Naisan (Migration)

Naisan (Migration) [2023] AATA 2964 (16 August 2023)
Date of decision:        16 August 2023
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Wael Yoel Naisan
REPRESENTATIVE:  Ms Shereen El-Ali, Joseph Italiano & Associates
CASE NUMBER:  1908242
HOME AFFAIRS REFERENCE(S):          BCC2015/2234536
MEMBER:Michael Ison
DATE OF ORAL DECISION:  16 August 2023
DATE OF WRITTEN STATEMENT:         17 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations; and
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 17 August 2023 at 3:19pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – progression of relationship and valid marriage – financial, household and social aspects of relationship and nature of commitment – consistent oral evidence, statutory declarations and substantial documentation and submissions – contact between families – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221
CASE
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 27 March 2019 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant in this review is Mr Wael Yoel Naisan who was born in Iraq in March 1989. Mr Naisan acquired citizenship of the United States of America on 24 January 2014 and is referred to as the applicant in these reasons.
The applicant claims to be in a genuine spousal relationship with his wife, who is also his sponsor for the Partner visa application. The sponsor is Ms Marleen Butrus Odish, who was born in Iraq in April 1992 and acquired Australian citizenship on 2 July 2013. Ms Odish is referred to as the sponsor in these reasons.
The applicant first arrived in Australia on 16 March 2015 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa that was valid to 13 May 2015. On 13 May 2015 the applicant was granted an onshore Visitor (Class FA) (Subclass 600) visa that was valid to 12 August 2015.
The applicant applied for the Partner visa that is the subject of this review on 4 August 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.221 because the delegate found at the time of the delegate’s decision the delegate was not satisfied that the applicant and sponsor were in a genuine spousal relationship based on the evidence of that relationship provided to the Department. The Department sought additional evidence in support of the relationship from the applicant in December 2016 to which the applicant responded by providing a relationship statement and photos. The Departmental next made a request for the applicant to provide additional evidence of the genuineness of his relationship with the sponsor on 25 February 2019, over two years after the first request. The applicant did not respond to the second request.
At the time of applying for the Partner visa on 4 August 2015 the applicant was granted a Bridging A visa which is not subject to any conditions from Schedule 8 to the Regulations. The applicant continues to hold that Bridging A visa at the time of this decision and has not departed Australia since arriving on 16 March 2015.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal hearing
The applicant appeared before the Tribunal on 16 August 2023 to give evidence and present arguments, in person.
The Tribunal also received oral evidence in-person from the sponsor Ms Odish and from Mr Ramy Odeish, who is a brother of the sponsor and brother-in-law of the applicant. The sponsor’s mother, Mrs Najat or Najet Kyou Odish also attended the hearing. Mr Ramy Odeish’s family name is spelled differently on his Australian citizenship certificate to other family members and that is the spelling the Tribunal has used in these reasons.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The visa applicant was represented in this review by Ms Shereen El-Ali of Joseph Italiano & Associates, immigration lawyer. Ms El-Ali is referred to in these reasons as the applicant’s representative or the representative. The representative attended the Tribunal hearing in-person.
Pre-hearing submissions
The Tribunal received substantial submissions from the applicant in March 2023 and August 2023 updating the Tribunal about the applicant’s relationship and circumstance. The March 2023 submission included over 150 pages pf documents and the August 2023 submission included 800 pages of documents. The representative’s submissions directly addressed the determinative issues in this review, were well written and supported by well-ordered documents. The submissions the representative provided to the Tribunal on the applicant’s behalf were of considerable assistance to the Tribunal in the conduct of this review.
The March 2023 submissions included a two page statement from the applicant, a statutory declaration from a friend and former neighbour, the schedule page for a previous tenancy agreement in the joint names of the applicant and sponsor, a copy of their current residential tenancy agreement and receipts for rental payment in their joint names, copies of documents relating to the sponsor’s in vitro fertilization (IVF) treatment, screen captures of 16 pages of bank statements of a Westpac bank account in the names of the applicant and sponsor with samples of statements from August 2017 to January 2023 and 98 pages of photos showing their wedding ceremony, various social gatherings with their family and friends in the last several years and receipts for the purchase of jewellery and other goods and services associated with their engagement and wedding.
