Miles-Lewis (Migration)

[2021] AATA 5559

Miles-Lewis (Migration) [2021] AATA 5559 (30 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jay Miles-Lewis

CASE NUMBER:  2002285

DIBP REFERENCE(S):  BCC2017/1112222

MEMBER:Mila Foster

DATE:30 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 30 November 2021 at 4:32pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – sponsor had withdrawn her sponsorship – lack of supporting evidence about the current nature of the parties’ relationship – parties have been living apart for about 18 months – applicant is not the de facto partner of the sponsoring partner – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 801.111, 801.221

CASES
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 January 2020 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 March 2017 on the basis of his relationship with his sponsor, Nicole Gross. It was a combined Partner (Temporary) (Class UK (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa application. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Subclause 801.221(1) requires a (primary) applicant to satisfy one of several subclauses of cl 801.221 at the time of decision. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of decision, the applicant is the spouse or de facto partner of the sponsoring partner. The ‘sponsoring partner’ is the Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant: cl 801.111

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221(1) because the sponsor had withdrawn her sponsorship, advising that her relationship with the applicant had broken down.

4. The applicant appeared before the Tribunal on 28 September 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant and Miss Gross (the sponsoring partner) are in a de facto relationship at the time of decision.

   Summary of claims and evidence

7. The evidence before the Tribunal includes the Department file relating to the applicant’s visa application[1],  the applicant’s response to an invitation sent by the Tribunal regarding adverse information about his relationship with the sponsoring partner, supporting evidence provided on review, and the oral evidence the applicant gave at the hearing. The Tribunal has had regard to all the evidence before it. The following is a summary of the claims and evidence.

   Department file

   [1] Department file BCC2017/1112222.

8. According to the visa application on the Department file:

   a.The applicant is a 38-year-old citizen of the United Kingdom.

   b.The applicant is a 38-year-old Australian citizen.

   c.The parties met on 17 February 2016 in Queensland.

   d.The parties’ de facto relationship began on 5 June 2016. That was when they committed to a shared life together to the exclusion of all others and began living together.

   e.The applicant had previously been married and in a de facto relationship, he was divorced and the de facto relationship ended before his relationship with the sponsoring partner began.

   f.The sponsoring partner had been married; she had divorced before her relationship with the applicant began.

   g.The sponsoring partner had three children, now aged 20, 18, and 13, from her previous relationship.

9. Evidence submitted in support of the visa application included but is not limited to the following:

   a.A written statement about the parties’ relationship made by the applicant on 14 March 2017.

   b.A written statement about the parties’ relationship made by the sponsoring partner on 14 March 2017.

   c.A letter of support from the sponsoring partner’s oldest son dated 14 March 2017.

   d.Letter of support from the sponsoring partner’s friend Glenn Bromley dated 14 March 2017.

   e.Copy of a lease entered into by the parties on 28 October 2017 for a property at [Address deleted] (in Queensland).

   f.A Form 888 statutory declaration made by the sponsoring partner’s mother, Veronica May Gross, on 15 March 2017.

   g.A Form 888 statutory declaration made by Jaqulin Anne Faulkner on 15 March 2017.

   h.A Form 888 statutory declaration made by Renee Kathryn Lalor on 15 March 2017.

   i.A Form 888 statutory declaration made by a friend of the applicant, Timothy James McIlwain, made on 15 March 2017.

   j.Sponsoring partner’s gym membership dated 19 July 2016 which states fees would be debited from a bank account in her name.

   k.2017-2018 car insurance issued to the applicant.

   l.Statements for the applicant’s bank account and the sponsoring partner’s bank account.

   m.Facebook posts.

10. In response to requests for additional documents and information sent by the Department on 19 April 2018 and 5 July 2018, the applicant provided further documents which included a civil partnership certificate and a Queensland vehicle registration notice for a vehicle registered in both the parties’ names.

11. On 29 August 2018, the applicant was granted a Partner (Subclass 820) visa.

12. On 27 March 2019, the sponsoring partner withdrew her sponsorship, advising the Department the parties’ relationship was ‘void and non existent’.

13. On 8 July 2019 the applicant submitted an ‘information for the permanent stage processing’ form in connection with his Partner visa application. In it he stated that the parties were still in a genuine and continuing relationship but noted that they had decided to live a part for a short period due to the trauma and loss they had experienced in the preceding 12 months (the loss of two pregnancies and a relative of the sponsoring partner having substantial surgery). He provided details about the financial aspects of the parties’ relationship, the nature of their household, the social aspects of the relationship, the nature of the parties’ commitment to each other, and the development of the relationship since he was granted the temporary Partner visa.

