponsor stated that she first met the visa applicant at the Star Bar in the Sydney CBD. She stated that she used to go to that bar with her friends and that the visa applicant was there with some friends. After he approached her and they talked, she gave him her phone number. The sponsor stated that she wouldn’t ordinarily give out her number so readily but that it was destiny. The sponsor could not specifically recall how long they spoke before she gave him her number but stated that it was maybe for an hour or so.

5. The sponsor told the Tribunal that she found out about the visa applicant’s visa status just before she went on her holiday to Nepal. She stated that she was not concerned about it because she was deeply in love with him and wanted to be with him.

6. In discussing with the sponsor how long the visa applicant had been unlawful, the Tribunal explained to her that the fact of the applicant being unlawful reflects badly on him and shows that he is prepared to disregard Australia's migration laws. The Tribunal also explained that this would be a consideration in its decision

7. The Tribunal explained to the sponsor that it is concerned that the visa applicant’s motivation was a migration outcome following the lack of success he had with [another] visa process following. The Tribunal explained that the sponsor had met the visa applicant two weeks after his return to Sydney following the refusal of his visa application, unsuccessful appeals to the Tribunal and via two further judicial appeals processes. The sponsor told the Tribunal that she strongly disagrees that his approach to her on the night they met in the bar was for a migration purpose. She stated that she proposed to him. She added that she has frequently been overseas to be with the visa applicant since they met, that they have been married for five years and have a genuine commitment to each other.

8. The Tribunal also explained to the sponsor that it had a concern about the length of time she knew him before she proposed. She responded that she had proposed the same day the applicant told her about his visa status. She stated that even though they had only known each other for two months, they had frequent communication. She stated that from her previous relationship experience, so she knew he was caring and supportive and what sort of person he was after two months, so she proposed. She stated that she had previously been divorced and was looking for a good man.

9. The Tribunal referred to evidence on the Department’s file in relation to an incident where the sponsor was drunk and asked her why she gave false information to the police. The sponsor responded that she was not an alcoholic and did not consciously become drunk. The Tribunal put it to her that she appeared to be conscious enough to provide police with a name that was not hers and tell them that she was a dentist. She responded that this was the first and last time she did something like this. She stated that she believes that someone may have added alcohol to her drink without her knowledge.

10. The Tribunal asked the sponsor why neither of her brothers had been listed as witnesses to provide evidence at the hearing. She cited their return from overseas and work commitments as the reason for their lack of involvement. When asked if either of her brothers would be unable to provide evidence by telephone, she stated that she had not thought about that and then agreed to having the Tribunal call one of her brothers.

Evidence provided by the visa applicant

1. The Tribunal asked the visa applicant why he had stayed in Australia unlawfully for a lengthy period of time. [Details deleted].

2. [Details deleted]. When asked why he had previously responded that he was in Australia lawfully when he had a long period of being unlawful, he responded that there was a translation error. The Tribunal asked the visa applicant if he was claiming the interpreter had made a mistake. He stated he is not saying there is anything wrong with the interpreter.

3. The visa applicant stated that he was in Australia unlawfully for 3.5 [years].

4. The Tribunal put it to the visa applicant that at the time he met the sponsor he had already been in Australia for about seven to eight years, for three and half years of which he was unlawful, and then happened to meet someone once he came out of detention after the failure of his [permanent] visa application processes. The Tribunal asked him if he was looking for an alternative visa pathway given the failure of the [permanent] visa option. He responded that he thought he would return to Nepal but did not do so because of his ongoing case.

5. The visa applicant stated that he cannot forgot the date he and the sponsor met. He stated he was at the bar to celebrate his birthday. He stated that he had many friends and because of his migration status he was feeling low. He told the Tribunal that many Nepalese people go to that particular bar and so he suggested to his friends that they go there for a couple of drinks. The visa applicant told the Tribunal that after he came out of detention, he did not have much confidence to socialise. He stated that when he saw the sponsor there, he felt like he had a good feeling and had to communicate with her. He introduced himself, got her number and then he left. He said there was music playing and that he spoke with her for around five mins. He stated they had been looking at each other prior to him approaching her. He stated that he didn’t look at his watch, but they spoke for about five minutes before he got her number.