The August 2023 submission from the representative included an 11 page submission from the representative addressing questions of the Tribunal included in the hearing invitation and the determinative issues in this review, 85 pages of photos annotated with information about time, place and who is photographed, 162 pages of bank statements for the Westpac account in the joint names of the applicant and sponsor from 31 October 2019 to 1 August 2023, 138 pages of bank statements for a bank account in the name of the applicant from 3 February 2020 to 31 July 2023 – save for one missing statement, 127 pages of bank statements for an account in the name of the sponsor from 8 August 2019 to 6 February 2023, evidence of expenditure on ongoing IVF treatment, a letter from a hospital in relation to pending surgery for the sponsor, evidence of the applicant’s employment, 37 pages of hand-written invoices issued by the applicant as part of his business, the sponsor’s Centrelink Statement for Carer Payment, Deduction Statement and Income Statement with all three statements dated 20 July 2023 and a Centrelink payment summary for the 2022 – 2023 financial year, statutory declarations from four witnesses supporting the genuineness of the spousal relationship of the applicant and sponsor, a copy of the current rental agreement in the names of the applicant and sponsor and a receipt for their then most recent payment of rent, copies of various utility bills in one or both names evidencing the applicant and sponsor live at the same address and receipts for the purchase of jewellery and household items as evidence of joint expenditure.
The Tribunal confirmed with the representative at the commencement of the Tribunal hearing that these were all of the submissions provided to the Tribunal.
The Tribunal also engaged in other correspondence with the applicant and sponsor and their representative in relation to administrative matters associated with this review.
Tribunal decision
The Tribunal made an oral decision in this review at the conclusion of the Tribunal hearing on 16 August 2023, with written reasons to be provided later. The decision of the Tribunal was to remit the application of the applicant for a Partner visa back to the Department for reconsideration with a relevant direction.
The following are the written reasons of the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s 5F of the Act when considering the matters set out in reg 1.15A(3) as required by clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of a marriage certificate dated 21 July 2015 stating the applicant and sponsor were lawfully married in Victoria on 18 June 2015. On the evidence before it, the Tribunal finds the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
The Tribunal has considered the evidence that was provided with the primary application and has the benefit of additional oral evidence received at hearing and the substantial documentary evidence that has been submitted to the Tribunal in March and August 2023.
Background
The representative submitted the background to the relationship of the applicant and sponsor is as follows (errors in the original):
·When the parties met, they were living with their respective families in Jordan as refugees. Both of Iraqi descent.
·They had their first proper introduction at a church camp which had been organised by the AlMisdar Church in Jordan – Amman, in about in about 2006.
·The camp was for about 7 to10 days and it was a religious youth group camp where the parties were taught about the power of prayer, did group activities such as painting and team exercises. The parties came to know each other at the camp as the Sponsor’s (Marleen) friend was a friend of the Visa Applicant’s older brother. They started talking and exchanged numbers as there was an instant attraction and they kept in contact with each other after the camp ended.
·After the camp, they both began to attend church regularly and saw each other. They participated in church activities together and their families became close friends but at that stage the relationship was not a serious one to progress to engagement or marriage as the parties were still young and waiting to migrate out of Jordan.
·It is noted that the fathers of the parties had been known to each other since their days in Iraq and were acquaintances and hence there was a level of trust between the families from the beginning because of this relationship. The mutual families began to visit each other in Jordan and do activities together, as well as attend Church.
·The parties note there is no direct blood relationship between the two families as they are from different Iraqi clans.
·In 2008, the Visa Applicant and his family got their visa to go to the USA and relocated to Michigan, America. Shortly after, the Sponsor and her family got news of their visa approval to Australia, and in the same year they relocated to Victoria, Australia.
·Between 2008 and 2013 the parties stayed in contact using international telephone cards and would stay in touch regularly until the internet became more advanced and they had access to smart phones. The parties instruct that they do not have evidence of communication for that period apart from witness evidence from their respective families, given the nature of the way they communicated in that period. The nature of the relationship was very strong but again the parties were young students, living in different countries in that period.