14. On 21 November 2019 the applicant was invited to comment on the following information by an officer of the Department:

    ·That the Department had received information on 27 March 2019 that his relationship had ceased and that his sponsoring partner had withdrawn her sponsorship.

    ·The office had contacted the sponsoring partner by telephone on 21 November 2018 and she confirmed that the parties had broken up in March 2019, and there had been no reconciliation since or any further contact between them. This information suggested that the parties’ relationship has broken down permanently.  

15. On 10 December 2019, the applicant responded to the above invitation. The response included a written statement made by the applicant on 9 December 2019 in which he stated the following:

    i.The parties’ relationship had not ended.

    ii.The parties had gone through a hard time in March 2019 due to health and financial problems.

    iii.The parties’ relationship had continued and they were working through some issues so they could move in together again with a better understanding of what each of them expects from the other in the relationship.

    iv.The applicant was undergoing therapy to deal with ‘childhood tumuor’.

    v.The applicant had evidence of the relationship continuing including his latest telephone bill showing calls and messages, receipts for trips, and photographs.

    vi.The applicant still paid the electricity bills for the property the sponsoring partner lived in, bought her a car, paid for her gym membership, and bought her items for her children.

    vii.The applicant picked up the sponsoring partner’s youngest son from school and the middle child from work and let the oldest child borrow his camping equipment.

    viii.The applicant could provide a character reference from his work manager and sponsoring partner would provide a statement as well.

16. The applicant submitted a phone bill, a few photographs, and copies of a few Facebook posts.

17. The delegate noted in the decision record that the sponsoring partner had not revoked her withdrawal of the sponsorship.

    Evidence on review

18. Documents submitted with the review application included undated and unsigned letters from the applicant and from the sponsoring partner, and a character reference from the applicant’s employer.[2]

    [2] Dated 3 December 2019.

19. On 11 March 2020, the Tribunal received an email from the sponsoring partner which indicated that the parties’ relationship had ended. She stated:

    I am writing to notify you of a change of circumstances . Today's date is 11th march 2020. After inquiring on Fri 28th Feb to the status of Jay miles Lewis s appeal and visa status. He then instigated an argument and took off to Byron bay for a boozy night out . I waited these past weeks in hopes of honest reconciliation however have found that he has lied and been unfaithful to our relationship agreement.

    This Is a pattern of behavior throughout our relationship where I feel coerced Into supporting him only to be left high and dry and i no longer wish to have anything to do with this appeal or visa process . I here by withdrawn my support for his visa appeal and application and state that there is no chance of reconciliation.

20. On 26 July 2021 the Tribunal invited the applicant to respond to the information provided by the sponsoring partner that the relationship had ended and to provide information as to whether any of the exceptions under which a Partner visa can be granted even though the relationship has ended, applied to his circumstances. The applicant responded as follows in a letter dated 1 August 2021 in which he also said he could provide recent evidence of the relationship if required:

    I (Jay Miles-Lewis) and Nicole Gross have been in a relationship now for 6 years, you could argue its not what it isn’t a normal relationship, but it works for us. We are committed to each other and have no outside influences we support each other physically and emotionally. My day-to-day examples, I pick Nicole’s youngest child up from school and I take him to football training Nicole is having medical issues and finds it very difficult to drive. I also provide transport for Nicoles 2nd child and support them in anyway possible. I also provide Nicole with as much transport as possible i.e. we have been to the hospital many times over the last 18 months, I also spend a lot of time with nicole doing choirs and projects around the house from building chicken pens to mowing lawns, I have accompanied Nicole on work events and family events and we take trips when ever a situation presents its self. Like today we have planned to go away for my birthday next week, but the argument can be made because we do nit live together although I spend 90% of my time at Nicoles house, due to some mental health and some trauma from our previous marriages we do need time apart now and then, but that doesn’t mean we don’t love each other we standby each other and do what we can to be there for each other, I have countless phone records of text messages and phone calls Facebook messages Photos and our de facto certificate. Our relationship isn’t perfect, but we do our best with the challenges we all face, and we have overcome a lot of challenges so far and hope to get through this one together.

21. In response to the Tribunal’s hearing invitation the applicant stated that he wished to Tribunal to take oral evidence from his sponsoring partner; he said she could confirm they were still in a relationship. As indicated above the applicant attended the hearing. The hearing was conducted via video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The sponsoring partner did not attend the hearing. The applicant said she had an operation the previous day and was not fit to attend. The Tribunal will refer to the evidence presented at hearing in its consideration below. At the hearing the Tribunal noted the lack of supporting evidence about the current nature of the parties’ relationship and that the Tribunal had to be satisfied the parties were in a de facto relationship at the time of decision. The Tribunal gave the applicant time to submit documentary evidence after the hearing to support the oral evidence he had given.