6. The visa applicant stated that his parents live in India. He stated that they had moved there in 2011 [reasons deleted].

7. The visa applicant gave consistent oral evidence regarding the sponsor’s current living arrangements and employment.

Evidence of witness

1. The sponsor's brother stated that he strongly believes that the relationship is genuine. He stated that he was at the wedding and unprompted provided the Tribunal with the date of the parties’ wedding. The witness told the Tribunal that their mother passed away a year ago and that the visa applicant helped their dad because none of the children were able to travel from Australia at that time.

2. The witness told the Tribunal that the family was in Nepal in September and witnessed the sponsor and visa applicant together during that time. He stated the family all stayed together at his father’s house. He stated that he saw their daily interactions during that time and that he has never had any doubts regarding the genuineness of the relationship. He stated that his family has given its blessing to the marriage. He stated that the sponsor is now 40 years of age and is very keen to have children and requested favourable consideration of the application.

Concerns put to the review applicant

1. The Tribunal put a number of concerns to the review applicant consistent with the requirements of section 359AA of the Migration Act. The Tribunal explained that it had a number of concerns regarding the credibility of the visa applicant but, as she is the review applicant, the Tribunal is required to put these concerns to her. In outlining the credibility concerns to her, the Tribunal explained the provisions of that section of the Act, the reasons for putting the concerns to her, that she was being invited to comment on or respond to them orally or in writing and that she could do so immediately or seek additional time. It was also explained to her that, subject to her responses, the concerns raised could be the reason or part of the reason the Tribunal affirms the Department's decision.

2. The Tribunal referred to the visa applicant’s evidence that that [details deleted]. In response the review applicant told the Tribunal that she would respond in writing after the hearing. The Tribunal explained to the review applicant that it appears the visa applicant is prepared to give different information in different contexts.

3. The sponsor responded that it is her life now and that she loves this man. She stated that the relationship is genuine, and the whole family knows this.

4. The Tribunal explained that it is required to be satisfied that there is a mutual commitment to the relationship and that it appears that the visa applicant has given conflicting information. She again stated they are in mutual relationship that they are supporting each other and that is their commitment to each other.

5. The Tribunal also noted that the visa applicant and sponsor appear to be telling different stories about the joint bank account. The sponsor responded saying she believes that it was an interpretation issue. She stated the visa applicant deposits funds into the joint bank account. The Tribunal went on to explain that in her outline of the use of the joint bank account the sponsor talked about the account being for their future whereas the visa applicant appeared to think it is a daily transactions account. She responded that the future means when she visits Nepal.

6. The Tribunal agreed to consider post-hearing submissions on the issues of concern raised with the sponsor.

Post hearing written evidence

1. On 2 November 2022 the sponsor provided two statements addressing the concerns the Tribunal put to her at hearing. One of these statements was from her and the second was from the visa applicant.

2. In relation to the issue regarding the parties’ joint bank account in Nepal, the sponsor stated that she confirmed at the hearing that they held a joint bank account in Nepal and that it was used by the visa applicant for his personal expenses. She explained that when she referred to their future it was in relation to when she travelled to Nepal and that they would both use the account. She stated this was the reason why the visa applicant had provided evidence that it was his primary account. She stated that it technically is a joint account as she will be using it when she travels to Nepal but is also used by the visa applicant as his primary account.

3. In relation to the concerns raised at the hearing regarding the visa applicant’s [permanent] visa application, she stated that she had provided a statement from him on this matter. She states that in his written statement the visa applicant has explained what he said during the hearing as well as his evidence at the 2014 hearing held in respect to his [permanent] visa application. She stated that in light of his clarification he has not provided inconsistent information.

