Nguyen (Migration)

Nguyen (Migration) [2023] AATA 3890 (19 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Thi To My Nguyen
REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)
CASE NUMBER:  1933733
HOME AFFAIRS REFERENCE(S):          BCC2019/2677023
MEMBER:Rachel Westaway
DATE:19 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 19 May 2023 at 6:09pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – sponsorship withdrawn – family violence claims – genuine relationship prior to cessation – financial aspects – joint account – limited evidence of shared finances – nature of the household – social aspects – extramarital affair – nature of the commitment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 820.211
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

This is an application for review of a decision made 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 applied for the visa on 23 May 2019 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate considered that the evidence provided by the applicant was not sufficient to demonstrate that they were the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Act. As the delegate was not satisfied that the applicant was in a genuine and committed spouse relationship prior to the relationship breaking down, the delegate did not assess whether the applicant met the Family Violence provisions.
The applicant appeared before the Tribunal on 19 May 2023 at 9:30am (Vic time) to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant was in a genuine and committed spousal relationship with the sponsor prior to the relationship breaking down. If this is so found, then the Tribunal can consider whether the applicant meets the Family Violence provisions under the Act.
Background
The applicant, Thi To My Nguyen, is a Vietnamese national who is 42 years old. The applicant listed one previous relationship in her application which ended in divorce on 20 July 2007. There was one child of the relationship.
The sponsor, Khan Nguyen, is an Australian citizen who was born in Vietnam and is 66 years old. The sponsor listed one previous relationship in the visa application which ended in separation on 1 April 1991. There was one child of the relationship.
The applicant claims that she first met the sponsor in Vietnam on 2 February 2014. The applicant and the sponsor entered into a mutual commitment to a shared life together to the exclusion of all others on 5 March 2019 and were married on 11 May 2019.
The Department application
The applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence)(Class BC) (Subclass 801) visa on 22 May 2019 on the grounds of being in a partner relationship with the sponsor, Khan Nguyen.
On 23 July 2019, the applicant’s appointed representative contacted the Department to advise that the applicant’s relationship with the sponsor had broken down, and that the applicant wished to be assessed under the Family Violence provisions. The email stated that the applicant would be assessed by a psychologist and a social worker in the coming weeks, and these reports would be provided to the Department as they came to hand.
On 26 July 2019, the sponsor wrote to the Department advising that he was withdrawing his sponsorship for the Partner visa application as the applicant had left the shared home on 21 July 2019 as a result of conflicts and arguments in the marriage relationship, due to what the sponsor claimed were ‘different visions in the marriage, resulting in disagreement in decision’.
On 20 August 2019, the Department wrote to the applicant via her authorised representative, inviting the applicant to comment on information received, namely, that the applicant had claimed that her relationship with the sponsor had ceased and that she had suffered family violence committed by the sponsor. The letter stated that before the Department could assess her claims of family violence, the Department must be satisfied that the applicant was the spouse or de facto partner of the sponsor prior to the cessation of the relationship. The applicant was requested to provide evidence that she was the spouse or de facto partner of the sponsor prior to the cessation of the relationship on 21 July 2019 and was given 28 days to respond in writing. The letter was resent on 21 August 2019 after the email sending it to the applicant’s representative was unsuccessful.
On 21 August 2019, a new migration agent contacted the Department on behalf requesting an extension of time to respond on the basis that the applicant’s previous migration agent was not contactable and that the new agent was very newly appointed and would require more time to collect the evidence to respond to the Department’s invitation. On 22 August 2019, the Department granted an extension of a further 28 days to respond.
On 14 October 2019, the applicant’s migration agent provided the following documents in response to the Department’s invitation to provide further information:
·Vodafone bill in joint names at the [Address 1] address – issued 5 June 2019, 5 July 2019 and 5 August 2019
·Screenshots of Whatsapp messages between the applicant and sponsor from 2019, untranslated
·Form 888 statutory declaration by Tan Thanh Nguyen dated 8 June 2019
·Form 888 statutory declaration by Thao Thi Xuan dated 26 August 2019
·Joint Westpac Bank Account statement for period 10 May 2019 to 26 July 2019
·Photographs of the applicant and sponsor’s wedding party
·Screenshots of the applicant’s Westpac bank account as evidence of paying bills of household
·NSW Registered Marriage Certificate issued on 13 May 2019
On 18 November 2019, the delegate of the Department made a decision to refuse to grant the applicant the visas. The delegate found that the applicant had not provided sufficient evidence to demonstrate that the applicant was the spouse or de facto partner of the sponsor as defined under section 5F and 5CB of the Migration Act prior to the cessation of the relationship. Therefore, the delegate found that the applicant did not meet clause 820.211(2)(a) of the Regulations. As this was not established, the Department did not go on to consider the applicant’s claims under the Family Violence provisions. As the applicant did not satisfy the requirements of clause 820.211, the delegate found that the applicant also did not meet the requirements of clause 801.221.