·At the beginning of 2013, the parties started to express their romantic feelings for each other and decided to meet up to see if the physical attraction was still there and if so, get engaged. It was decided that the Sponsor would travel for a short holiday as her circumstances allowed it and she also had relatives in America aside from the Visa Applicant.
·In 2013, the Sponsor (Marleen) was about 21 years and travelled to the USA for three months to visit the Visa Applicant and his family and she also visited her maternal aunt’s daughter and distant relatives. The Sponsor instructs she stayed with the Visa Applicant for the duration of her trip in her own room within his family home. The parties did a lot of activities together, including sightseeing, shopping and visiting nature parks. Photos have been provided to the Tribunal as part of this request and a copy of the Sponsor’s visa stamp for that trip.
·After spending time together, they realised the mutual attraction was still there after all the years apart and it felt ‘natural’ to be in each other’s presence. They decided together to commit to a relationship to the exclusion of all others. The Visa Applicant and his father called the sponsor’s family to formally propose and her family consented. The parties got engaged and had a small celebration on 16 September 2013 at the Visa Applicant’s home in Michigan, America and they invited some close relatives. The parties exchanged rings and they became recognised as a couple to the exclusion of all others from that date onwards. Both families were happy about the union and plans began for the future. The parties first planned for the Visa Applicant to visit her and her family in Australia to see if he liked it before they decided on where to live their futures. After coming to Australia for a visit, the Visa Applicant instantly knew he would prefer to remain in Australia, partly because of the weather and also because the Sponsor had more relatives and family as opposed to him in America. The parties got married and lodged a partner visa application on their own which was subsequently refused.
The applicant confirmed during his oral evidence to the Tribunal that the above summary was accurate.
The Tribunal has considered all the circumstances of the relationship of the applicant and sponsor, including the matters set out in s 5F of the Act and reg. 1.15A.
Financial aspects of the relationship
The sponsor gave evidence that she is a full-time carer for her father, Mr Butrus Younan, spends up to eight hours a day caring for him and receives a Centrelink Carer Payment and Carer Allowance, averaging approximately AUD470 per week, as her father’s carer. The sponsor explained to the Tribunal the medical conditions of her father and mother that result in the sponsor having to care for her father. The Tribunal accepts this evidence.
The applicant’s evidence is that since July 2022 he has worked in his own business repairing sinking or moving foundations that affect floors, walls, doors and cause other structural damage with his main but not only client being Unipin Pty Ltd. The applicant estimated his self-employed income to be in excess of AUD100,000 per annum but he has not yet filed his first tax return as a contractor. The applicant claims he worked as an employee for a company working in this field prior to starting his own business. The applicant provided documents in the form of pay receipts as evidence of his previous employment, which the Tribunal accepts.
The applicant provided copies of bank statements for the applicant’s bank account, the sponsor’s bank account and for their joint bank account for most of the past three years. What those statements show is that the applicant’s income is paid into the joint account through the payment by clients of the applicant’s business invoices and then that income is used for the payment of some groceries and the personal interests of the applicant and is also distributed to the personal accounts of the applicant and sponsor to pay for the daily costs of living including rent, utilities, insurance and further groceries. A modest but positive balance is maintained in this account.
The bank statements for the applicant’s personal account show it has been used for groceries, household expenditure, personal grooming and some recent payments in relation to the sponsor’s ongoing IVF treatments. This account has the largest balance of the parties three bank accounts. The applicant submitted to the Tribunal this account is used as the primary savings account of the applicant and sponsor which they are spending on IVF and related treatments at present in the hope of the sponsor becoming pregnant with their first child. The Tribunal accepts this evidence.
The bank statements for the sponsor’s personal account show it is used for the receipt of the sponsor’s Centrelink benefits and the payment of bills in relation to her car, expenditure on personal items, household bills, groceries and the daily costs of living.
The sponsor gave evidence she is currently awaiting surgery due to side effects from undergoing in IVF treatment and that surgery is booked for September 2021. The applicant provided documents in support of this evidence, which the Tribunal accepts. The sponsor told the Tribunal she hopes to resume IVF treatment after the surgery and this is the main focus of their savings as a couple.
