Khaled (Migration) - [2022] AATA 2789

Khaled (Migration) [2022] AATA 2789 (20 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Hanane Khaled
VISA APPLICANT:  Mr Emad Elsayed
REPRESENTATIVE:  Mr Iyare Lucky Ehimudiamen (MARN: 1461010)
CASE NUMBER:  1923413
DIBP REFERENCE(S):  BCC2017/367424
MEMBER:Mila Foster
DATE:20 May 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 20 May 2022 at 1:56pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 August 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 27 January 2017 on the basis of his spouse relationship with his sponsor, the review applicant. 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). They include cl 309.211 and cl 309.221. Clause 309.211 requires that at the time of application the visa applicant is the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen: cl 309.211(2), or intends to marry such a person: cl 309.211(3). Clause 309.221 requires that at the time of decision the visa applicant continues to satisfy cl 309.211.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2)(a) because the relationship between the visa applicant and review applicant (the parties) was not genuine and ongoing.
The review applicant appeared before the Tribunal via video on 7 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter and the visa applicant.[1]
[1] The review applicant had asked the Tribunal to take oral evidence by telephone from one of her sisters in Lebanon however the Tribunal was not able to make contact with the sister.
The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Having considered the claims and evidence, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicant claims to be the spouse of the review applicant who is an Australian citizen. The issue is whether the parties are in a spouse relationship.
‘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.
In considering the requirement that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others the Tribunal notes that people enter into marriages with a variety of purposes and motives.[2] It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, for example with the hope of becoming eligible to reside in a particular country.[3] Whether the relationship between the parties is a genuine and continuing relationship is a question of fact to be determined by the Tribunal as a matter of inference and conclusion to be derived from all relevant evidence.[4] As this involves consideration of the subjective intentions of the parties to the relationship, issues of credibility of the parties to the relationship may assume particular importance.[5] Nevertheless, the credibility of a visa applicant in asserting the existence and nature of the relationship is not necessarily decisive.[6]
[2] Kumar v MIBP [2015] FCCA 3161 at [13].
[3] Re MILGEA and Dhillon [1990] FCA 144 citing with approval Street CJ in R v Cahill (1978) 2 NSWLR 453 at 458, and Garcevic v MIAC [2012] FMCA 931 at [34].
[4] Chand v MIMA [1997] FCA 530.
[5] Singh v MIEA [1996] FCA 1429 at [13], [24].
[6] MIMA v Asif [2000] FCA 228 at [20].
The evidence before the Tribunal includes the Department file relating to the visa application,[7] a written record of a telephone interview conducted by an officer of the Department with the visa applicant on 25 March 2019,[8] documentary and photographic evidence submitted on review, the oral evidence given at the Tribunal hearing, oral submissions made by the representative at the hearing, Department movement records, and Tribunal files relating to other previous visa applications made by the visa applicant.[9]
[7] Department file number BCC2017/367424 (DF).
[8] On the Department file.
[9] Migration Review Tribunal (MRT) case number 1011095, MRT case number 1400630, Refugee Review Tribunal (RRT) case number 1420618.
Background and summary of claims
The following is based on the claims and evidence before the Tribunal. The Tribunal’s findings on material questions of fact are made further below.
The review applicant is a 41-year-old dual national of Lebanon and Australia. She was born in Lebanon and acquired Australian citizenship after arriving in Australia on a partner visa in October 2003. Her (first) husband died in April 2004 and her daughter was born in October 2004. The review applicant has no immediate family members in Australia other than her daughter. Her parents and several siblings reside in Lebanon.
The visa applicant is a 32-year-old Egyptian national currently living in Egypt. His mother, sisters, former wife and two children also live in Egypt. He has two brothers who are citizens and residents of Australia. At the Department interview the visa applicant said his brothers travelled to Australia on student visas, they obtained residence through partner visas, and both brothers had divorced their Australian partners and married Egyptians.