22. After the hearing the applicant presented photographs, a bond document relating to property he had leased on his own, a copy of a Facebook post and a statutory declaration made by the sponsoring partner on 10 October 2021. The sponsoring partner declared the following in her statutory declaration:

    I acknowledge my previous statement of withdrawal of support for the relationship visa with jay Miles Lewis and at the time it was true and correct. Since that time jay and I have reconciled some differences and come to terms with the loss of an unborn child. Our relationship has been strained. We do not live together and do not share finances as I have children from a previous relationship with responsibilities and priorities that jay does not and this has been a difficult thing to navigate. We do not interact again and relate as a couple although this is different to a traditional relationship. Jay has been away alot for work  which makes it difficult to maintain a relationship he is looking to change that in the future. I do not know what the future holds but we are in agreement to try councilling.

    Are the parties in a de facto relationship?

23. De facto partner is defined in s 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).

24. It is not claimed nor is there evidence before the Tribunal that the applicant and the sponsoring partner are married to each other. The evidence indicates the parties are not related by family.

25. In forming an opinion whether the parties 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 r 1.09A(3) which is attached to this decision. Each of the specific matters contained in r 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206. They are not however a checklist of matters that must be met before the Tribunal can find a relationship is a de facto relationship. In considering the circumstances of the relationship the Tribunal has had regard to all the evidence relating to the relationship including the past 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; any sharing of day-to-day household expenses.

26. The applicant stated at the hearing that the parties had no joint major assets, no joint liabilities, and no joint bank account. He indicated there was no pooling of financial resources but he said, as he had stated in writing, that he had bought the sponsoring partner a car. He said the car was in his sponsoring partner’s name and her son’s name, and that the parties were in each other’s car insurance. The applicant stated the sponsoring partner was the beneficiary of his superannuation and life insurance. He said he did most of the driving and so paid for the cost of that. As will be elaborated on below, for the past 18 months the parties have not shared one residence together. The applicant stated he nevertheless continued to pay the electricity for the property where the sponsoring partner lived with her two youngest children. He said the parties split the cost of groceries and he paid for other smaller expenses such as filling the gas bottle for the cooker and household maintenance (at the sponsoring partner’s residence).

27. At the hearing the Tribunal emphasised that it needed to be satisfied that the parties were in a de facto relationship at the time of its decision and noted the dearth of supporting evidence about the current nature of the parties’ relationship. The Tribunal gave the applicant the opportunity to provide supporting documentary and photographic evidence after the hearing noting specifically that he could, for example, provide documents relating to the parties’ car insurance and his superannuation. In the statutory declaration provided after the hearing, the sponsoring partner stated that the parties did not share finances. She did not mention the financial aspects of the parties’ relationship which the applicant had referred to at the hearing such as the sharing of grocery costs, that she was the beneficiary of the applicant’s superannuation and life insurance, or that he paid the electricity bills for her residence. Nor did the applicant provide any supporting documentary evidence about the financial aspects of the parties’ relationship after the hearing even though, in the Tribunal’s view, that evidence would have been readily available to him.

28. The lack of documentary evidence and corroboration from the sponsoring partner to support the applicant’s written and oral claims about the financial aspects of the parties’ relationship raises doubts about the veracity of those claims. Further, the lack of joint assets, liabilities and pooling of financial resources in any substantial way in a relationship the applicant claimed had been ongoing for 6 years is not indicative of a mutual commitment to a shared life or a continuing relationship.

    Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

29. The parties do not have children together. The applicant stated at the hearing that he did quite a bit to care for and support the sponsoring partner’s children. He said that picking up and dropping off of the two younger children was his responsibility. He said he took the middle son wherever he needed to go including university, work, the gym and driving lessons. He said he picked up the youngest son from school. The Tribunal expects that if that were the case, the sponsoring partner would have mentioned that in her statutory declaration. Instead, she said ‘I have children from a previous relationship with responsibilities and priorities which jay does not and this has been difficult thing to navigate’. This indicates to the Tribunal that the sponsoring partner’s children are her responsibility and that those responsibilities have been a cause, in some part, in difficulties the parties had in their relationship.