The applicant submitted the sponsor has had five rounds of treatment with the last round being in 2021 and they have spent approximately AUD30,000 to date on IVF and associated treatments and services. The applicant provided receipts from Adora Fertility for various services associated with the sponsor’s IVF treatment dated 9 June 2020, 29 June 2020, 12 October 2020, 5 November 2020, 13 November 2020, 1 June 2021, 9 October 2021, 11 May 2022 (two receipts), 1 May 2023 (two receipts), 3 May 2023 and from Melbourne IVF dated 27 May 2021 and East Melbourne Specialist Day hospital dated 4 August 2022 showing total payments of AUD15,371. The Tribunal accepts this evidence.

The applicant further submitted that he and the sponsor jointly purchased furniture for their house and provided receipts and evidence of such purchases which the Tribunal accepts. There is also financial evidence the applicant and sponsor each have their own cars which the Tribunal accepts.
The applicant also provided copies of receipts for their wedding held in Australia in June 2015 and the Tribunal accepts this evidence.
The representative submitted:
7. Please note, the parties instruct that they do not have specific rules as to who pays for what, their income is shared and split to pay whatever is needed as required, when required. The Sponsor’s personal account is used to pay for rent, grooming, gifts, eating out and shopping.
8. We are instructed that the Visa Applicant has also listed the Sponsor as his sole beneficiary on his Superannuation account whilst employed. He currently has his own business and has not been contributing towards any superannuation. The sponsor does not received superannuation as she is not employed.
The Tribunal accepts the first point in the submission above but was not provided with documents to support the second point in relation to the applicant’s superannuation and makes no finding in that regard.
The Tribunal discussed separately with the applicant and sponsor during the Tribunal hearing how they use the three bank accounts and manage their financial affairs as a couple. Their evidence in this regard was consistent but not identical with each other and was consistent with the submissions and analysis set out above.
The applicant does not claim that he and the sponsor have joint ownership of any real estate or other major assets, any joint liabilities or owe any legal obligations in respect of each other. These matters do not support or weigh against a finding that the financial aspects of the relationship of the applicant and sponsor are consistent with the applicant and sponsor being in a genuine married relationship.
The Tribunal accepts the evidence before it and finds that the applicant and sponsor have pooled their financial resources through their three bank accounts, particularly in relation to the major financial commitment of paying for ongoing IVF and related treatment for the sponsor. The Tribunal accepts that the applicant and sponsor use their joint and individual bank accounts to pay for and share day-to-day household expenditure, recognising they are a relatively young couple without children or major financial commitments, noting their intention to undertake ongoing IVF treatment and the financial commitment that will involve.
The Tribunal finds overall that the matters relating to the financial aspects of the applicant’s relationship with the sponsor support a finding that they are in a genuine married relationship.
The nature of the household
The applicant and sponsor do not have any children and do not claim to have any joint responsibility for the care and support of children. This matter is neutral in assessing whether the nature of the household of the applicant and sponsor supports a finding they are in a genuine married relationship.
The applicant submitted that from the time of the applicant’s arrival in Australia in March 2015 he lived with the sponsor at her parents’ house with the sponsor’s brother, Mr Ramy Odeish, who moved out when he became married. The applicant provided a document showing he and the sponsor rented a property in Furlong Street, Craigieburn on 20 December 2019 for 12 months and this represented the first time the applicant and sponsor established their own household. This is the same street that the sponsor’s parents live and the sponsor grew up in.
The applicant provided a document showing he and the sponsor then rented a property in Pymble Gardens Craigieburn from 19 December 2020 for 13 months to 18 January 2022. The applicant provided further documents confirming the lease of the Pymble Gardens Craigieburn property has been extended, most recently with a new lease signed on 17 July 2023 that expires on 18 June 2024. The applicant supported this evidence by providing copies of rental receipts for the property. The Tribunal accepts this evidence and finds that applicant and sponsor have lived together since the applicant first arrived in Australia and have lived in their own household since December 2019 and at the Pymble Gardens Craigieburn property since December 2020.
The applicant provided a series of utility bills addressed to either the applicant or sponsor or to both of them at their shared address. The Tribunal accepts this evidence, in the circumstances of the other evidence before the Tribunal, supports the claims of the applicant and sponsor to have established a household together.
This matter supports a finding in relation to the nature of the household of the applicant and sponsor that they are in a genuine married relationship.
