Lin (Migration)

[2024] AATA 767

Lin (Migration) [2024] AATA 767 (3 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Meifang Lin

Mr Kaixiang Wu

REPRESENTATIVE:  Mr Ming Zhao

CASE NUMBER:  1926562

HOME AFFAIRS REFERENCE:               BCC2018/1237328

MEMBER:Glynis Bartley

DATE:3 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 3 April 2024 at 5:55pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – relationship registered – property ownership in China – limited pooling of financial resources – limited cohabitation in Australia – joint social activities – minimal awareness of health issues – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.321; r 1.09

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this review is whether the first named applicant (the applicant), Ms Meifang Lin, is the de facto partner of her sponsor, Mr Haopeng Hong, as defined in s 5CB of the Migration Act 1958 (Cth) (the Act).

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Act.

3. The applicant applied for the visa on 15 March 2018 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

4. The delegate refused to grant the visas on 30 August 2019 on the basis that the visa applicant did not meet cl.820.211(2) of the Regulations. The delegate was not satisfied that the applicant and her sponsor were in a genuine and continuing de facto relationship.

5. On 20 September 2019, the applicants applied to the Tribunal for review of the delegate’s decision. A copy of the delegate’s decision was attached to the application.

6. The applicants appeared before the Tribunal on 28 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin language.

7. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.

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

   BACKGROUND

9. The applicant is a 50-year-old citizen of China. She has declared one previous marriage that ended in divorce. The applicant has an 18-year-old son from that relationship, who is the secondary applicant. The applicant’s parents are deceased. She has eight siblings living in China. The applicant is self-employed in a massage and traditional Chinese medicine business.

10. The sponsor is a 62-year-old Australian permanent resident. He migrated to Australia from China in 1998 after being granted a Skilled visa (Subclass 457). The sponsor has declared one previous marriage that ended in divorce. He has one adult daughter from that relationship. The sponsor’s parents are deceased, and he has no siblings. He is self-employed in a recycling business.

11. The applicant and the sponsor (the parties) stated in application that they met in December 2017 after the applicant responded to an advertisement in a newspaper placed by the sponsor. The sponsor moved in with the applicant and her son in Parramatta in January 2018 and they registered their relationship with NSW Births, Deaths and Marriages on 24 March 2018.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Prior to the hearing, the applicants’ representative submitted additional documents including but not limited to the following: medical reports regarding the parties, a bond receipt in the parties’ joint names for a commercial property at Parramatta, statements from the parties’ private health insurer, a joint lease for a property in Victoria, photographs, statements from the applicant’s superannuation fund, bank account statements in the parties’ joint and individual names, medical tests for fertility, and correspondence sent to the parties at mutual addresses.

13. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at the hearing. I have also taken into account the information received from the applicants’ representative after the hearing.

14. While the parties gave generally consistent oral evidence regarding the nature and history of their relationship, their employment and the sponsor’s recent trip to New Zealand, there were a number of discrepancies. Some of the secondary applicant’s oral evidence differed from the oral evidence given by the parties. The inconsistencies were put to the applicant in accordance with s 359AA of the Act at the hearing. In summary:

• The applicant said the parties have lived together in Parramatta since early 2018. In contrast, the sponsor said he lived at his Carlingford investment until for six months after he purchased the property in 2021 because of the government’s stamp duty requirements. Furthermore, he lived in a rented unit in Hurstville in 2022 so he could be closer to St George Hospital due to his heart problems. The secondary applicant gave oral evidence that the sponsor has been living in his Carlingford unit for the past 12 months to comply with the government’s stamp duty requirements.

• The applicant gave oral evidence that she frequently attends St Johns Anglican Church in Parramatta. The sponsor said the applicant has not been to church since around 2021.

• The applicant gave oral evidence that she owns an investment unit in China. She said the sponsor also owns a property in China. The sponsor said neither he nor the applicant own any real estate in China.

• The applicant gave oral evidence that her parents are deceased. Her eight siblings live in China. The sponsor did not know if the applicant’s parents were dead or alive. He also did not know the names of any of her eight siblings.