1. At the hearing the applicant confirmed, as he had indicated in writing, that the parties have separate residences. He said that for the preceding 18 months the sponsoring partner had been living at [Address 1] with her two youngest sons and he had leased a one-bedroom apartment at [Address 2]. However, he said, that even though he could not be ‘classed’ as living at the sponsoring partner’s address, he spent 6 to 7 nights a week at her residence so he lived there a lot. He said he slept at the unit he rented if he had a night shift, or the sponsoring partner was working late and he had an early start. He stated that he and the sponsoring partner shared the housework fairly equally. The applicant said the parties’ separate living arrangements began due to fiscal issues and struggles in the relationship. The bond document the applicant submitted after the hearing indicates that he had rented a property on his own from 30 April 2020. The sponsoring partner stated in her statutory declaration that the parties were living apart. The Tribunal thus accepts that the parties have been living apart for about 18 months, that is, since about April 2020. The Tribunal regards this a significant period of time. Further, the Tribunal notes that the sponsoring partner did not qualify her statement that the parties were living apart to indicate that the applicant spent most of the time at her residence nor did she mention the parties sharing the housework.

2. The significant period of time the parties have had separate residences suggests that the parties are not merely living apart and separately on a temporary basis while they work through their relationship issues. Further, the lack of corroboration from the sponsoring partner for the applicant’s oral claims about his contribution to the care and support of her children, the amount of time he spent at her residence, and the sharing of housework raises doubts about those claims.

3. Overall, the Tribunal has concluded that the applicant has at best exaggerated the nature of the role he plays in caring for and supporting the sponsoring partner’s children, how much time he spends at the sponsoring partner’s residence and the extent to which the parties share housework. The Tribunal is not satisfied that the applicant has substantial responsibilities for the care and support of the sponsoring partner’s children, that he spends most of his time at her residence or that the parties share housework to any significant extent. The Tribunal finds that the nature of the parties’ household is not indicative of the parties having a mutual commitment to a shared life, that the relationship is continuing and that they are living separately and apart on a temporary basis.

   Social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

4. The applicant asserted at the hearing that the parties represented themselves to family and friends as being in a de facto relationship with each other, and that their family and friends believe they are a committed de facto couple. He gave examples of social activities he and the sponsoring partner undertook with each other and family and friends some of which he had mentioned in writing. After the hearing he submitted a few photographs of what appear to be the parties alone together and hence are not evidence of how they represent themselves to others. Further, the Tribunal had asked the applicant at the hearing to annotate any photographs he submitted to indicate when and where the photographs were taken and who appeared in them, but he did not do so. However, it is apparent that some of them are the same photographs he had provided to the Department and hence do not reflect the current state of their relationship. There was one media post from 21 December 2020 and hence is also not a strong indicator of the current nature of the parties’ relationship.

5. The Tribunal specifically observed at the hearing that it had no supporting recent evidence from family or friends about the parties’ relationship and suggested this was something the applicant could provide after the hearing. He did not do so.

6. The sponsoring partner states in her post-hearing statutory declaration that the parties ‘now interact again and relate as a couple’ but does not elaborate on how they interact or relate as a couple.

7. The evidence about the social aspects of the parties’ relationship is minimal and largely based on the applicant’s own written and oral assertions. The evidence indicates that the parties are in a relationship of a kind and the sponsoring partner characterises them as a couple. However, it does not follow that a couple is in a de facto relationship. Further, the Tribunal is not satisfied on the evidence that the parties represent themselves to others as a de facto couple.

   Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

8. The applicant stated at the hearing that the parties had been in a continuous de facto relationship for 6 years and that there had been no break in the relationship. Based on the claims and evidence submitted in connection with the visa application, the parties began a de facto relationship on 5 June 2016. Hence, the duration of their relationship would be closer to 5 years than 6. Nevertheless, either 5 or 6 years represents a significant length of time.