In his written statement dated 1 March 2023, the applicant stated that he and the sponsor share the responsibility for housework as follows:
We help each other with the housework, and it also depends on our work schedules. Marleen is a carer, and it can be very exhausting for her. I always help Marleen with the vacuuming and washing my clothes. I do all the gardening and outdoor chores. Marleen does the majority of the cooking as I am not very good, I do the dishes or help with preparing ingredients. I help change the bed sheets and if she is tired, do whatever she needs.
The oral evidence of both the applicant and the sponsor during the Tribunal hearing was consistent with this submission with the sponsor telling the Tribunal that she loves cooking and so does most of the cooking but the applicant does most of maintenance and heavy tasks but they do much of the housework together. The applicant gave consistent evidence telling the Tribunal that he does all of the outdoor work, the sponsor and he do most of the housework together and the sponsor cooks their meals because she is the better cook. The Tribunal accepts this evidence.
The Tribunal finds that the applicant and sponsor have established a joint household and that they share the housework within their household in a manner consistent with them being in a genuine married relationship. The Tribunal accepts that the applicant and sponsor do not have joint responsibility for the care and support of any children.
The Tribunal finds overall that the matters relating to the nature of the household of the applicant and sponsor support a finding that they are in a genuine married relationship.
The social aspects of the relationship
The applicant did not provide any statutory declarations from friends or family to the Department to support his application for the Partner visa.
The applicant provided statutory declarations to the Tribunal from the following family members and a friend supporting the genuineness of his married relationship with the sponsor:
·Ms Deani Tuoma, who has been a friend of the sponsor since 2012, declared on 1 March 2023;
·Mr Jospeh Odish, who is the sponsor’s older brother, declared on 17 July 2023;
·Ms Narmeen Odish, who is the sponsor’s older sister, declared on 21 July 2023;
·Mr Jem Barkho, who describes the applicant as a nephew, declared on 21 July 2023; and
·Ms Jakleen Azeez, who describes the applicant as a nephew of her husband, declared on 21 July 2023.
The applicant also advised the Tribunal the following family and friends were available and prepared to give evidence to the Tribunal:
·Mr Yoel Naisan, the applicant’s father (from the United States of America);
·Mrs Samira Naisan, the applicant’s mother (from the United States of America);
·Mrs Najat or Najet Kyou Odish, the sponsor’s mother;
·Ms Narmeen Odish; and
·Ms Deani Tuoma.
The Tribunal did not require these witnesses to give evidence, but as noted above did take evidence from the sponsor’s brother, Mr Ramy Odeish.
The applicant provided over 200 photographs, some of which were duplicates, taken between 2013 and 2023 with the over 100 photographs provided to the Tribunal in August 2023 annotated as to the time and place taken and people in each photograph. These photographs record significant moments in the parties relationship including their September 2013 engagement in Michigan in the United States of America, their June 2015 wedding in Australia and many social events they attended with family and friends or on their own as a couple.
The applicant’s evidence is that he and the sponsor live close to the sponsor’s family in Melbourne and see each other frequently, whilst also maintaining a strong relationship with their church and their Iraqi community in Melbourne. In addition, the applicant submitted that he and the sponsor maintain frequent contact with his family in the United States of America and with friends there and in Iraq. The Tribunal accepts this evidence.
The applicant and sponsor also provided a series of statements, with the most recent from the applicant dated 1 March 2023, describing the social aspects of their married life together including attending family and community social events such as weddings, christenings, outings with family and friends and outings on their own as a couple.
The Tribunal finds that the applicant and the sponsor represent themselves to other people as being married to each other, their families and friends accept their marriage as genuine and they regularly plan and undertake joint social activities as a married couple.
The Tribunal finds that the matters relating to the social aspects of the relationship of the applicant and sponsor support a finding they are in a genuine married relationship.
The nature of the persons' commitment to each other
The evidence before the Tribunal, which it accepts, is the applicant and sponsor first met in 2006, became engaged in September 2013, became married in June 2015 and since that time have lived together, initially with the sponsor’s parents but from December 2019 on their own as a couple and at the time of this decision continue to do so.