• The sponsor was unaware that the secondary applicant had been taken to hospital by ambulance in 2021. The applicants’ representative provided a copy of the receipt for the ambulance account prior to the hearing.

• The applicant said she cooked dinner for the family the night before the hearing and the sponsor returned home later. The applicant said that she and her son ate dinner together. In contrast, the sponsor said he ate dinner at home with the applicant and the secondary applicant. The secondary applicant gave oral evidence that he ate dinner with his mother and the sponsor; however, they all ate different meals. The secondary applicant said he ordered Uber Eats and the sponsor brought takeaway food home with him.

• The applicant gave oral evidence she and the sponsor are trying to conceive a child. She has not yet had her IUD removed and is on a waiting list for surgery. An attempt to remove the IUD without an anaesthetic was unsuccessful. In contrast, the sponsor said the applicant’s IUD was removed during surgery.

• The applicant gave oral evidence that she and the sponsor were moving to Melbourne with the secondary applicant the day after the hearing. They provided a lease for their new home at Point Cook to the Tribunal prior to the hearing. In contrast, the secondary applicant said he is moving to Melbourne, and his mother and the sponsor have not yet finalised their plans.

1. The applicants’ representative requested additional time (two weeks) to provide a written response to the matters raised in accordance with s359AA of the Act, which the Tribunal granted. On 13 March 2024, the Tribunal agreed to a further  two-day extension following a request from the applicants’ representative.

2. On 15 March 2024, the Tribunal received further documents from the applicants’ representative, including but not limited to the following: submissions by the applicants’ representative, a lease for a property at Hurstville, a hospital discharge report regarding the sponsor, dated 8 January 2023, documents from Revenue NSW regarding an ambulance bill for the secondary applicant, a letter from Ms Vanessa Smith, youth health counsellor, regarding the secondary applicant, dated 4 March 2024, an undated statement from Mr Kun Yun Lin, older brother of the applicant, a letter to the applicant from Westmead Hospital regarding elective surgery on 19 October 2023, various text messages between the applicant and Westmead Hospital, a copy of an interim Medicare card, a report by Dr Chloe Champion De Crespigny, Obstetrics and Gynaecology registrar at Westmead Hospital, dated 23 March 2023, hotel and travel receipts, boarding passes, photographs, and documents regarding the applicant’s acupuncture and massage business.

3. In the submissions received after the hearing, the applicants’ representative said the following in response to the discrepancies identified in the oral evidence at the hearing (in summary):

   ·The applicant agrees with the sponsor’s oral evidence regarding their living arrangements. She does not consider that they have ever lived apart as the sponsor has always lived at the Parramatta addresses while living at the Carlingford address or the Hurstville address sometimes during the same period. The secondary applicant’s English is poor, and he did not wish to attend the hearing due to his mental health problems. The secondary applicant was mistaken when he said the sponsor lived at the Carlingford place for 12 months in 2023.

   ·The parties last went to church together in Petersham about two years ago. The applicant went to church irregularly at Parramatta in between seeing her clients and had not told the sponsor that she had attended church.

   ·The parties agreed that their individual property in China would not become their joint assets. Therefore, they had not discussed their property ownership in China. The applicant assumed an old photograph showed the sponsor standing in front of his property in China. However, the property belongs to the sponsor’s relative. The applicant told the sponsor about her property in China, but he had forgotten all about it due to his old age, physical illness and busy work life.

   ·The applicant’s mother died five years before the parties met. Her father died in 2019 and her siblings did not want the sponsor to attend the funeral because they thought he was old and in poor health. The applicant’s siblings did not want her to have a relationship with the sponsor. The applicant discussed this with the sponsor, but he forgot. The applicant rarely speaks with her siblings in China. The sponsor has only spoken with one brother, Mr Kun Yun Lin. There is little connection between the applicant and her siblings. Therefore, the sponsor does not know any of their names and had forgotten that he had spoken to one of her brothers by phone.  

   ·The secondary applicant was taken to Westmead Children’s Hospital on 26 February 2021 due to a mental health episode and was discharged the same day. The applicant did not tell the sponsor about the incident because she was worried that it would be detrimental to the sponsor’s heart condition. 

   ·The applicant was due to have surgery for removal of her IUD on 19 October 2023. Prior to the surgery, she realised that her Medicare card had expired, and she did not wish to incur out of pocket expenses. The applicant did not tell the sponsor that she had postponed the surgery as she did not want to upset him because they both wanted to have their own child as soon as possible. Therefore, the sponsor mistakenly thought the applicant’s IUD had been removed. The applicant is in the process of arranging a new date for the surgery.

   ·On the night before the hearing, the applicants had dinner together at around 7 pm. The sponsor returned home at about 9 pm and brought takeaway food with him. The secondary applicant had a cheeseburger and the takeaway food. The sponsor ate some of the leftovers from the applicants’ dinner. The whole family then ate some fresh food that the applicant had just cooked. The sponsor then returned to the factory and ate burgers with his workers at 11 pm as previously arranged.

   ·The applicant flew to Melbourne in December 2023 to find suitable accommodation for a planned relocation for the family. They signed a lease, and the parties took some of their belongings in Melbourne in February 2024. The parties did not communicate their business plans to the secondary applicant. He was therefore not sure if the parties were intending to move to Melbourne.

4. The applicants’ representative submitted that the applicant has provided an abundant body of evidence to demonstrate that she is in a genuine relationship with the sponsor, including their desire to have their own child by going through the medical tests and procedures in order for the applicant to fall pregnant. They have presented themselves as a couple to family and friends on numerous occasions throughout the years. They have made a long-term commitment to each other and pooled their financial resources, including joint names on both their residential and commercial properties. The parties have demonstrated substantial knowledge about each other’s work and businesses.

5. I carefully considered the response and supporting documents received after the hearing from the applicants’ representative but was not satisfied that the material adequately explained the discrepancies. I have placed weight on that evidence.

6. In general, I did not consider the applicants or the sponsor to be credible witnesses. Their evidence was inconsistent with each other, and the documents submitted. The parties were intermittently vague and guarded, for example when asked about their respective incomes. Some of the parties’ oral evidence was implausible, for example their claim that they are planning to have a child together despite the medical report submitted which confirms that they have a negligible chance of conceiving due to the applicant’s age. I have placed little weight the oral evidence at the hearing unless corroborated by a more reliable source.

   Whether the parties are in a spouse or de facto relationship

7. 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 de facto partner of the sponsor who is an Australian permanent resident.

   Are the parties in a de facto relationship?

8. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

9. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Financial aspects of the relationship

10. The parties do not own any joint assets or debts. They have a joint bank account with the National Australia Bank (NAB), as well as individual bank accounts with NAB and the Commonwealth Bank. The sponsor also has a mortgage with Westpac Bank for an investment property at Carlingford. The bank statements provided show rent being deducted and other usual expenditure from the joint account, including for groceries and fast food. There are numerous transactions evident at the secondary applicant’s high school. The applicant confirmed during the hearing that her son had access to the parties’ joint account to purchase food. The applicant gave oral evidence that the sponsor rarely uses the joint account because he prefers to use cash. The sponsor did not bring his joint account ATM card with him at the hearing. I was not convinced that the sponsor uses the joint account as frequently as the parties claimed, if at all. The joint account statements show the parties do not have any savings together.

11. The sponsor’s bank statements show numerous transactions in the Hurstville area, consistent with him living in that area. The sponsor confirmed that he lived in Hurstville for a period so he could be closer to St George Hospital. He said he now uses the Hurstville apartment as his office. As it no longer has beds, he cannot sleep there. The office is on the 15^th floor of the building and has a couch.

12. The applicants’ representative provided copies of various leases and rental bond board receipts prior to and following the hearing. The sponsor’s name was added in handwriting to some of the applicant’s business leases and he was not a signatory. I accepted that the parties have jointly signed residential leases and the most recent lease for the applicant’s business. I placed limited weight on the lease signed for the residential property in Victoria given there was contradictory evidence regarding whether the parties plan to move there, as they claimed. Nonetheless, the joint leases signed by the parties confirm that they owe legal obligations to one another. They have also lodged bond payments in joint names with NSW Fair Trading.

13. The parties demonstrated a reasonable knowledge of each other’s employment and financial circumstances at the hearing. However, the applicant had limited knowledge about the sponsor’s mortgage repayments. Those repayments are evident from the bank statements provided prior to the hearing. The applicant also appeared unaware of many of the regular transactions shown in the sponsor’s bank statements, for example a hotel he regularly frequents in Hurstville. The sponsor was unaware that the applicant owns an investment unit in China. Furthermore, the applicant incorrectly understood that the sponsor owned an investment property in China. The response received after the hearing regarding the parties’ ownership of real estate in China did not adequately explain that discrepancy. I would have expected the parties to have discussed their financial circumstances, including their assets, given the claimed length of their relationship.

14. I accepted that the applicant has nominated the sponsor as one of the beneficiaries of her superannuation. Given the balance is limited and this nomination can be easily changed, I placed limited weight on that evidence. The parties provided copies of utility bills in the sponsor’s name and a joint HCF health insurance policy. I put some weight on that evidence.

15. After having regard to all of the evidence before me, including the joint leases, bank statements and the discrepancies in the oral evidence at the hearing, I was not persuaded that the parties have pooled their financial resources as they claimed, or that they share day-to-day household expenses.

16. The financial aspects of the parties’ relationship are not consistent with them being in a genuine and continuing de facto relationship.

    Nature of the household

17. The applicant claimed at the hearing that the parties have lived together at two different addresses in Parramatta since they formed a relationship in January 2018. In contrast, the sponsor said he has lived for some periods at Carlingford and Hurstville since the relationship began. The secondary applicant gave oral evidence that the sponsor has lived in Carlingford for the past year. The parties have signed joint leases and paid rental bonds together. They have used the same address for their health insurance, banks and various government agencies. Nonetheless, the sponsor’s bank statements show that he used the Hurstville and Carlingford addresses with both NAB and Westpac Banks during some of the periods that the parties claim that they lived together in Parramatta. The explanation received after the hearing from the applicants’ representative that the sponsor was living in Parramatta at the same time that he was living in Hurstville and later Carlingford was unconvincing.

1. Given the discrepancies in the oral evidence, including about whether the parties and the secondary applicant ate dinner together the night before the hearing, I was not persuaded that the parties are currently living together.  

2. The parties do not have any joint responsibility for the care and support of children. I accepted that the sponsor has formed a positive relationship with the applicant’s son. The parties gave consistent oral evidence that they share household chores. I was not persuaded that the parties’ evidence about their contribution to the housework was sincere given the inconsistencies regarding their living arrangements. I was satisfied that the sponsor has lived at addresses at Hurstville and Carlingford since January 2018 when the parties claimed to have moved in together.

3. The nature of the household aspect of the parties’ relationship is not consistent with them being in a genuine and continuing de facto relationship.

   Social aspects of the relationship

4. Photographs provided show the parties together with the secondary applicant and various friends at a range of social occasions, including at restaurants, birthday parties, tourist attractions and grocery shopping. The photographs indicate that the parties went to restaurants with groups of friends when they travelled to Melbourne earlier this year.

5. The applicants’ representative provided a hotel receipt at the hearing, which shows the parties stayed together at a hotel in Glen Waverley, Melbourne, for two nights from 22 to 24 February 2024. I accepted that the parties travelled to Melbourne during the week before the hearing and stayed in a hotel together.

6. The parties gave consistent oral evidence at the hearing that have not travelled overseas together. They went on a holiday to Melbourne in March 2019, and photographs were provided of that trip.

7. The parties provided statements and statutory declarations from the applicant’s brother and some of their friends, including Ms Zhuqing Lan. Ms Lan provided an undated statement and said she believes the parties’ relationship is genuine, stable and long lasting. Mr Paul Lee also provided a statutory declaration, dated 14 May 2018, and a statement, dated 13 August 2019. Mr Lee said he has known the sponsor for around 20 years, and they see each other on a regular basis. Mr Lee said the parties’ relationship is genuine and continuing. Furthermore, the sponsor is a caring fatherly figure to the secondary applicant. Mr Jiashu Fang provided a statutory declaration to support the application, dated 13 March 2018. Mr Fang said he has known the applicant for five years and first met the sponsor two weeks prior at church. Mr Fang said the parties looked like a lovely couple and they said they would attend church regularly. Mr Fang said he believes the parties’ relationship is genuine and continuing. The applicant’s brother, Mr Kun Yun Lin, provided an undated statement at the time of application and said he was aware of the parties’ relationship and had spoken with the sponsor by phone. As noted above, the sponsor did not recall ever speaking with Mr Kun Yun Lin.

8. I accepted that the parties hold themselves out to some of their friends and family as being in a genuine and continuing relationship. The applicant has told her doctor that she and the sponsor wish to conceive a child.

9. The parties gave inconsistent oral evidence regarding whether or not the applicant attends church. The response received after the hearing that the applicant goes to church in Parramatta in between seeing clients at her massage business and has not mentioned this to the sponsor was unconvincing. There is no reason for the applicant to conceal her attendance at church from the sponsor, particularly given their claim that they previously attended a different church together.

10. I was satisfied that there is some social recognition of the relationship and that the parties plan and undertake joint social activities. There is limited evidence to indicate that the parties represent themselves as a de facto couple to their extended families or the broader community.

    Nature of the persons’ commitment to each other

11. The parties claim that they have been in a committed de facto relationship for more than six years since January 2018.

12. After considering all of the evidence before me, including the discrepancies in the oral evidence at the hearing, I was not persuaded that the parties are living together at the time of this decision. I would have expected the sponsor to be aware that the applicant’s parents were both deceased given the significance of that information. The applicant’s father died in 2019, which was after the parties claimed to have moved in together. Furthermore, the sponsor did not know the names of any of the applicant’s eight siblings and has never met them, despite the uncontested evidence that the sponsor has returned to China on a number of occasions for business trips. The applicant gave oral evidence that she is not particularly close to her family, although she gets along well with one brother. I would have expected the applicant to have discussed her family with the sponsor and that he would have been familiar with some of her siblings’ names, particularly given the claim by the applicant’s brother, Mr Kun Yun Lin, that he has spoken with the sponsor by phone.

13. The applicant was aware that the sponsor travelled to New Zealand on a work-related trip for his business in late 2023, that the sponsor lost his driver’s licence because he was using his mobile phone, and of the sponsor’s various health problems, including his heart condition. However, the applicant’s oral evidence regarding the sponsor’s decision to live near St George Hospital for a period to ensure he could receive urgent medical care was vague and contradictory. 

14. The sponsor was unaware that the secondary applicant was taken to hospital by ambulance in 2021 due to a mental health condition. The applicant said she did not tell the sponsor about the incident, other to say her son was suffering from depression. In the response received after the hearing, the applicants’ representative submitted that the applicant concealed her son’s hospitalisation from the sponsor because it may have been detrimental to the sponsor’s heart condition. I did not find that explanation to be credible. Given the significance of the event, I would have expected the parties to have discussed it. The applicant’s decision not to tell the sponsor that her son was taken to hospital by ambulance indicates that they do not share important information about personal matters or provide one another with emotional support at times of crises. Although there is medical evidence to support that the sponsor has a heart condition, none of the reports submitted suggest that he needs to be shielded from all stress.

15. The applicants’ representative provided medical reports prior to the hearing to confirm that the parties underwent testing to assess their fertility as they are keen to conceive a child. There was inconsistent oral evidence regarding whether or not the applicant has had surgery under anaesthetic to have her IUD removed. The response received after the hearing confirmed the applicant’s oral evidence at the hearing that she had concealed her decision to postpone the surgery to remove her IUD. She claimed this was because it may have upset the sponsor and been detrimental to his health. I consider it significant that the applicant did not advise the sponsor that her IUD has not yet been removed given their stated intention to conceive a child. The applicant has discussed her fertility with a doctor and sought medical advice. A referral letter from Dr Rong (Karen) Wang, general practitioner, dated 11 October 2021, said the parties are keen to conceive a child. A later report by Dr Chloe De Crespigny, obstetrics and gynaecology registrar at Westmead Hospital, dated 23 March 2023, said the applicant is perimenopausal, with irregular periods. The applicant was advised by Dr De Crespigny that she has little chance of conceiving, even with IVF, and there is an increased risk of chromosomal abnormality. I was not persuaded that the parties’ evidence regarding their intention to have a child together was sincere given their respective ages (50 and 62 years), and the sponsor’s diagnosed health conditions.

16. The parties’ oral evidence regarding their plans for the future was inconsistent with the secondary applicant’s oral evidence. The parties claimed that they planned to move to Melbourne the day after the hearing with the secondary applicant. They provided a lease to support their claim, signed by both applicants and the sponsor. In contrast, the secondary applicant said he was planning to move to Melbourne alone as he wanted to become more independent. He said the parties had not yet decided whether or not to move. The response received after the hearing does not adequately explain the discrepancy. I do not accept that the secondary applicant’s English is poor or that he misunderstood either the question or the parties’ discussions about their plans. The secondary applicant participated fully in the hearing and spoke in English. He was encouraged to use the interpreter whenever required. This discrepancy in the oral evidence indicates that the parties have not made coherent or sincere plans for their future life together.

17. The parties were unaware of significant aspects of each other’s lives during the hearing. For example, the sponsor did not know that the applicant’s father had died in 2019, despite his death occurring the year after the parties’ claimed to have formed a relationship and moved in together. There is no medical or other independent evidence to corroborate that the sponsor has problems with his memory. The parties gave consistent oral evidence that the sponsor is operating a successful recycling business, employs a number of staff, and frequently travels overseas to facilitate expansion.

18. The sponsor has a 30-year-old daughter who lives on the North Shore of Sydney. Information about the sponsor’s daughter was included in the application. Although I accepted that the sponsor does not have any contact with his, the applicant did not know her name. This is basic information that I would have expected the applicant to be aware of given the claimed length of the parties’ relationship.

19. Overall, I find that the parties have not displayed the degree of emotional support and companionship which would be expected in a genuine and continuing relationship. The applicant has concealed important personal information from the sponsor, including about her and her son’s health. I was not persuaded that the parties provide one another with companionship or emotional support or see the relationship as long-term. I was not satisfied that the applicant and her sponsor are genuinely committed to each other.

    Conclusions

20. After having regard to the above, I was not satisfied that at the time the visa application was lodged and at the time of this decision the parties have a mutual commitment to a shared life to the exclusion of all others. I was not satisfied that the relationship between the applicant and the sponsor is genuine and continuing. I was not satisfied that the parties live together as claimed, or do not live separately and apart on a permanent basis. I therefore find that the applicant does not meet the requirements of s 5CB at the time the visa application was made and at the time of this decision.

21. Therefore, the applicant does not meet cl 820.211(2)(a) and cl.820.221. There is no evidence that the applicant meets any of the alternative subclauses.

22. For the secondary applicant to be entitled to a visa under cl.820.321, he must be a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in subdivision 820.21. As the Tribunal has found that the applicant does not meet cl.820.211, the secondary applicant does not meet the requirements of cl.820.321 of Schedule 2 to the Regulations. No claims have been made by the secondary applicant against the primary criteria.

23. For the reasons above, the applicants do not satisfy the criteria for the grant of the visa.

    DECISION

24. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

    Glynis Bartley
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).