9. However, the Tribunal does not accept that the relationship has been continuous since 5 June 2016. In the undated letter from the sponsoring partner which was submitted with the applicant’s review application,[3] the sponsoring partner stated that the parties’ relationship had broken down in March 2019. When this was put to the applicant at the hearing, he indicated he was unaware of the letter and suggested that the sponsoring partner had submitted it to the Tribunal without his knowledge and that she sometimes acted out of anger. The Tribunal does not find that explanation credible. The letter was submitted with his review application form along with an undated letter from him, and letter from his employer which indicates it was the applicant who submitted the sponsoring partner’s letter. Nor does it explain why the sponsoring partner’s anger would lead her to make a false statement about the parties’ relationship breaking down in the same letter that she indicated the relationship had resumed and was continuing. In addition, the sponsoring partner’s statement that the parties’ relationship had broken down in March 2019 is consistent with what the sponsoring partner had told the Department and was recorded in the delegate’s decision record. At the hearing the applicant said the sponsoring partner had told him that she had not spoken to anyone from Immigration. If that were true, then the Tribunal expects the review applicant would have corrected that in the letter he provided with his review application. Furthermore, the information the sponsoring partner provided in the email she sent the Tribunal on 11 March 2020 indicates the relationship had broken down a second time at the end of February 2020. The Tribunal put that information to the applicant at the hearing.[4] He responded that as far as he was concerned the relationship had never broken down, that was a reaction to a bad argument and the relationship was stronger and better than ever. The Tribunal does not accept that. The sponsoring partner’s statement that the relationship had broken down by 11 March 2020 was close to the time the parties began to have separate residences which they have maintained since. That indicates what occurred was more than merely a reaction to a bad argument. The Tribunal therefore does not accept that there have been no breaks in the parties’ relationship. The fact there have been breaks in the relationship in the past does not necessarily mean the parties are not in a de facto relationship now, but that the applicant has sought to deny the breaks in the relationship raises doubts about the reliability of his evidence regarding the current nature of the parties’ relationship.

   [3] Attached to the electronic review applicant form and referred to as ‘My Partners statement’.

   [4] In accordance with s 359AA. The applicant elected to respond at the hearing and did not seek an adjournment.

10. While the evidence indicates the parties have lived together for a significant period over the course of their relationship, they have now had separate residences for the last 18 months. This is a substantial period of time which suggests a significant change in the nature of the parties’ commitment to each other and whether it is a relationship that will last into the long term or endure into the reasonably foreseeable future.

11. In his written and oral evidence, the applicant stated that the parties continue to provide each other with companionship and draw emotional support from each other. He gave examples of this. In his letter of 1 August 2021, he said he had countless phone records of text messages and phone calls, Facebook messages and photographs of the parties. However, on review he has provided just a few unannotated photographs and one Facebook post from almost a year ago even though he has been well aware that the nature of his relationship with the sponsoring partner and whether it was continuing was in issue, and he has had ample opportunity to provide supporting evidence.

12. Finally, while the applicant has indicated he has a long-term commitment to the relationship, the sponsoring partner seems uncertain and tentative about the future of the relationship. She said in her statutory declaration the applicant’s work made it difficult to maintain a relationship and that he was looking to change that in the future and that they would try counselling. She did not explicitly express a long-term commitment to the relationship. The nature of the parties’ commitment does not have to be equal. However, given the previous breaks in the parties’ relationship and have been living apart for some time, this raises doubts about the sponsoring partner’s commitment to a shared life with the applicant and whether she views the relationship as a long term one.

    Any other circumstances of the relationship.

13. There are no other circumstances of the relationship which have not been considered above. 

    Conclusion – s. 5CB(2)

14. The Tribunal accepts that relationships are unique, they can have their ups and downs, there can be periods of separation followed by reconciliation, and can be even stronger after reconciliation than they were before. The Tribunal’s task is not to decide whether or not the parties relationship is ‘normal’ but whether the relationship is a de facto relationship within the meaning of s 5CB(2) at the time of decision.

15. Having had regard to the evidence before it, its consideration of the matters in r 1.09A(3) and the circumstances of the parties’ relationship, the Tribunal has concluded that the parties were in a de facto relationship in the past and accepts that they now have a relationship in which they consider themselves a couple. However, the Tribunal is not satisfied that at the time of decision the sponsoring partner is committed to a shared life with the applicant, that the relationship will endure for a period beyond the reasonably foreseeable future given the breakdowns in the relationship and significant period of time the parties have had separate residences, or that the parties are living separately on just a temporary basis given the significant period of time that the parties have had separate residences. The Tribunal thus finds that the parties do not have a mutual commitment to a shared life to the exclusion of all others, their relationship is not genuine and continuing, and they do not live together and are living separately and apart on a permanent basis. Therefore the requirements of s 5CB(2) are not met at the time of this decision.

    Conclusion

16. As the applicant does not meet the requirements of s 5CB(2) at time of decision, he is not the de facto partner of the sponsoring partner and thus does not satisfy cl 801.221(2)(c). The applicant has not claimed, and there is no evidence before the Tribunal, that he meets the alternative criteria in cl 801.221(2A), (3), (4), (5) or (6). Therefore, the applicant does not satisfy the criteria for the grant of the visa and the Tribunal must affirm the decision under review.

    decision

17. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Mila Foster
    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)