The visa applicant applied for an Australian visitor visa in October 2010 for which he was sponsored by one of his brothers, Ahmed Elsayed.[10] The visa applicant was initially refused the visa but after successfully applying to the Migration Review Tribunal (MRT) for review, he was granted a visitor visa in May 2011. At the MRT hearing, the visa applicant’s brother stated that he came to Australia as a student, gained permanent residence through an onshore spouse visa and was an Australian citizen.[11] As stated in the MRT’s decision record, Department movement records show that Ahmed acquired permanent residence in October 2008.[12] He told the MRT that he divorced (his Australian spouse) and remarried in 2009, and that his second wife and their child were living in Egypt.[13]
[10] DF, f.18.
[11] MRT decision record 1011095, [19].
[12] MRT decision record 1011095, [63].
[13] MRT decision record 1011095, [26].
The visa applicant visited Australia from August to September 2011.
The visa applicant married his first wife in Egypt in October 2011. Their first child was born in October 2012.
In November 2013 the visa applicant applied for another Australian visitor visa. That time he was sponsored for the visa by his second brother, Mohamed Elsayed.[14] After initially being refused the visa, the visa applicant was granted a visitor visa in June 2014 after successfully applying to the MRT. His brother told the MRT in May 2014 that he entered Australia on a student visa, was granted an onshore spouse visa, and had become an Australian citizen in 2009.[15] The visa applicant’s brother said he had previously been married in Egypt and had divorced his first wife in 2008.[16] He said he and his Australian wife divorced in 2011 and they did not have any children together.[17] He said he remarried his first wife in 2013 and they had three children.[18] The MRT noted that both the visa applicant’s brothers had overstayed and applied for permanent visas onshore and questioned the visa applicant’s incentive to return to Egypt.[19] The visa applicant’s brother responded that he could understand the Tribunal’s concerns about the brothers’ migration history but their circumstances were different (to those of the visa applicant).[20]
[14] DF, f.18.
[15] MRT decision record 1400630, [17].
[16] MRT decision record 1400630, [17].
[17] MRT decision record 1400630, [17].
[18] MRT decision record 1400630, [17].
[19] MRT decision record 1400630, [21].
[20] MRT decision record 1400630, [23].
The visa applicant arrived in Australia in August 2014. At the Department interview he said his first wife was upset that he left her when she was pregnant and requested a divorce. At the Tribunal hearing he said he divorced his first wife verbally in accordance with the Islamic religion before he arrived in Australia.
In September 2014, the visa applicant applied for a protection visa and was granted a bridging visa which permitted him to remain in Australia until his protection visa application was determined. Later that month his first wife gave birth to their second child.
The visa applicant stated in the Partner visa application form that the parties met at a shopping centre in Bankstown on 20 October 2014. He said they were immediately attracted to each other and exchanged telephone numbers. The review applicant stated on the sponsorship form that the parties met in Sydney on 1 October 2014. At the hearing the review applicant said the parties met when the visa applicant asked her about a shop; after they chatted, she gave him her telephone number because she thought he needed help.
In December 2014, the visa applicant was refused a protection visa and applied to the Refugee Review Tribunal (RRT) for review. Less than a week later he and his first wife divorced officially.
The visa applicant claimed on the Partner visa application form that the parties committed to a shared life to the exclusion of all others on 15 January 2015. The review applicant did not respond to the question on the sponsorship form asking when the parties committed to a shared life to the exclusion of all others. In a statutory declaration made on 1 April 2021 and submitted on review, the review applicant stated that the parties started their relationship soon after meeting on 20 October 2014.[21] At the hearing the review applicant said the visa applicant had a sharia divorce (from his first wife) when they commenced their relationship although she did not know exactly when the sharia divorce occurred.
[21] At [4].
The visa applicant and review applicant married in Sydney on 6 March 2015 and began living together.
In August 2016 the RRT affirmed the decision to refuse the visa applicant a protection visa. The RRT made an adverse credibility finding in relation to the visa applicant in its decision record:
After considering all of the relevant evidence, I do not find the applicant to be a truthful or a credible witness. I do not accept that he has ever been a member of the MB or the FJP or that he or any other member of his family has ever been threatened or harmed by anyone because he belonged to these groups in 2012 or 2013. I find that these claims were concocted by the applicant in order to support his claim for a protection visa.[22]
[22] RRT decision record 1420618, [73].
In September 2016 the visa applicant sought judicial review of the RRT’s decision.
On January 2017 the visa applicant was granted a bridging visa which permitted him to depart Australia. He travelled to Lebanon with the review applicant and the review applicant’s daughter. They were in Lebanon for about two weeks from late January until early February 2017. During that time the visa applicant lodged his Partner visa application with the assistance of a migration agent, Therese Nicholas.
In May 2017 the visa applicant discontinued his application for judicial review and departed Australia to return to Egypt because his mother was unwell. He did not have a visa permitting him to return to Australia and has been residing in Egypt since.
Review applicant’s citizenship
Submitted in connection with the visa application was a photocopy of the biodata page of the review applicant’s Australian passport which states she is an Australian national. Department movement records also indicate that she is an Australian citizen. The Tribunal thus finds that at the time of application and the time of decision the review applicant was an Australian citizen.
Are the parties validly married?
The Tribunal has before it the parties’ NSW marriage certificate. It states that the visa applicant was divorced and that the review applicant was widowed when they married in Lakemba on 6 March 2015. The Tribunal has before it a death certificate which indicates the review applicant was widowed as a result of her husband’s death in April 2004. The Tribunal has before it an Egyptian divorce certificate which indicates the visa applicant was divorced on 22 December 2014. On the basis of this evidence, the Tribunal finds that the parties were married to each other on 6 March 2015 under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
The considerations in r 1.15A(3)
The review applicant provided a considerable amount of documentary and photographic evidence about the nature of the parties’ relationship to the Tribunal prior to the hearing. The Tribunal nevertheless had concerns about the genuineness of the parties’ relationship and the nature of the visa applicant’s commitment given the evidence and information before it regarding the visa applicant’s previous marriage, his migration history, the migration history of his two brothers, and the credibility findings made by the RRT. The Tribunal raised its concerns with the visa applicant at the hearing. He stated that he verbally divorced his first wife in accordance with the Islamic religion before he came to Australia in August 2014. He said she subsequently sought and obtained an official divorce in December 2014. The visa applicant said he did not believe his brothers had done anything illegal and he had told the RRT the truth but he was not believed. Although the Tribunal is not entirely satisfied with these responses, the oral evidence the parties gave at the hearing about their relationship was consistent in significant respects with each other as well as the written and documentary evidence provided to the Department and Tribunal. Further, the review applicant’s daughter was a credible witness and the oral evidence she gave at the hearing supported the parties’ claims about importance aspects of their relationship. The Tribunal has thus accepted the parties’ claims about the various aspects of their relationship.
Financial aspects of the relationship
The visa applicant stated on the visa application form that the parties had a joint bank account which they used for daily living expenses. He said the review applicant sorted out their bills and planned their budget, and they shared all their expenses. He submitted bills for utility accounts in the parties’ names and joint bank account statements in support of his visa application. The utility bills related to a property in Yagoona; some of the bills were addressed to the parties at an address in Bankstown. The bank statements show regular cash deposits into a joint account held by the parties but no Centrelink payments. This suggests that review applicant had another bank account.
At the Department interview the visa applicant stated that the parties opened a joint bank account two months after they married and used the account for ‘everything’. He said he worked as a cleaner. He said one of the review applicant’s sisters sent him some money because the parties were planning to buy a car. He provided a copy of the money transfer receipt in support of his visa application. However, the review applicant’s evidence at the hearing about the car and money transfer was unclear and vague. She said the care was ‘for her’ and seemed unsure about the money transfer.
In the statutory declaration the review applicant made on 1 April 2021, she said her Jobseeker payments and the visa applicant’s wages for his work as a cleaner were paid into the parties’ joint bank account and the account was used to pay their day to day living expenses.