The Tribunal application
On 27 November 2019, the applicant applied for review of the Department’s decision with the Tribunal. The applicant provided a copy of the Department’s notification letter and decision record with her review application.
On 4 May 2023, the Tribunal wrote to the applicant via her authorised representative under s.359(2) of the Act, inviting her to provide further information to support her claims that she was in a spouse or de facto relationship up until the relationship ended, and supporting domestic/family violence evidence as required by the Regulations. The letter provided examples of the types of relationship evidence that could be provided to the Tribunal in relation to the former, as well as the evidence specified under LIN 23/026 and required by the Regulations for the latter. The applicant was provided with 14 days to provide the requested information or request an extension of time to respond. The letter stated that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking further action to obtain the information and that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 16 and 18 May 2023, the applicant’s representative provided a response to the Tribunal’s invitation to provide further information. These documents included:
Relationship evidence
·Applicant Statement dated 14 May 2023
·Joint Westpac Bank Account statement for period 10 May 2019 to 26 July 2019
·NSW Registered Marriage Certificate issued on 13 May 2019
·Chronology of events written by the applicant
·Screenshots of phone calls from the applicant to the sponsor in 2019
·Joint Vodafone bill for period 1 May 2019 to 31 May 2019
·Wedding photographs in Australia
·Photographs of the applicant and sponsor together and socially
·Text messages between the sponsor and applicant in May 2019
Family violence evidence
·Form 1410 Statutory declaration for family violence claim completed by Sandra Nguyen (Psychologist) dated 15 May 2023
·Psychological Report by Sandra Nguyen (Psychologist) dated 15 May 2023
·Form 1410 Statutory declaration for family violence completed by Linda Kenmar (Social Worker) dated 21 May 2020
·Social Worker’s Report by Linda Kenmar (Social Worker) dated 21 May 2020
·Form 1410 Statutory declaration by the applicant dated 12 May 2023
·Applicant Statement dated 14 May 2023
·Psychological Treatment Report by Huy Anh Nguyen (Psychologist) dated 15 March 2020
·Evidence of applicant’s prescription for Escitalopram 10 mg – antidepressant medication
·List of past appointments with Sandra Nguyen (Psychologist) from 2021 to 2023
·Chronology of events written by the applicant
·Text messages between the applicant and sponsor whilst fighting
Oral Evidence at Hearing
The applicant stated she first met her sponsor in February 2014 in Vietnam where she was born and lived. She visited her older cousin called Tri who was the driver for the sponsor who was visiting from Australia. The sponsor was at her cousin’s home and met the applicant and they exchanged contact details. The meeting was not intentional however the applicant claims a friendship developed and they remained in contact from 2014 to 2018 through Zalo, a messaging application. The applicant claims they communicated 2-3 times a week over several years. The applicant stated they were both proactive in calling each other.
The applicant explained that she was previously a primary school teacher for 5 years in Vietnam. She took a 1-year break and worked in a pharmaceutical company for 10 years where she was Head of Product Purchasing and Distribution.
The sponsor was a cleaner in Australia and was employed by a high rise building however he became unwell and left his employment by the time their relationship developed and she moved to Australia. She stated he relied on Centrelink payments. When asked why he was unwell she stated that he was drunk and fell over and fainted and he was taken to hospital and then developed diabetes and was unable to work. She stated that he was on oral medication for his diabetes.
The applicant outlined the sponsor’s previous relationship and details about his two children. He had a daughter in 1986 referred to as Hi and a son Bo in 1991. They lived in Australia in separate homes and she claims to have met them and been to their houses.
Hi lived in Campbelltown and his son lived in a stand alone house with his uncle on his maternal side also in Campbelltown.
Her sponsor resided in government housing and the address was listed as [Address 1].
The applicant stated that she decided to come to Australia at the end of 2018 for a holiday and see friends and also travel to Sydney to meet the sponsor. She travelled by car from Adelaide to Sydney and stayed with her friend’s daughter. She stayed for over 2 weeks and they would meet up morning and evening and the friendship developed further. She stated she visited his house the first time on arrival into Sydney. She confirmed that there was no intention to marry him at that point in time. During this visit she met his children and friends and they dined out. She returned in January 2019.
The applicant then decided to visit Australia again March 2019 and the sponsor proposed. She stated that she was not prepared to stay however the sponsor was very convincing and she told her family in Vietnam that she was remaining in Australia and they married.
The Tribunal asked the applicant whether they discussed their plans for the future and she stated that they wanted to start a family and she wanted to study to be a nail technician and the sponsor agreed that if they had children he would be a stay at home father and look after the baby.