4. The sponsor stated that the relevant facts are that [details deleted]. She stated that the visa applicant met while in detention in 2014 were the people who told him about the possibility of applying for [permanent] and how to go about it.

5. The sponsor also wrote that regardless of how the visa applicant came to know about [permanent] visas and given the fact that it is now been more than eight years since he lodged that application, it is not possible for a reasonable person to accurately recall how the visa applicant became aware of [permanent] visas. She further writes that it is not a relevant consideration in determining the genuineness of the parties’ relationship.

6. In his statement, the visa applicant wrote that the reception during the phone call at the first hearing was not always clear and that the sound of the interpreter was breaking up. He stated that when he listened to the audio file of the hearing, he discovered that the interpreter had not always interpreted correctly and that this could be why there was an issue of adverse information.

7. The visa applicant went on to explain the use of the parties’ joint bank account and to explain how he found out that he could apply for a [permanent] visa as outlined in the previous paragraphs in which in the sponsor’s response to the Tribunal.

Second hearing –15 November 2022

Evidence provided by the sponsor

1. In relation to their future plans, the sponsor stated that she really wants to have a baby and that she is going to be 41 next February so time is running out. The sponsor stated that when the visa applicant first comes to Australia, they intend to live in the apartment in which she lives currently. She referred to their interest in purchasing a house and travelling together. She stated that she wants to support the visa applicant in undertaking further studies and support his parents to visit Australia.

1. In discussing the emotional support and companionship that the parties provide each other the sponsor stated that she has been through some difficult events in her life. She stated she lost her mother and sister but was not able to return to Nepal due to the Covid-19 pandemic. She stated that it is the visa applicant who takes care of her father and calls to update her regarding her father. She stated that the visa applicant always provides her with support and that's why she fell in love with him. She also made mention of the support she has provided to the visa applicant during the visa process and more generally.

2. The Tribunal put inconsistent information given by the parties during the first hearing to the sponsor. The information relates to the length of time the parties spoke when they first met at the Star Bar. During the first hearing the sponsor had stated that they spoke for about an hour, although she was not entirely sure of this. However, the visa applicant stated that they had spoken for about five minutes after which they exchanged phone numbers. In response the sponsor stated that, due to her health concerns, her memory is not entirely reliable. She also referred to the fact that she and the visa applicant met five years ago in a noisy bar, and they had both been drinking and that this could be the reason for their differing recollections.

Evidence of the visa applicant

1. The visa applicant gave evidence that they plan for baby and that he wants to study. He stated they would also like to buy a house in Sydney.

2. In relation to emotional support and companionship the parties provide each other, the visa applicant referred to the difficulties faced by the sponsor following the loss of her grandfather, mother and younger sister all in quick succession. He outlined the support he provided to her during that time including some of their conservations. He also stated how she has supported him but mainly referred to instances that occurred during the delay in visa processing he experienced.

Evidence of witnesses

1. The Tribunal was provided oral evidence via telephone by a number of witnesses, as requested by the sponsor, including from her younger brother and a number of friends who were at times her flatmates.

2. The sponsor’s brother, Mr Dipen Khadka, told the Tribunal he truly believes the relationship is genuine and that the parties are committed to each other. He stated that he has witnessed them as a couple and that they are accepted as a couple by family and friends. He stated that he was aware of the relationship from around December 2016 and that the couple spent time with the family in Nepal in September 2022. He stated that the visa applicant provides support to his father in Nepal.

3. The sponsor’s brother stated that he is aware of ongoing contact between the parties and is convinced they are in love each other. He referred to the sponsor’s issues in relation to anxiety and depression. He stated that since the visa applicant departed Australia, the parties call each other regularly and he also has contact with the visa applicant. He stated that they have a family messenger group through which the visa applicant is in contact with the family every three or four days.

4. The witness stated that he has personally witnessed how loving and caring the parties are to each other. He explained that the family stayed together when they went to Nepal to undertake the one-year rituals following their mother’s death and provided examples to the Tribunal of the interaction between the parties

5. Ms Rosee Giri, the sponsor’s friend and ex-flat mate with whom she lived in the second half of 2015 told the Tribunal that she believes the relationship is very genuine and that the parties love each other. She cites the fact that the visa applicant and sponsor have been together for almost seven years as the reason for her belief that their relationship is genuine and that they have a commitment to each other. He stated that she has not seen them personally for some time but is in touch with them on Facebook. She states that she has seen the pictures posted by the sponsor, including those taken when she was in Nepal together with family members. She stated that the sponsor would not post family photos if they weren’t a genuine couple.

6. Ms Giri gave evidence that she lived with the sponsor for about eight months or so and that she was with the sponsor on the night she met the visa applicant. She stated that although she did not meet the visa applicant that night, she knows that they were talking, and that they exchanged numbers. However, it was not until three or four months later that the sponsor introduced the visa applicant to her. After that the visa applicant visited their house frequently and cooked meals. She referred to the various events that have occurred in relation to the sponsor with the death of her mother and sister and that the visa applicant has been very supportive of her.

7. Oral evidence was also provided to the Tribunal via telephone by Ms Mical Achieng Otieno who is an ex-flat mate of the review applicant and the visa applicant. The Tribunal was told that she lived with the review applicant for over 12 months and with the parties from February 2017 until the visa applicant’s departure from Australia in April 2017.

8. Ms Otieno stated that she thought the parties were married when she first moved in because of the manner in which the parties engaged with each other. She stated she was surprised when she was later invited to their wedding. She stated they lived together, cooked together, shopped together and had fun together. She also referred to a conversation she had with the sponsor about the manner in which rent and other bills would be shared between the three of them as well as the way in which the housework was to be shared during the time they lived together.

9. The witness stated that the sponsor did not know about the visa applicant’s visa status until he had to go back to Nepal. She stated that as a friend of the sponsor she asked her why she does not move on after many years and was told by the sponsor that she loves the visa applicant. She stated that she is aware that the parties send messages to each other and talk every day. She stated that she knows that the sponsor and the visa applicant are very keen to have baby and that has not been possible because of them being apart

Non-disclosure certificate

1. There is a certificate made by a delegate of the Minister under s.376 of the Migration Act on the Department's file. That provision permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed. The certificate relates to folio 235 of the Department’s file of BCC 2017/2828418, the disclosure of which, it states, would be contrary to the public interest because it could compromise the effectiveness of the Department intelligence gathering tools, which could potentially weaken the Department's ability to effectively keep Australia and Australians secure from persons who may cause a threat or risk.

2. The Tribunal finds that the certificate is valid and that the information to which it relates is relevant to the decision. The Tribunal explained this to the sponsor at hearing and also explained the reasons for its findings. In addition, the Tribunal explained to her that the information to which it refers (on folio 235) relates to the concerns of the department in relation to the visa application. However, the Tribunal also explained to the sponsor that the folio itself does not raise issues beyond that essentially covered, one way or another in the department's refusal decision. For that reason, the Tribunal was of the view that it would not place any weight on the contents of the folio.

3. The sponsor was provided an opportunity to respond, and the Tribunal indicated to her that she could ask her migration representative to make oral submissions on this issue if she preferred. On that basis, the representative stated that, given what the Tribunal outlined, he concurred with its assessment of the certificate and the relevant information.

Are the other requirements for a spouse relationship met?

Nature of persons' commitment to each other

1. The parties claim that they met on 12 August 2016 at Star Bar where they exchanged numbers and began talking. In mid-September 2016 the sponsor proposed that the visa applicant become her boyfriend and he accepted. Following the visa applicant’s unsuccessful court appeals the visa applicant called the sponsor who was in Nepal and advised her he had to return to Nepal forever. The sponsor told the visa applicant she wished to marry him and, upon her return to Australis. The visa applicant accepted the proposal. They married on 24 May 2017.