In a statutory declaration made by the visa applicant on 30 March 2021 submitted to the Tribunal, he said he worked as a cleaner while the review applicant received a Jobseeker payment. He said they pooled their resources; his wages and her Jobseeker payment were paid into the parties’ joint bank account. He also stated that the parties paid their day-to-day expenses from that account. Attached to his statutory declaration was a further bank statement for the parties’ joint bank account. The bank statement showed Jobseeker payment deposits, some deposits identified as wages and other unspecified cash deposits of several hundred dollars.
The oral evidence the review applicant gave at the hearing about the financial aspects of the parties’ relationship was largely consistent with the evidence given in connection with the visa application and the documents submitted on review prior to the hearing.
The Tribunal accepts that the parties had a joint bank account into which the review applicant’s Jobseeker payments and the visa applicant’s wages were deposited and that they used the account for their day-to-day household expenses. This pooling of financial resources and sharing of household expenses is indicative of a spouse relationship.
Nature of the household
The visa applicant indicated on the visa application form that he and the review applicant lived at the same Yagoona address. He stated that the review took care of the house and most of the cooking; he helped with heavier housework, they shopped together, and he often helped to drop off and pick up the review applicant’s daughter from places. A copy of the birth certificate of the review applicant’s daughter was submitted in connection with the visa application. At the Department interview the applicant stated that the parties lived together in a unit.
Documents submitted in support of the visa application included tenancy related documents and Centrelink income statements. The former indicated that the parties were residing together at a property in Yagoona. The latter indicated that as at September 2017 the review applicant had declared to Centrelink that she had a partner but as at January 2017 and August 2018 she declared she did not have a partner. Why she did not declare she had a partner at those times is not apparent. According to the Form 80 the visa applicant completed and submitted in connection with the visa application he had lived at the Yagoona address since March 2015. He disclosed no Bankstown address on the Form 80.

In the statutory declaration she made on 1 April 2021, the review applicant stated that the parties lived together at the Yagoona address from the time of their marriage. She said the property had two bedrooms; the parties shared one room and the other room belonged to her daughter. Annexed to the statutory declaration were documents showing the equal rent contributions made by the review applicant and the visa applicant. The review applicant said she was mainly responsible for the grocery shopping but sometimes the parties did the shopping together. She said she was largely responsible for cooking, cleaning the house and the laundry. However, the review applicant helped out; he vacuumed from time to time. He also did all the heavy lifting and fixed light bulbs and taps. She said she and the visa applicant prayed together, usually morning and evening prayers.
In the statutory declaration he made on 30 March 2021, the visa applicant also stated that he and the review applicant had lived at the Yagoona address since they married. He said the review applicant’s daughter lived with them. He said the parties shopped for groceries together. The review applicant was mainly responsible for the cooking, cleaning and laundry but he assisted from time to time. He was responsible for taking out the rubbish, moving heavy objects and fixing things. He said he and the review applicant prayed together. He said he drove the review applicant and her daughter to appointments and to see friends.
The review applicant’s daughter stated in her oral evidence that the visa applicant was the father figure she never had. She said he was very supportive of her. She stated that their apartment was up three flights of stairs and the visa applicant would carry everything and helped her mother when her back was hurting.
The oral evidence the review applicant gave at the hearing about the nature of the parties’ household was consistent with the evidence given in connection with the visa application and the documents submitted on review prior to the hearing.
In relation to his return to Egypt in May 2021, the visa applicant stated at the hearing that his mother was very unwell; she was dying and he had to see her. Submitted on review was a medical record indicating that the visa applicant’s mother was admitted to the cardiac intensive care unit of a hospital in Egypt in February 2021.
The Tribunal accepts that the parties lived together at the Yagoona address from the time they married until the visa applicant departed Australia in May 2021. The Tribunal accepts that the visa applicant has shared in the care and support of the review applicant’s daughter and that the parties shared the housework as claimed. The Tribunal accepts that the visa applicant returned to Egypt because his mother was unwell and has not been able to return to Australia because he does not have a visa. Thus, the Tribunal finds that the parties’ intention is for their separation to be temporary.
Social aspects of the relationship
On the visa application form the visa applicant stated that the parties socialised with their small group of friends and his brothers; they usually went out on weekends because the review applicant’s daughter was young.
Submitted in support of the visa application were a few unannotated photographs. They appear to be of the parties’ wedding and the parties in different settings mainly with other people. Also submitted were flight booking documents and two statutory declarations (Form 888 forms). The flight bookings indicate the parties and the review applicant’s daughter travelled to Lebanon together in early 2017. One Form 888 was completed by a friend of the review applicant and the other was completed by a neighbour of the review applicant. Each declarant gave their reasons for believing that the parties’ relationship was genuine.
At the Department interview the visa applicant said the parties had a small wedding party at a club; 50 guests attended including his brothers, friends, and the review applicant’s daughter. He said his family in Egypt had no problems with the parties’ relationship. He said the review applicant called his mother, sisters and nieces. He said the parties were members of an Egyptian group and they attended all the social events organised by the group. He said that during the parties’ trip to Lebanon, he met the review applicant’s parents, sister and cousins. The parties stayed with one of the review applicant’s sisters on the first day, moved to the review applicant’s father’s house, and then he spent the rest of the time in a hotel while the review applicant remained with her family.
The review applicant submitted photographs to the Tribunal. They included photographs said be of a dinner in April 2021 before the review applicant left Australia and the review applicant’s mother arriving (in Australia) in January 2022. The review applicant said the parties were accepted by their family and the community. She said her daughter was very supportive. She said the parties attended family gatherings with the visa applicant’s brothers and annexed a statutory declaration (Form 888) made by the visa applicant’s brother Mohamed Alsayed in which he provided his reasons for believing the parties’ relationship was genuine and continuing. Also annexed to the review applicant’s statutory declaration were photographs said to be of the parties celebrating her most recent birthday, and attending social gatherings and events with the visa applicant’s brothers and the Egyptian Society. The review applicant stated that she and the visa applicant usually attended mosque. She said the parties travelled to Lebanon together with her daughter in January 2017. She said they stayed wither her family in Akkar and her sister Ahlam Khaled in Tripoli as well as at a hotel in Tripoli. Annexed to the statutory declaration were photographs of the parties with her family in Lebanon.
In the statutory declaration the visa applicant made on 30 March 2021, he stated that the parties’ relationship was supported and accepted by their families and community. He said their friends and family, including his brothers, attended the parties’ wedding. He said his parents spoke to the review applicant on the phone. His daughters knew the review applicant and spoke to her on the phone at least once a month. He annexed photographs of the parties at the Sydney Fish Market and on outings at various other locations, attending an Egypt Society barbeque and a friend’s engagement party. Also annexed to his statutory declaration was a statement and statutory declaration – one made by a friend, Jehan Taleb, and another made by Hazem El Wasal El Sayed Yousef El Gadi. Mr Taleb said he was a friend of the visa applicant and detailed why he believed the parties relationship was genuine. Mr El Gadi said the visa applicant was his best friend’s youngest brother, he saw the visa applicant three times a week and attended the parties’ wedding. He too outlined why he believed the parties’ relationship was genuine.
Also submitted on review was a written statement dated 5 April 2021 from the review applicant’s sister, Ahlam, in which she outlined her interaction with the visa applicant. She said she stayed with the parties in Australia for five months from August 2016 and stated that she believed the relationship was genuine. She stated that the parties had visited the review applicant’s family in Lebanon in 2017.
At the hearing the review applicant’s daughter stated that the visa applicant was introduced to her mothers’ brothers and sisters on their trip to Lebanon and that they stayed in the homes of her uncles and aunts. She said she facetimed the visa applicant’s daughters, but their relationship was not close due to the huge age gap. She said the visa applicant’s family had a huge impact on her mother, providing her mother with a family in Australia that she had not had.
The oral evidence the review applicant gave at the hearing about the social aspects of the parties’ relationship was consistent with the evidence previously provided to the Department and Tribunal.
The delegate drew an adverse inference from information the visa applicant gave at the Department interview about the parties’ living arrangements during their trip to Lebanon. At the hearing the visa applicant said he did not state that he stayed in a hotel during the whole of the visit; he was at the hotel sometimes. The review applicant corroborated this. She said someone had died and having a hotel room was convenient due to the difficult circumstances.
The statutory declarations and written statements referred to above from family, friends and acquaintances of the parties seem to have been written in the words of each individual, they contained details about their interaction with the parties and were specific about why they believed the parties’ relationship was genuine. This makes those statutory declarations and statements credible in the Tribunal’s view. The evidence indicates that the parties represent themselves as a married couple to their family, friends, neighbours, and the Egyptian community in Australia. The Tribunal regards the evidence of the review applicant’s daughter as especially compelling given she has lived with the parties for 6 years and observed their relationship on a day-to-day basis. The evidence indicates that the parties have undertaken a range of social activities together as a couple and with family and friends in Australia and during their visit to Lebanon. In relation to what the visa applicant said during the Department interview about staying in a hotel during the parties’ trip to Lebanon, it is possible that the officer conducting the interview had misunderstood the visa applicant or did not accurately record what the visa applicant said. In the absence of an audio recording of the interview and on the totality of the evidence the Tribunal accepts that the parties stayed together during the trip to Lebanon as they claimed. The Tribunal finds that the evidence regarding the social aspects of the parties’ relationship is a significant indicator of a genuine relationship and a mutual commitment to a shared life as a married couple.
Nature of persons' commitment to each other
The visa applicant stated on the visa application form that the parties supported and helped each other with their stresses and problems, they were committed to ensuring the review applicant’s daughter had a good stable home and future, and the parties hoped to have a child together. The review applicant made similar claims at the Department interview.
In the statutory declaration the review applicant made on 1 April 2021, she stated that the parties were in a genuine continuing relationship as husband and wife to the exclusion of everybody. She said the review applicant supported her emotionally including in her search for retail work and particularly during the COVID-19 pandemic. She and the visa applicant tell each other they love each other, and talk about their health and wellbeing. The review applicant takes her to medical appointments and supports her emotionally. Annexed to her statutory declaration was a letter from Dr Aiman Alsayed which stated that the visa applicant was the review applicant’s husband and her next of kin. The review applicant said the parties’ plans for the future were to buy a property, live together, visit the review applicant’s family in Egypt, and visit her family in Lebanon. At the hearing she expressed similar plans for the future with the visa applicant.
In the statutory declaration he made on 30 March 2021, the visa applicant said he bought the review applicant various items for her previous birthday to show her how much he appreciated her and loved her. He had made a will in which he named the review applicant as a beneficiary of his estate (along with his two daughters). A copy of that will was provided to the Tribunal. At the hearing he said the parties had a good relationship, there were some issues initially which they rectified and they had plans for the future. He said they wanted to go on a holiday and purchase a property. He said they had also considered having a child.
At the hearing the review applicant’s daughter stated that the visa applicant had provided her mother with a relationship she was happy in, could trust and enjoy.
The Tribunal accepts that the parties have been in a relationship and married for over 7 years. The Tribunal also accepts that the parties lived together for just over 6 years and has found that they are currently living apart on a temporary basis. These are significant periods of time and a strong indicator of the parties’ commitment to each other. The evidence indicates that the parties have drawn companionship and emotional support from each other and have future plans which are indicative of a genuine, long term spouse relationship.
Conclusions
Having regard to the claims and evidence and the above r 1.15A(3) considerations, the Tribunal finds that both at the time of application and time of decision the parties had a mutual commitment to a shared life to the exclusion of others, their relationship was a genuine and continuing relationship, and they were living together or not apart on a permanent basis. The Tribunal is therefore satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.
Findings on criteria
As the visa applicant was the spouse of an Australian citizen at the time of application and continued to be her spouse at the time of decision, he meets cl 309.211 and cl 309.221. Therefore, 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
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
Mila Foster
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).