On this basis, the Tribunal accepts that the applicant and sponsor have been in a committed relationship to the exclusion of all others for almost 10 years, have been married for over eight years, have lived together for over eight years and have lived in their own household as a married couple for over three and a half years.
The Tribunal also accepts the evidence before it that the applicant and sponsor are trying to have children together and have undertaken IVF and related medical treatment for a number of years at significant financial cost.
The representative submitted on behalf of the applicant:
29. The parties have supported each other through emotional and physical challenges during their eight-year marriage. The parties confirm the biggest challenge they have faced is their infertility issues and trying undergoing IVF treatment. The Sponsor suffered severe side effects from the medication and treatment in the last round of IVF and needs to undergo surgery on her ovaries before they can try again.
30. The Sponsor has explained verbally to our firm that Wael’s commitment to her wellbeing is one of the reasons she was drawn to him, and he has always had a caring, selfless nature. We are instructed that he is always mindful of her carer responsibilities and will do ‘little things’ such as peeling and cutting ingredients for food preparation, managing finances, keeping her hopeful when she is at her lowest as they try to have a baby.
31. The Visa Applicant in turn has instructs that the Sponsor has been a huge support to him as she helped him navigate Australian culture, finding work and encouraging him to open his own business and surprising him with gifts of clothes or perfume.
32. The parties have been in a long-standing relationship, approximately eight years from the time they officially committed to their relationship in May 2015 to date and have supported each other through health challenges and the Covid-19 pandemic. The parties invested money for the Visa Applicant to start his own business and save hard as they navigate their infertility journey. The parties have future plans to travel to America and see the Visa Applicant’s family. The visa applicant has not travelled overseas since he has been in Australia. His parents came to Australia for his wedding and also came to Australia for his sister’s wedding on 29 January 2017. He has not physically seen family since that time.
The Tribunal asked the applicant and the sponsor during the Tribunal hearing about the degree of companionship and emotional support they draw from each other. Their respective answers were similar to and consistent with the submissions above. The applicant and sponsor gave separate but spontaneous evidence of their love for each other, the emotional support and companionship they provide to each other particularly during the sponsor’s five rounds of unsuccessful IVF treatment and the applicant’s long visa application process and their ongoing commitment to each other and their relationship. Both spoke of their desire to have children together and to remain in Australia close to the sponsor’s family with the sponsor telling the Tribunal if the applicant was not granted a Partner visa and had to return to the United States of America, she would travel back with him because they cannot be apart. The Tribunal accepts their respective evidence that they are in an ongoing committed relationship together and see their relationship as a long-term one.
The Tribunal finds that the duration of the relationship of the applicant and sponsor and the time they have lived together support a finding they are in a genuine married relationship.
The Tribunal also finds that the applicant and sponsor provide each other with the companionship and degree of emotional support and that they view their relationship as a long term that is consistent with them being in a genuine married relationship.
The Tribunal finds the matters related to the nature of the parties’ commitment to each other support a finding that the applicant and sponsor are in a genuine married relationship.
Conclusion
Overall, the Tribunal is satisfied at the time of application for the Partner visa and at the time of this decision that the applicant and sponsor are married to each other under a marriage that is valid for the purposes of the Act, have a mutual commitment to a shared life as a married couple to the exclusion of others, their relationship is genuine and continuing and they have and continue to live together.
On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.
Other time of application and time of decision visa criteria
Having reviewed the evidence on the Department file and the oral and written evidence provided to the Tribunal the Tribunal is satisfied:
·The applicant is sponsored by the applicant’s spouse who has turned 18 (cl 820.211(2)(c));
·The applicant satisfies relevant Schedule 3 criteria (cl 820.211(2)(d));
·The applicant’s sponsor is not prohibited from being a sponsoring partner (cl 820.211(2B);
·The sponsor’s sponsorship of the applicant is approved and remains in force (cl 820.221(4)); and
·The limitations on approval of the sponsor’s sponsorship under regulations 1.20J, 1.20KA and 1.20KB are either met by the sponsor or do not apply in the circumstances of this review.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations; and
·cl 820.221 of Schedule 2 to the Regulations.
Michael Ison
Senior Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15A     Spouse
(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).

[2023] AATA 2964

16 August 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice