McGrath (Migration) - [2022] AATA 3407

McGrath (Migration) [2022] AATA 3407 (26 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Sylvia McGrath
VISA APPLICANT:  Mr Ajay Kumar Ajay Kumar
REPRESENTATIVE:  Ms Sukhraj Deol (MARN: 0316325)
CASE NUMBER:  1825616
DIBP REFERENCE(S):  BCC2016/1413411
MEMBER:T. Quinn
DATE:26 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa or a Partner (Migrant) (Class BC) visa.

Statement made on 26 August 2022 at 12:59pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Federal Circuit Court remittal – genuine and continuing spousal relationship – limited awareness of each other’s income and employment – inconsistent evidence of the household – periods of unlawful residence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 338, 347, 359
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15
CASES
“T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
He v MIBP [2017] FCAFC 206
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5
Ndegwa v MIMIA [2005] FMCA 74
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347
Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
Singh v Minister for Home Affairs [2020] FCAFC 7
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
application for review

On 11 April 2016, the applicant (referred to as ‘the applicant’ or ‘the husband’ interchangeably) applied for a Partner visa[1] (‘the visa’) on the basis of his claimed relationship with the review applicant (and his sponsor), Mrs Sylvia McGrath (referred to as ‘the review applicant’ or ‘the wife’ interchangeably).[2]
[1]Specifically, a Partner (Provisional) (Class UF)(subclass 309) visa and a Partner (Migrant) (Class BC)(Subclass 100) visa.
[2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class UF contained only one subclass: Subclass 309 (Partner (Provisional) and Class BC contained only one subclass: Subclass 100 (Partner). The criteria for the grant of these visas are set out in Parts 309 and 100 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.
On 27 June 2018, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that the applicant and the wife (‘the applicants’) were in a spouse or de facto relationship as defined by sections 5F and 5CB (respectively) of the Act (‘the delegate’s decision’).[3]
[3] See clauses 100.221 or 309.211 of the Regulations.
On 3 September 2018, the review applicant applied for a review of the delegate’s decision with this Tribunal.[4]
[4] Pursuant to sections 338(2) and 347 of the Act.
The applicants were represented in relation to the review, but their representative ceased acting on 1 August 2022, a week before the matter was listed for hearing.
On 8 August 2022, the review applicant and the applicant appeared before the Tribunal – the review applicant in person and the husband via telephone. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages whenever the husband was present.
It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicants’ case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant(s), in as much detail as necessary to enable the decision maker to properly consider the case that is being put.[5]
[5]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.
I have proceeded to a decision having regard to all the information before me. For the following reasons, the decision under review is affirmed. In reaching its decision, I have regarded:
a.the oral evidence of the review applicant and the husband given at the hearing;
b.all material filed by or on behalf of the applicants; and
c.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.
STATUTORY AND LEGAL FRAMEWORK
The applicants’ subclass 100 Partner visa must be dismissed, as it was at first instance, as clause 100.221(2)(a) of the Regulations requires that an applicant must hold a subclass 309 (Partner (Provisional)) visa at the time of decision. This criterion was not met at the time of the delegate’s decision and remains unmet. This issue did not appear to be in issue.
The issue in this case at the time of the application for review was whether the applicants are in a de facto relationship as defined by section 5CB of the Act.
Clauses 309.211(2) and 309.221 of the Regulations require that at the time the visa application was made, and at the time of this decision, the husband 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 husband claims to be the spouse of the review applicant, who is an Australian born Australian citizen. Based on the information before me I am satisfied that the review applicant is an Australian citizen.
Valid marriage
If the applicants are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicants have filed a copy of their Marriage Certificate with the Department which indicates they were married on 24 January 2013.[6] However, the applicant did not file a complete copy of his divorce certificate in relation to his first wife with the Department and the delegate was not satisfied that he and the review applicant were validly married as the applicant had provided insufficient information to demonstrate he was not still legally married to a person other than the sponsor when they married. The delegate therefore assessed the applicants’ application on the basis of the ‘de facto’ criteria under the Act and Regulations.
[6] See folio 57 of the Department file.
The applicant has now filed a complete copy of his divorce order from his first wife with the Tribunal which indicates his first marriage was dissolved on 12 June 2012.[7]
[7] See submissions of 1 August 2022.
On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a).
‘Spouse’ is defined in section 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship and have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, and the couple live together, or not live separately and apart on a permanent basis.[8] 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 applicants’ household and their commitment to each other as set out in clause 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[9]
[8] Section 5F(2)(aa)-(d).
[9] He v MIBP [2017] FCAFC 206.
The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicants’ case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.
Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[10] In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[11]
[10] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.
[11]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].
If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[12]
[12]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].
It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[13]
CONSIDERATION OF CLAIMS AND EVIDENCE
[13]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].
Timeline
The review applicant was unable to recall the exact year of her first marriage or her separation from her first husband at hearing. I consider it likely that she was married in or around the late 1990s. There were four children of that marriage: Stephanie (born in 1998), Tiffany (born in 2000), Sonia (born in 2001) and Daniel (born in 2004).[14] The review applicant said that she and her husband separated when her youngest son Daniel was a baby.
[14]See divorce order filed 1 August 2022 and evidence at hearing.
The applicant married his first wife in April 2008, they moved to Australia together in April 2009 on the applicant’s first wife’s student visa.[15] That student visa was cancelled in April 2010 and the applicant remained onshore unlawfully for some months until June 2011 when he made a [permanent] visa application.[16] [His] application was refused by the Department on 30 December 2011.[17] The applicant sought a review of that decision with this Tribunal and the Department’s decision to refuse his application for [that] visa was affirmed on 10 May 2012.[18]
[15]See divorce order filed 1 August 2022, evidence at hearing and related case number 1201072.
[16]See evidence at hearing and related case number 1201072.
[17]See evidence at hearing and related case number 1201072.
[18]See evidence at hearing and related case number 1201072.
The applicant divorced his first wife on 12 June 2012.[19] There were no children of that marriage.[20]
[19]See divorce order filed 1 August 2022.
[20]See divorce order filed 1 August 2022 and evidence at hearing.
The applicants met in July 2012 and claim to have committed to a shared life to the exclusion of all others on 11 November 2012.[21]
[21]See folio 18 of Department file and page 5 of their application form filed with the Department.
The review applicant divorced her first husband on 1 November 2012.[22]
[22]See divorce order filed 1 August 2022.
The applicants applied for a partner visa on 10 May 2013.[23] The applicant did not meet criterion 3001 of Schedule 3 of the Regulations as he ceased holding a substantive visa on 16 April 2010, being more than 28 days prior to lodging that application. In those circumstances the applicants had to show compelling reasons for the Schedule 3 criteria to be waived.[24] The Department refused that application on 2 December 2013.[25] The applicants sought a review of that decision with this Tribunal and on 11 August 2014, the Tribunal affirmed the Department’s decision to refuse their partner visa application.[26] The applicants appealed the Tribunal’s decision to the Federal Circuit Court of Australia and the Tribunal’s decision was upheld by that court in an order of 28 July 2015.[27]
[23]See related case number 1319092.
[24]See clause 820.211(2)(d)(ii) of the Regulations.
[25]See related case number 1319092.
[26]See related case number 1319092.
[27] See Court reference: MLG1870/2014.
The applicant departed Australia and returned to India on 21 October 2015.[28] The review applicant travelled with him to India on 21 October 2015 and returned to Australia on 17 November 2015.[29]
[28]See flight booking filed 1 August 2022.
[29]See flight booking filed 1 August 2022.
On 11 April 2016, the applicants made the application which is the subject of this review.
From 2 March – 28 July 2017, the review applicant visited the husband and his family in India.[30]
[30]See divorce order filed 1 August 2022.
On 20 June 2017 the Department conducted a site visit in India which was the subject of a natural justice letter sent to the applicants on 25 September 2017.
Evidence Generally
Although many aspects of the applicants’ evidence were consistent, there were several significant inconsistencies which suggest to me this is not a genuine relationship. I hold serious concerns about the applicant’s reliability and credibility. When all material is viewed together, I do not consider the applicants have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship is genuine and continuing, and that the couple is living together, not separately and apart on a permanent basis. The reasons for these concerns are set out below.
Financial aspects of the Relationship
Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.
The applicants have filed bank statements for a joint account held between 2014 and 2017 although these documents show minimal transactions, copies of tickets purchased for events attended together in June 2017 and a hotel room on 7 June 2017.[31] The applicants have also filed many gas and electricity bills from 2015 and 2016 addressed to both the review applicant and the applicant at the same address although the account holder for these bills is only the review applicant.[32] The applicants have also filed bills for their internet in joint names from 2013-2017.[33]
[31]See documents filed 1 August 2022.
[32]See documents filed 1 August 2022.
[33]See documents filed 1 August 2022.
The applicants filed a MoneyGram dated 23 January 2017 which indicates the review applicant sent the applicant INR25,308 at that time and an Indian fixed deposit statement indicating the bank received INR49,500 from the applicant on 14 February 2017 listing the review applicant under ‘Nomination status’.[34]
[34]See documents filed 1 August 2022.
The applicants gave consistent evidence that the review applicant recently sold her house, which had been bequeathed to her by her grandparents but needed renovating which she could not afford. They also gave consistent evidence about the financial and practical circumstances surrounding the purchase of her new house.
The applicants gave consistent evidence at hearing that the review applicant receives AUD800 per fortnight from Centrelink, the applicant works with his brother in a jewellery store in India, the review applicant sent the applicant money in India twice and that the applicant helped out financially when he was living with the review applicant in Australia. However, there were issues and inconsistencies in the evidence around this information which raise concerns for me:
A.The review applicant did not know the applicant’s income in his work at the jewellery store;
B.The review applicant gave direct evidence that she is on a disability pension and has never worked. She gave direct and clear evidence that she has an intellectual disability and was able explain the ways in which it impacts her life which was also apparent from the nature of evidence where she found any questions about dates, timelines or numbers very difficult to answer. The applicant gave evidence that his wife was not on a disability pension, that ‘there is no disability’ and that she receives money because she is not working. I am very troubled by this evidence and the nature of an individual’s income is something that one would expect a genuine spouse to know. This also creates other credibility issues which I elaborate further on below;
C.The review applicant knew that she had sent the applicant money ‘once or twice’ in India ‘a couple of years ago’ but could not recall what that money was for. The review applicant gave evidence that his wife sent him money twice because he was facing some financial troubles at that time; and
D.The review applicant gave evidence that she sold her house online and the applicant gave evidence that his wife sold her house by auction. Selling a house is a significant life event and I consider the details surrounding this would be discussed by spouses who are speaking every day.[35]
[35]See evidence at hearing.
The review applicant was able to recall the work her husband engaged in in Australia and knew that he is currently living with his mother and brother and that his mother is not working – the applicant gave consistent evidence in this regard.
The parties have not pooled their financial resources in a substantive way or in relation to major financial commitments. There is no evidence of any joint ownership of real estate or other major assets or any joint liabilities. There is no evidence that the parties owe any legal obligation in respect of the other.
Whilst I acknowledge some joint bills/expenses and joint bank account documents and some consistent evidence given at hearing in relation to the financial aspects of the relationship, this evidence must be weighed against the evidence set out in paragraph 33(A)-(D). Taken as a whole, I do not consider the evidence supports findings in the applicants’ favour in relation to the financial aspects of the relationship.
Nature of the Household
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

The applicants gave consistent evidence that the applicant does not have any children and the review applicant has three daughters and a son and that her son (‘Daniel’) is disabled and unable to speak. They gave consistent evidence that the review applicant’s ex sister-in-law successfully applied for guardianship of Daniel some years ago and he lives with her, but the review applicant does still see him. They gave consistent evidence about the review applicant’s daughters’ current living circumstances and that none of the review applicant’s children live with her.
The applicants have filed evidence that they commenced living together in January 2013 until the applicant departed Australia in October 2015.[36] I note the applicants have filed many gas and electricity bills from 2015 and 2016 along with internet bills from 2013-2017 addressed to both the review applicant and the applicant at the same address.[37] However, the fact that these bills bear both names at the same address during 2016 and beyond raise concerns for me given the fact that the applicant was living in India by that time and therefore I do not consider these bills are strong evidence that the applicants were living together. Further, the review applicant gave evidence at hearing that the applicant was living with his cousin and then corrected herself saying ‘he lived with me when we got to know each other and stuff, later’. The way in which this evidence was given raised concerns for me that the applicants may not, in fact, have been living with each other. This concern is exacerbated by the information set out in the natural justice letter of 25 September 2017 which refers to a site visit of 20 June 2017 where the review applicant appeared to be living in a separate building to the applicant and his family when she visited him in India.
[36]See folio 50 of the Department file.
[37]See documents filed 1 August 2022.
The applicant stated in his response to the natural justice letter, and the applicants both gave evidence at hearing, that the day of the Department’s site visit occurred at a time when the applicant’s aunt, brother and sister-in-law were also staying with the applicant’s mother and so all of the women stayed in one room and all of the men stayed in another room.[38] At hearing, for the first time, the applicant elaborated on this saying that it was summer and not all rooms are airconditioned and so they separated the inhabitants by gender so everyone could sleep in an airconditioned room. I put to the applicant that he had never before raised this explanation and he said, ‘whatever they asked me I answered them, it was very hot weather, and I tried to explain’. I did not find this persuasive.
[38]See folio 233 of the Department file and evidence at hearing.
The applicant gave evidence at hearing that he hopes to have children with the review applicant. When I mentioned that the review applicant is now 47 years old, he said that they will consult a doctor and if not, they have Daniel, and he is happy with Daniel. I am puzzled by this explanation as Daniel does not live with the review applicant. The review applicant gave evidence at hearing that she does not know if she can have more children and that she and the applicant talk about it but when I asked how her husband felt about not having children, she said ‘I can’t answer that question’. I am troubled by this.
The applicants gave consistent evidence that when the applicant lived in Australia he helped with Daniel when he was with the review applicant. However, the applicant gave evidence that Daniel is 14 years old, and the review applicant gave evidence that Daniel is 18 years old.
The applicants gave consistent evidence about the location of the review applicant’s previous house that they claim to have lived in together and the address of her new house and why she had to sell (as set out above in paragraph 33).
On balance, I consider the household aspects of the relationship weigh against a finding in favour of the applicants.
Social Aspects of the Relationship
Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
The applicants have filed several statutory declarations and statements from friends and family which are relatively generic in nature, stating that the applicants are in a genuine committed relationship.[39] They have also filed a letter of support from a Municipal councillor in India and a neighbour in India.[40]
[39]See folios 27 and 132-136 of the Department file.
[40]See folios 138-139 of the Department file.
The applicants filed documents from the review applicant’s Facebook page which indicate that from 2013-2016 the review applicant has presented herself to the world as in a relationship with the applicant.[41] Although the applicant has commented on many of the review applicant’s Facebook posts, the evidence suggests that he made these comments on the same day, often years after the original post. I put this to the applicant at the hearing and indicated that it seemed to suggest he was trying to create evidence to bolster his case. The applicant said he does not use much social media, only once in six months and if he likes something, he comments but if he doesn’t, he doesn’t comment. I did not find this explanation persuasive and am concerned that the applicant’s comments on the Facebook posts reflect a desire to secure a migration outcome rather than a genuine spousal relationship.
[41]See submissions of 1 August 2022.
The applicants have filed documents from the applicant’s Facebook page which are mostly photos of the applicants together during the review applicant’s visit to India in 2017.[42]
[42]See submissions of 1 August 2022.
The applicants both gave evidence at hearing that when they got engaged the applicant did not give the review applicant a ring. The review applicant was wearing a ring on her right hand, which is not the traditional hand for wearing a wedding ring in Australia, at hearing and gave evidence that her husband had this ring made. However, when asked if either he or his wife wear rings now the applicant said ‘no’. This evidence puzzles me.
The applicants have filed many photos, which mostly appear to be during the review applicant’s visit to India, together and together with the applicant’s family – at home and undertaking various activities. Although the review applicant could not recall everyone’s names, she knew who the people in the photos were by reference to their relation to her husband.
The applicants gave evidence at hearing that the review applicant’s family do not like the applicant or support her relationship with him. They gave evidence at hearing that no one outside of their two witnesses attended their wedding ceremony.
The delegate’s decision notes that the member of the community in India were unaware of the applicant’s marriage to the review applicant and although the applicant’s family knew about his marriage, they did not have the level of knowledge about the review applicant that would be expected in circumstances where the applicants had been married for four years at that time. The delegate’s comments are supported by the site visit notes and I echo those concerns. The applicant’s response to the natural justice letter which was sent in this regard indicated that his mother struggled with English names.
I find the evidence finely balanced in relation to the social aspects of the relationship.
Nature of the applicants’ commitment to each other
The duration of the relationship, the length of time during which the applicants have lived together, the degree of companionship and emotional support that the applicants draw from each other and whether the applicants see the relationship as a long term one are all aspects to be considered in determining the nature of the applicants’ commitment to each other.
I acknowledge that the applicants have now been married for more than nine years. They have filed a document which appears to reflect a period of two weeks in their relationship where they spoke regularly, often twice a day for between 20-40 minutes. I acknowledge this evidence but am puzzled by the fact that the applicants have not filed more communication records given the length of their claimed relationship.
The review applicant gave evidence at hearing that suggested she draws companionship and emotional support from the applicant including that she called him when she was too hot and felt faint at the markets in India and he came from work to take her home and that he was helpful with Daniel when he lived in Australia.
The applicant expressed concern for the review applicant in evidence at hearing and said he wants to her help her improve her health but did not have detailed knowledge beyond the review applicant’s cholesterol and obesity which concerns me. The review applicant gave evidence that she has many more issues than her cholesterol and weight including thyroid and kidney issues and that she takes medication every day. The applicant did not mention this in his evidence although he mentioned her high cholesterol several times.
The applicants gave consistent evidence that the review applicant suffered from headaches and migraines while she was in India and she attended an eye hospital there (which is supported by a corroborating document from the hospital) which did not indicate any problems with her eyes.
The review applicant gave evidence at hearing that she could not live in India, she had never travelled overseas before meeting the applicant and found the heat difficult and she is ‘used to living in Australia’. The applicant gave relatively consistent evidence in this regard.
The applicants gave consistent evidence at hearing that their future plan was for the applicant to move to Australia, and he could help the review applicant with her children (although none of them live with her) and support her. However, the applicant gave clear evidence that he would seek work as a taxi driver but when asked what the applicant would do for work at hearing the review applicant said, ‘I can’t answer that’. I consider future employment plans to be something spouses in a genuine relationship would discuss and have knowledge about.
The applicant stated at hearing that the relationship is real and that it has been ten years and they will stay together regardless of their outcome in this case.
I consider the review applicant’s commitment to a shared life as a married couple to the exclusion of all others is greater than that of the applicant’s. However, the critical question in cases of this nature is whether the commitment is mutual, not the degree of commitment.[43] I have serious reservations about the reliability and credibility of the applicant which raises concerns for me about whether his evidence in relation to his commitment to the review applicant is genuine and reliable or whether he is giving this evidence in order to secure a migration outcome. This is discussed further below.
[43] Ndegwa v MIMIA [2005] FMCA 74.
I place some weight in favour of the applicants in relation to the commitment and companionship factors.
Credibility Concerns
The applicant has a history of noncompliance which concerns me. In this regard I refer to the applicant’s previous student visa cancellation and subsequent two periods of unlawful residence resulting in a Schedule 3 Partner visa application. The applicant gave evidence at hearing that his first wife did not tell him she had breached her student visa conditions and that their student visa had been cancelled. I note that the divorce certificate filed by the applicant indicates that his first wife left Australia in October 2009 and one would assume from that time the applicant was on notice that she was not complying with the conditions of her student visa. Further, I also consider it is incumbent upon individuals residing onshore on a visa to ensure they are complying with their visas at all times.
The applicant originally only filed the first page of his divorce certificate from his first wife with the Department. The delegate considered they could not be satisfied he was divorced and was not satisfied there was a valid marriage and proceeded to consider the applicants’ case on the de facto basis rather than the spouse basis. Upon review, the applicant filed a complete copy of his divorce certificate from his first wife.[44] When asked at hearing why he did not file the entire divorce certificate at first instance, the applicant gave evidence that he hired a lawyer to provide the papers to immigration, but he did not do this properly and it was the lawyer’s fault. I asked by the applicant divorced his first wife and he gave evidence that she divorced him, they had come together to Australia and after six months she returned to India, got remarried and sent him the divorce papers. I enquired about what his first wife’s situation was now, and he gave evidence that he does not have any contact with her. I asked when the last time he had heard from her was and he gave evidence that he has not spoken to her since the divorce papers were sent to him. I note that the divorce papers are dated 12 June 2012.
[44]See submissions of 1 August 2022.
I put to the applicant that the reason he did not file the entire divorce certificate was because it contained information that was not positive to his character. I read the information in the second and third pages of the divorce certificate including that the applicant made taunting remarks, demanded dowry, did not respect his first wife and the divorce was granted on the grounds of cruelty and desertion. The applicant gave evidence that ‘these allegations are all wrong and she did the wrong allegation on me because she wants a divorce’.
The applicant made a [permanent] visa application in June 2011, following his unlawful residence onshore.[45] [Details deleted.]
a)    [Details deleted.];
b)    [Details deleted.]; and
c)    [Details deleted.].
[45]See evidence at hearing and related case number 1201072.
The applicant gave evidence at hearing that his lawyer in Australia got into some trouble and he could not find him and that he did not know about the [details in this] visa application. [Details deleted.].
However, the applicant applied for a partner visa in May 2013, he appeared before this Tribunal and gave evidence in support of that application on 19 June 2014.[46] I put to the applicant that the Tribunal’s decision indicated that he had given evidence in that case [regarding his ex-wife’s family]. The applicant did not offer any meaningful response to this. He said ‘it’s been 10 years with my wife, the relationship is not a lie, I just want to live legally in Australia, that’s why I came back because I don’t want to live in India, my relationship is true, we want to stay always’.
[46]See evidence at hearing and related case number 1319092.
I took the applicant through the section 359A provisions and explained that I held serious concerns about his inconsistent evidence and that these raised reliability issues for him as a witness. He did not have any comment on this. I raised the fact that he had been living in Australia unlawfully when his first wife’s student visa was cancelled and again for some time after his [next unsuccessful] visa application and he said the first unlawful residence was his wife’s fault for not telling him anything and the second unlawful residence was his lawyer’s and agent’s fault because whenever he asked them to provide him with information they did not. I do not find this explanation persuasive.
Despite having his age wrong by four years, the applicant also gave evidence at hearing that when he returned to India, he and the review applicant will seek to regain custody of Daniel. When giving this evidence the applicant also mentioned that Daniel’s Centrelink payments go to his aunt who cares for him but ‘we have decided when I come, we will keep Daniel with us’. This concerns me.
I am also troubled by the fact that the review applicant gave clear evidence at hearing that she has an intellectual disability and is on a disability pension, but the applicant was adamant that ‘there is no disability’ and claimed that the review applicant was receiving Centrelink payments because she did not have a job. The review applicant gave evidence at hearing that her intellectual disability can make shopping difficult, and she needs to make sure she has the right money. She regularly had difficulty answering any questions about dates or timeframes and often answered ‘a couple of years’ for periods that could have been closer to five or ten years ago along with getting actual dates wrong by decades. In my view it would be apparent from anyone who spent more than half an hour with the review applicant that she suffers from some form of intellectual impairment. The evidence also indicates the review applicant’s daughters have lived with her parents for much of their lives. The review applicant gave evidence that her first husband also had an intellectual disability and was on a disability pension and it seemed he has had very little or nothing to do with his children.
I put to the applicants (separately) at hearing that the site visit notes indicated that the applicant walked in during the review applicant’s interview with the Department staff when she could not answer one of the questions. The review applicant gave evidence that they were about to finish, and he walked in so they could talk to him. I clarified that he had walked in nearer to the start of the interview when she could not answer some of the questions she was being asked and he tried to answer for her. She initially explained that she had difficulty remember the Indian names and I explained that I was concerned he was trying to secure a migration outcome and that this was not a genuine relationship. The review applicant had no response to this suggestion. When I put the applicant’s conduct during the site visit to him during the hearing, the applicant said he was about to bring water in, and they asked him to leave. I told him that the notes did not say this and that they said he was trying to answer the questions for the review applicant. The applicant then said he could not remember as it had been four or five years. I asked him what he said to the suggestion that he was trying to secure a migration outcome rather than being in a genuine relationship and he said, ‘if it’s not real it’s been ten years and after any outcome we are staying together’.
I am very concerned that the applicant is attempting to take advantage of the review applicant’s limited intellectual capacity in order to secure a migration outcome.
I consider that the applicant’s history and evidence taken as a whole raise concerns about his integrity and reliability as a witness. He submits that his unlawful residence and his inconsistent evidence are the fault of his first wife, his lawyer or his failing memory. Significant resources have been outlaid in relation to the applicant’s unsuccessful visa applications, unsuccessful merits review application in 2015 and now the application and review application that sits before this Tribunal.
I am concerned that the applicant is prepared to do whatever is necessary to obtain a positive migration outcome and that this application falls within the ambit of that course of conduct. In relation to motivations, save in exceptional cases, the credibility of an assessed motivation will be supported or undermined by its coherency with the surrounding circumstances.[47] I consider that a desire to secure a positive migration outcome being the primary motivation for the applicant pursuing this application is consistent with and coherent with the surrounding circumstances in this case.
[47]See Singh v Minister for Home Affairs [2020] FCAFC 7 at [84].

The Tribunal Guidelines in relation to assessing credibility dictate that evidence is to be assessed in its entirety, not just in isolated parts.[48] The guidelines also state that Members should focus on what is objectively or reasonably believable in the circumstances. The Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.[49] Where evidence is incoherent, vague or lacking the detail or knowledge where greater detail or knowledge might be expected of a person in the applicant’s claimed position, the weight placed on the applicant’s evidence may be limited and the applicant’s credibility may be questioned.[50]
[48]Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997); Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J, with whom North J agreed, at [50]; Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
[49]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at 348.
[50]Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827 per Tamberlin J at [9], upheld on appeal, Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963 per Goldberg J at [20] to [23]; “T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [27]-[47]
I am concerned about the reliability of the applicant as a witness. These concerns are exacerbated by his evasiveness during the hearing whenever any inconsistencies were put to him.
CONCLUSIONS
There are hundreds of pages of documents before me. I have read and carefully considered each of these, although they may not all be referred to in the written decision herein. I have assessed the evidence before me. I accept that the applicants have known each other for over ten years now.
However, I am very concerned about the nature of the applicant’s motivations and much of the inconsistent evidence given by the applicants as set out above.
Having regard to all of the circumstances of the relationship and the evidence taken as a whole, I am not satisfied that when the application was made or at the time of this decision, the applicants have a mutual commitment to a shared life to the exclusion of others or that their relationship is genuine and continuing and I do not consider the applicants are living together, or not separately and apart, on a permanent basis.
I am not satisfied that the requirements of section 5F(2) are met at the time the visa application was made or at the time of this decision.
Therefore, the applicant does not meet clause 309.211 or 309.221 of the Regulations. Necessarily, he cannot satisfy the requirements of a subclass 100 visa as it is contingent upon a successful subclass 309 visa having been held.
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
decision
The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa or a Partner (Migrant) (Class BC) visa.
T. Quinn
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).