Mazboudi (Migration)

Mazboudi (Migration) [2018] AATA 1679 (24 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr MOHAMAD KHALED MAZBOUDI
CASE NUMBER:  1621189
DIBP REFERENCE(S):  BCC2015/562161
MEMBER:Jennifer Cripps Watts
DATE:24 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 24 April 2018 at 4:40pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether the parties are in a genuine de facto relationship – Lack of joint finances – Limited weight placed on joint household responsibilities – Limited evidence of relationship being held out to others as a genuine de facto relationship – Limited evidence of commitment – Decision affirmed
LEGISLATION
Births Deaths and Marriages Registration Act 1995 (NSW)
Migration Act 1958 (Cth), ss 5CB, 65, 359AA, 375A
Migration Regulations 1994 (Cth), r 1.09A, Schedule 2, cls 820.211, 820.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 24 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 20 February 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant was the de facto partner of the sponsor meeting s.5CB of the Act when regard was had to matters in r.1.09A of the Regulations.
The applicant appeared before the Tribunal on 9 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Marcella Guilfoyle.
The applicant was represented in relation to the review by his registered migration agent, Mr Houssam Hayba, Migration Agent Registration Number 0001536. The Tribunal and applicant were assisted by a NAATI Level 3 interpreter in the English and Arabic languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant and sponsor are in a de facto relationship satisfying s.5CB of the Act when regard is had to matters in r.1.09A of the Regulations against the relevant evidence on the Department and Tribunal files and the oral evidence given at the hearing.
Whether the parties are in a spouse or de facto relationship
Clause 820.211(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 citizen. There is a Certificate of Australian Citizenship on the Department file that indicates Marcella Faith Arnold Guilfoyle, born 4 November 1992, acquired Australian citizenship on 26 November 1992.
The applicant makes no claim to be married to the sponsor at the time of this decision.
Are the parties in a de facto relationship?
As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. 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).
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old. There is evidence before the Tribunal that reliably indicates that both applicant and sponsor were over 18 years of age at the time of application.
The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: r.2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009). The parties registered their relationship in New South Wales, under the Births Deaths and Marriages Registration Act 1995, on 25 January 2015. They had not claimed to have been in a de facto relationship for more than 12 months at the time of application. However, given that the relationship was registered, the applicant is not required to meet r.2.03A(3).
For this reason the Tribunal is satisfied satisfied that the applicant meets the additional criteria prescribed in r.2.03A.
Nonetheless, in forming an opinion whether the applicant and sponsor are in a de facto relationship satisfying s.5CB of the Act, 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 r.1.09A(3) which is attached to this decision.
The applicant provided documents to the Department and Tribunal, before the hearing. The hearing was on 9 November 2017. Post-hearing, on 7 February 2018 the applicant provided additional documents. Again, on 28 March 2018, the applicant provided additional documents. The Tribunal has considered the information provided post-hearing in making its decision.
Background
The applicant is a 29 year old citizen of Lebanon. He first arrived in Australia on 2 January 2013 holding a student visa. The sponsor is an Australian citizen. The parties claim to have met when they were working together at Bar 100 in The Rocks, in 2014. The applicant states, in his written visa application, that they started a de facto relationship on 15 September 2014 and that they moved in together in November 2014 to a flat the sponsor was renting in Redfern. In March 2015, the parties moved to Coogee, where they continue to live. Neither party has declared any previous marriages or de facto relationships or that they have any dependants.
The applicant told the Tribunal that his parents and two brothers, one of whom is married with a family, all live in Beirut, Lebanon.
The applicant has provided a large amount of documentary information to the Department and the Tribunal seeking to address various aspects of the relationship. The Tribunal has considered the documents individually and cumulatively and has also weighed the information against the oral evidence given at the hearing.
The applicant was residing in Australia on a student visa that commenced on 19 December 2012 and expired on 15 March 2015. The Tribunal has significant concerns about the timeline of these events and rapid inception of the claimed genuine de facto relationship in August/September 2014., the registration of the relationship in New South Wales about four months later (25 January 2015), the lodging of the partner visa application one month after registering the relationship (20 February 2015), the parties entering into a joint residential tenancy agreement (on 6 March 2015), the expiry of the applicant’s student visa (15 March 2015) and the parties’ Islamic marriage ceremony (11 April 2015).
The view the Tribunal has formed is that the relationship has been contrived for the primary purposes of the applicant maintaining residence in Australia and pursuing permanent residency. That is not to say that the applicant has not provided some information and evidence that suggests there are some indicators of a de facto relationship.