2. The Tribunal has had regard to the duration of the relationship and the fact that the parties have been married for over five and a half years. The Tribunal notes the evidence that the parties are in regular contact, and this has been confirmed by family, friends and extensive phone records as well as screenshots of Facebook messenger contact over several years. The Tribunal has had regard to the consistent evidence provided regarding the degree of companionship and emotional support the parties draw from each other. The Tribunal heard consistent evidence regarding their future plans which indicates that they see their relationship as long term.

3. The Tribunal except that the evidence available to the Tribunal is that they satisfy this aspect of the relationship criteria.

Financial aspects of the relationship

1. The Tribunal notes that the parties do not have any joint ownership of assets, nor do they have any joint liabilities. The Tribunal also notes that there is little pooling of financial obligations, but rather the evidence supports a finding that the sponsor remits funds to the visa applicant. In the light of the circumstances of the parties this is not unexpected. Although the Tribunal initially had concerns regarding the oral evidence in respect of the parties’ joint bank account in Nepal, the Tribunal accepts the evidence provided that the account is used by the visa applicant in the main, however is also used by the parties jointly when the sponsor visits Nepal.

2. While the overall evidence regarding their financial aspects of their relationship is not strong, given the circumstances, the Tribunal accepts it is indicative of a genuine relationship.

Nature of the household

1. The Tribunal heard oral evidence in relation to this aspect of the relationship from a former flatmate when the parties first commenced living together. In relation to more recent times, the Tribunal was told of the arrangements of the family including the applicants living together during the sponsor’s recent visit to Nepal. There are no children of the relationship at this stage, however consistent evidence was provided by the parties as well as by the sponsor’s brother in regard to their future plans to have children.

2. The Tribunal again notes that the evidence regarding this aspect of the relationship is not extensive. The Tribunal has had regard to the circumstances of their relationship and the amount of time the parties have been able to live together. The Tribunal is prepared to accept that it is sufficient to support a finding in support of this aspect of the relationship.

Social aspects of the relationship

1. The Tribunal has considered the written evidence in support of the relationship, including photographs provided by the parties. In addition, extensive and highly supportive oral evidence was provided during the course of the hearings.

2. The Tribunal accepts that the parties represent themselves to other people as being married to each other and that, in the opinion of friends and family members, the parties are in a genuine and committed relationship. The parties have had limited opportunity to undertake joint social activities since the visa applicant returned to Nepal however the Tribunal notes the consistent evidence provided regarding the visa applicant’s involvement in ceremonies honouring the sponsor’s deceased relatives.

Summary

1. Initially the Tribunal had a number of issues regarding the relationship between the parties and whether it was contrived for a particular migration outcome. However, the Tribunal accepts the explanations in respect of the various concerns raised by it during the course of the hearings. In addition, the Tribunal has put significant weight on the considerable additional written evidence provided by the sponsor in the context of this review. Whilst it is not necessarily dispositive of the issues at hand, the Tribunal took account of the situation of the visa applicant, the Covid-10 pandemic and the very supportive oral evidence provided by the parties’ family and friends. The provided narrative regarding various aspects of the relationship and its development was largely consistent.

2. Having considered all the evidence, the Tribunal is satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others. It is further satisfied that they are in a genuine and continuing relationship and live together, or not separately and apart, on a permanent basis. There is nothing before the Tribunal to suggest the parties are related by family.

1. On the basis of the above, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

2. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

3. 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 309 visa.

decision

1. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211 of Schedule 2 to the Regulations

   ·cl.309.221 of Schedule 2 to the Regulations.

Linda Holub
Member

Attachment  - Extract from Migration Regulations 1994

1.15ASpouse

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).