However, the Tribunal has considered all relevant facts and matters, individually and cumulatively, and whilst it appears that the parties do share some finances or financial responsibilities, live in the same household and socialise together and with others from time to time, the Tribunal is not satisfied that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of all other and the relationship is genuine and continuing.
The parties must meet the criteria for the grant of the visa at the time of application and, if they do meet the criteria, continue to meet it at the time of this Tribunal’s decision. The Tribunal is not satisfied that the parties met the criteria for the grant of the visa at the time of application.
The Tribunal, when considering the information and documents provided by the applicant, has had regard to matters in r.1.09A(3) of the Regulations.
Financial Aspects of the Relationship
The Tribunal has had regard to the extent to which the parties pool their resources, their joint assets and liabilities, any legal obligations and the nature of their day-to-day household expenses.
The parties provided copies of financial documents including credit card and bank statements in their joint and individual names, a lease and bond lodgment receipt for the property in Coogee.
The parties gave fairly consistent information about each other’s salaries, but gave less accurate information about the status of personal loans they have. They gave largely consistent evidence about the applicant buying a car using money from the joint account. However, on balance, the Tribunal is not satisfied that they openly disclose with each other or jointly take responsibility for the financial liabilities they both have in a manner that indicates to the Tribunal that they are a de facto couple in a genuine long term relationship. The applicant told the Tribunal that both he and the sponsor have loans and that his loan is about $50,000 (with St George and the Commonwealth Bank). The sponsor said she was not sure because she does not ask him about his debts because she thinks he manages his money quite well. The view the Tribunal formed is that the applicant simply does not disclose the significant level of his debt to the sponsor, which it is reasonable to think he might, if the Tribunal is to believe they jointly share assets and liabilities. The applicant gave oral evidence that she is not good with money, but the Tribunal does not consider this to be an explanation that addresses the concerns about their lack of apparent joint financial commitment.
The applicant gave evidence that he opened a business and went into debt to finance it. The business failed and he still has debts. The parties gave consistent evidence about the applicant’s business venture, but the sponsor did not seem to know much detail as to the nature of the sponsor’s residual debt, or the extent of it.
The Tribunal examined the bank records provided by the applicant. Both parties were taken to various transactions on the Commonwealth bank account in joint names, including from:
a.Lenka Oravcova, who the parties both said is a good friend of the applicant and sometimes helps him out.
b.Jacopo Mastrocin and Elena Zaccheo, who neither was sure about.
c.Natalie Bjork, Sara Fernandez and Emanuele Caprist, who both parties identified as former co-workers.
d.Barbara Skokank and Sofia Murueta, who the applicant said are friends of his but he does not think the sponsor knows them.
The applicant said that some of the entries on the parties’ joint account may have been for people running bar tabs, that is, that he would give them credit at the bar and they would reimburse to the parties’ joint bank account. The applicant was suggesting a possibility as opposed to stating he was sure this was what the transactions were for. The Tribunal does not consider this to be a plausible suggestion, that in the course of running a bar the applicant would advance people money or allow them to buy drinks on credit and then have the money paid back not to the business but to the joint account the applicant has with the sponsor. The sponsor herself said at the hearing she does not examine the joint account, she and the sponsor both put money into it and as long as there is money in there she does not really pay attention because she is really bad with money. Even if the applicant did put money from the bar into the parties’ joint account, it is again of concern that the sponsor is seemingly unaware of the funds being there or that the applicant is depositing money into their joint account from the business.
Whilst the parties gave some consistent evidence about the names of people whose deposits are in their joint bank account, their responses were overall quite vague and did not satisfy the Tribunal that they use the account in a manner commensurate with that of a two people in a genuine de facto relationship. Although it is accepted that the sponsor does sometimes use the account.
There was a transaction on the Commbank joint statement to Etihad Air for $1,680.61. The applicant was asked about it and seemed to genuinely not know what it was. The sponsor was asked about the debit and was non-responsive to the question. After the hearing, the representative emailed the Tribunal, on 13 November 2017, and said that the parties realised (after the hearing) that this expense was for an air ticket for the sponsor’s uncle, Brendan Guilfoyle, to fly to Sydney from Ireland. Copies of the tickets were provided. The Tribunal accepts that this is what the money was for, but considers that at the hearing the applicant did not know and reflecting on the sponsor’s manner when questioned she hadn’t told him. The Tribunal does not accept that during the hearing the sponsor did not know what the transaction was and formed a view that she did not want to say what it was in front of the applicant. This affects her credibility.
Nature of the Household
The Tribunal has had regard to any joint responsibility for care and support of children and the parties’ household and living arrangements.
The parties told the Tribunal that they both do grocery shopping. They gave consistent answers about what they had for dinner the night before the hearing, together, at the household they share, and of the outings they had in the week leading up to the hearing, including that they attended birthdays, a house party, went to the Coogee Pavillion, spent Saturday with family and then Sunday at Middle Bar, opposite Arc on Oxford Street.
The applicant provided the Tribunal with additional documents after the hearing, on 7 February 2018 including a copy of a document that indicates the parties have been offered, in January 2018, a 12 month extension to their lease on the Coogee apartment in their joint names. The parties had provided previously copies of lease agreements that indicate they have shared a household during the period of the claimed relationship. These documents have been considered.
The Tribunal accepts that the parties live together in the same household and share some expenses and household chores and that, as they are jointly named in the lease, they both have responsibility for the property under the terms of the lease.
However, notwithstanding the parties’ sharing of the household and the residential leases in their joint names, on the basis of other concerns the Tribunal has about the genuineness of the claimed de facto relationship, it is not persuaded that the parties share the household as a genuine de facto couple.
Social Aspects of the Relationship
The Tribunal has had regard to whether whether the parties represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.
The parties claim to have been a de facto couple for nearly three years at the time of this decision. The sponsor provided some information about the applicant’s family at the hearing indicating she knows who they are, where they live and some details of their lives in Beirut. However, the Tribunal is not persuaded, on the evidence, that the sponsor’s family in Beirut is, as he claims, are supportive of the relationship and the parties’ claim that they intend to marry each other under Australian law.
The applicant provided photographs of jewellery that the parties said had been sent to the sponsor by the applicant’s mother after they had their Islamic ceremony in 2015.
The Tribunal was provided with copies of photographs in addition to the photographs that had previously been provided to the Department, of the parties together and with others. There were some additional copies of photographs of the parties together and in limited social settings. It is not clear when they were taken and for this reason they are given limited weight. There is a copy of an invitation to a wedding at Waverley on 16 September 2017 addressed to the parties jointly.
The applicant provided photographs and statements that show the parties together and with others, socialising and on short breaks together in places including the Hunter Valley, Melbourne and Thredbo. Whilst they indicate that the parties have some friends in Australia that they socialise with, the photographs are not given weight that the relationship is declared as a genuine de facto relationship to the sponsor’s friends and family in Lebanon.
There are copies of statements and form 888 statutory declarations on the files, including from the following people:
a.Gigi Rahma, sworn 11 February 2015, university friend of the sponsor who later lived with the parties in the same household. She believes the relationship to be genuine because they seem happy together – at the time she had known the sponsor for about two and a half years and the about applicant for six months. She does not provide any details of the twice weekly meetings they have. Her statement is given limited weight for this reason.
b.Sally Arnold, the sponsor’s mother, sworn on 1 September 2017. She believes the relationship is genuine and continuing and says that the applicant is “loving and supportive” of her daughter.
c.Omar Mazboudi, the applicant’s brother who lives in Lebanon, sworn 1 November 2017. He claims to have known the sponsor for three years but there is no evidence before the Tribunal that he has met her in person or that this declarant has socialised with the parties together. He says he believes the relationship is genuine. However, the Tribunal gives his statement limited weight and only to say that he is aware that the parties have lived in the same household together for about three years.
d.Aida Wehbe, the applicant’s mother, sworn 1 November 2017. The statement is in English and the Tribunal does not consider it to be reliable evidence that it was written by the applicant’s mother. She says she speaks to them both over the phone and using apps Whatsapp and Viber. There was no claim or evidence before the Tribunal that the sponsor speaks Arabic or that the mother of the applicant speaks English. The applicant said his mother tells the sponsor she loves her, but there was no reliable evidence provided that she does or that she considers the parties to already be religiously married. It is not indicated whether the applicant’s mother wrote the statement herself in English, whether it was translated or not and it is given limited weight as the Tribunal is not satisfied that it can be reliably said that the applicant’s mother wrote the statement.
e.Kaisha Karunakaran, a work colleague, sworn 01 February 2017, has known both parties for six months, who has worked and socialised with the parties together. She says that the applicant has told her he has taken days off work to look after the sponsor when she is ill. Her statement is given weight to say that she considers the parties to be in a relationship with each other, but not to support the claim that it is a genuine de facto relationship. She says that when the sponsor lost belongings the applicant lodged an insurance claim.
f.Wissam El Mazboudi, father of the applicant, sworn 1 November 2017, who says the sponsor is like a daughter to him. He sees her over the phone when he is talking to the applicant. He has not met her in person or been in the company of the parties together. The Tribunal gives his statement limited weight. He has not the sponsor in person. He says that he is aware that the applicant and sponsor intend to buy a house when they have enough funds. The Form 888 is signed but not declared in front of a qualified person. It is not indicated whether the applicant’s father wrote the applicant himself in English, whether it was translated or not and it is given limited weight as the Tribunal is not satisfied that it can be reliably said that the applicant’s father wrote the statement.
g.Ziad Mazboudi, brother of the applicant, dated 1 November 2017. The statement is not sworn and he has not met the sponsor in person. His statement is not considered to be reliable to support the claim that the parties are in a long term de facto relationship or a relationship that he considers to be a marriage under Islamic law. It is not indicated whether the applicant’s brother wrote the applicant himself in English, whether it was translated or not and it is given limited weight as the Tribunal is not satisfied that it can be reliably said that the applicant’s brother wrote the statement.

The Tribunal has concerns about an aspect of the statement of Ms Karunakaran saying that the applicant lodged an insurance claim on behalf of the sponsor. The sponsor herself knew little about an insurance claim, in her oral evidence at the hearing, and the applicant said at the end of the hearing that he had not told the sponsor about a break and enter at the household they both live in, nor did he tell her about the insurance claim for a new laptop and new phone. The applicant said, referring to earlier oral evidence of the sponsor that there had been no break and enter at the house and that she had seen an Apple Mac box around the house, that it is just the box and that he changed to the same phone and didn’t need to tell her. The Tribunal cannot reconcile why the applicant would disclose this information to a work colleague but not the woman he claims is his genuine de facto partner and who lives in the same household.
The Tribunal notes that none of the applicant’s family in Lebanon who have provided statements (with the exception of one brother) refers to the Islamic marriage the parties have undertaken or to the wedding (legal marriage) the parties say they are planning in the future - the sponsor said in early 2019. It is reasonable to think, as the applicant himself claims that he and his family consider he is married, that his mother, father and other brother may have referred to the Islamic marriage if they were aware of it. The Tribunal formed a view, and it thinks reasonably, that it may be that they are unaware that the parties have had a religious ceremony and say that they consider themselves to already be married in the Islamic faith. They mostly refer to the parties living together, which is quite different from saying they are married.
The parties said that they had intended to have an engagement “last June” but could not afford it. The parties said that they plan to travel overseas this year, and then get married in 2019. It is unlikely, in the view of the Tribunal, that if the parties could not afford a small engagement in June that there is a real likelihood that they genuinely intend to get married in early 2019, after taking an overseas holiday to Ireland, England and Europe for six to eight weeks, while at the same time claim to be intending to save money to purchase a house together. In reaching this view, the Tribunal has also considered the parties’ substantial personal debts about which they have both provided evidence. The applicant was asked, as he had requested and been granted a fee reduction at the Tribunal which seemed to indicate financial hardship, how he would afford the overseas trips. He said, essentially, that he and the sponsor struggle financially because his business didn’t do well and the sponsor wants to stay living in the Eastern suburbs. The Tribunal is not satisfied that, as he claims, the applicant genuinely intends to take an expensive overseas trip with the applicant, visit his family with her in Lebanon and then get married (legally, under Australian law) within the next 12 to 18 months.
The Tribunal is not suggesting that it has been considered that it is a requirement the parties marry each other. However, they have both claimed that this is their intention and regard has been had to the claim and any relevant evidence in support of the claim. The Tribunal’s view is that the intention is not genuinely held.
The applicant said Muslim people consider them to be married already but that others consider them to be boyfriend and girlfriend. The Tribunal does not have before it any reliable or sworn evidence to the effect that Muslim people known to the parties consider them to be married. Nor is the Tribunal persuaded that the applicant’s mother, father and two brothers in Lebanon are aware of the Islamic marriage that took place in April 2015, as none of them made reference to the ceremony or the parties being, in their view, married to each other.
The Tribunal accepts that the parties socialise together in Sydney and take occasional trips away, with friends and family. However, the Tribunal is not satisfied that, overall, their friends and family consider the parties to be in a genuine de facto relationship. The relationship has, in the view of the Tribunal, more a complexion of a “girlfriend/boyfriend” arrangement, not one of a couple genuinely intending a long term future together, and considers that this is how most of their friends a family see the relationship. Notwithstanding that some of the statements include information that indicates people are aware of future plans the parties have, this does not convince the Tribunal, in the context of other concerns that are discussed in this decision, that the parties do mutually intend that the relationship will be long term.
Nature of the Parties’ Commitment to Each Other
The Tribunal has had regard to all relevant facts and matters including duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.
The applicant held a student visa until March 2015. Shortly before this visa ended, he applied for the partner visa that is the subject of this review by the Tribunal. The applicant gave oral evidence at the hearing that he was studying a Masters of Management, and then changed to a Masters of Accounting, which he says he finished but he did not complete the CPA accreditation afterwards.
There is a typed statement on the Tribunal file, purportedly written by the applicant, but not signed or dated, (although it is noted that it was attached to the representative’s email dated 26 December 2017, so probably written around that time). In the statement, the applicant refers to the financial, social, household and commitment aspects of the relationship: r.1.09(3) of the Regulations. He noted that he and the sponsor have “complicated financials” “which the member shed the light on deeply during the interview and she noticed that it is a confusing matter.” The Tribunal does not recall using those words, but will accept on face value that the parties do seem, on the evidence, to have somewhat complicated financial arrangements:
a.Early in the relationship the parties were on good fixed salaries, things were easy and life was without any financial problems.
b.The applicant took out a loan with St George Bank to open Push Bar, the business did not go well and was closed.
c.They both worked to try to get back on top of things financially, but the applicant was sick and depressed and this did not help.
d.They are now doing better financially because the sponsor has a job where she earns substantial tips and they pool this resource.
The applicant provided a document that indicates he and the sponsor were married in an Islamic ceremony on 11 April 2015. He said at the hearing that the ceremony took place at a friend’s house, it was “quite quick”, and that afterwards they went out to dinner with their housemate. The ceremony was conducted about two months after the visa application was lodged and before the Department made its decision. The view the Tribunal formed is that the Islamic ceremony conducted on 11 April 2015, the somewhat perfunctory nature of it and the lack of declaring or celebrating the Islamic marriage in any significant way with either the applicant’s or sponsor’s family and friends, was for the primary purpose of supporting the visa application. The document and oral evidence relating to the Islamic marriage ceremony is given limited weight to support the claim that the parties consider themselves to be married in the Islamic faith and committed to a genuine and long term future together in the manner of a husband and wife.
The parties gave some consistent evidence but overall they do not, in the view of the Tribunal, have discussions about and disclose to each other things that it would be reasonable to think a genuine couple who has been together for more than three years would. For example, that there was an insurance claim for a break and enter resulting in the applicant’s mobile phone being stolen and needing to be replaced, the sponsor making an airline booking for a cousin to fly to Australia from Dublin out of the parties’ joint bank account at fairly significant expense in mid-2017 only a few months after the applicant was claiming he needed a fee reduction for his Tribunal hearing (December 2016).
Section 359AA and a s.375A certificate on the Department file
At the hearing the applicant and his representative were shown a s.375A certificate that is on the Department file which states that there is information on the Department file that would be contrary to the public interest. The Tribunal considers the certificate to be a valid certificate.
The applicant was asked if he wished to make any comment on the s.375A certificate. He said that he thought he knew what it was about and mentioned working for Westpac. The Tribunal stopped him and said that there was no mention in the information referred to in the certificate about Westpac, although it is noted that earlier at the hearing the applicant had said he worked there from August to April 2017. He was told that the Tribunal would not be giving any negative weight to the information that was the subject of the certificate in reaching its decision. The applicant was then told it was not necessary for him to continue to comment on what he thought the certificate was about if he did not want to. He elected to say nothing more and no negative weight was placed on this either. The Tribunal refers to the folios identified, 135-137, and, in the circumstances, did not disclose the information and has not given the information any weight in reaching its decision as it is not considered relevant in making a decision in his partner visa matter as it is not considered to be relevant information.
The Tribunal, having considered all relevant facts and matters, is not satisfied that the applicant meets s.5CB(2)(a)-(c) of the Act when regard has been made to r.1.09A(3) matters.
Accordingly, the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time the visa application was made or the time of this decision.
Therefore the applicant does not meet cl.820.211(a) or cl.820.221.
There is no claim by the applicant that he meets any of the alternative cl.820.211 criteria.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Jennifer Cripps Watts
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).

[2018] AATA 1679

24 April 2018

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