The applicant was asked about her financial situation and how they shared finances and she explained that the applicant continued to pay rent and utility bills through his Centrelink payments and she paid for food.
She explained she had property in Vietnam that was left to her after her mother passed away. She also had access to a retirement fund that was similar to social insurance that she could access after one year of leaving her employment with the pharmaceutical company. She said that her sponsor was not aware of this as it had not started to be paid but he was aware of her assets.
The applicant explained her sponsor lived in public housing and owned a car.
The applicant stated that issues started to arise as soon as the partner visa application was lodged. She said she wanted to work to earn more income. She worked in a Vietnamese restaurant in Paramatta however she did not work there for long.
The applicant’s daughter resides in Vietnam and was born in 2000. She has just graduated with a Bachelor of Hospitality and never met the sponsor but spoke to him on video calls. She didn’t invite her daughter to the wedding as she wanted to register the marriage in Australia and then have a ceremony in Vietnam and her daughter would have been invited to this. She also wanted to have her first marriage annulled.
The Tribunal asked the applicant why she didn’t invite her daughter to Australia to meet the applicant as she had invested in two trips herself. She explained that her daughter did not want to visit as she was studying. The Tribunal explained that she would have university holidays. She said her daughter did not want to disrupt her studies however her daughter was supportive of the relationship.
The Tribunal asked the applicant why she wanted to remain in Australia and she explained she sees a psychologist here.
The Tribunal asked the applicant why her sponsor’s first relationship ended and she stated that after the birth of his son in 1991 the sponsors former partner pursued another man.
The applicant was asked about the decline in her relationship and she stated that in May 2019 the visa application was made and problems started to arise.
Her sponsor received frequent calls from a woman and would leave at all times of the day and night. She noticed the increased frequency of his absences after he submitted the visa. He would be out and get drunk and not come home. He turned his phone off and would not answer her calls. She stated that at one point in time a female picked up his phone.
She claims that a friend drove her to a lady called Ms Dung’s home and she saw her husband’s care there. He did not return that night however she confronted him about it later. Ms Dung was his former girlfriend.
She claims another time Ms Dung called him and they were at his children’s home and he took the call in the bathroom. She also stated he would no longer wear his wedding ring..
She stated that Ms Dung seemed to be the cause of the issues. She believes they would play pokies and attend clubs together. The applicant claims she obtained Ms Dungs phone number and called her and Ms Dung stated that her husband frequently spent the night together with her.
The applicant when asked if she confronted him said she was afraid of him as he would yell at her and curse at her. This occurred around May 2019. He threatened to kick her out of the house and complained he needed money and owed Ms Dung money and asked her to take out a loan for $10,000 and another time asked for $70,000 to cover his debt. He claims the first loan was to repay Ms Dung and she need the money for travel. She claims another time he tried to choke her.
She explained that after this, she took a mattress to sleep on the ground and the house was cold she could not stand the weather but did not want to sleep with him.
She stated he was kind to her when Ms Jung was overseas and he drove her and took her to work. They did household chores together and went out and he apologised to her for leaving her alone. She explained that they attended mass together. The applicant said that she loved him so much and didn’t want another broken marriage and she begged him to work on their marriage. He agreed and she knew through his actions he was remorseful but when Ms Dung returned his behaviour returned. He worked with Ms Dung to remove the visa application and to send her back to Vietnam.
She explained that there was another situation where the sponsor returned home covered in blood and with bite marks over him and a broken watch and phone. He said he was forced to have intercourse with several women on the drug ice so she tended to his wounds and paid for medication and she claims he was nice to her and they rekindled their affection and he promised not to leave her alone.
When asked about what happened to her husband she stated he had stayed out the night and encountered women using ice and demanded that he have intercourse with them. He then demanded intercourse with the applicant and she explained that she did not want to and it caused her a lot of pain.
The applicant stated that when Ms Dung returned after two weeks the relationship deteriorated again and the sponsor pressured her for money loans and said that his blood pressure would go up when he saw her.
He would come home intoxicated and yelled at her and she was afraid he would hit her and she would sit at a shopping centre and wait until he fell asleep.
When Ms Dung returned from her holiday her sponsor pressured her to go to a female friend and be a guarantor for a loan but she refused. He threatened that she had ten days to change her mind or he will have to move out.
She explained that in July 2019 the sponsor came home with a lot of cash and he said it was from people selling things however he still wanted money from the applicant. She stated by this point she decided to leave and moved out.

The applicant confirmed she has no children from the marriage with the sponsor and that the sponsor is still alive.
The applicant and her representative were offered the opportunity to provide any further detail and they confirmed they had nothing further to say.
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 or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the 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 and sponsor were married in Australia and the Tribunal is in receipt of the marriage certificate. On the evidence, the parties were 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?
Financial aspects of the relationship
The applicant provided the following evidence of the financial aspects of the relationship:
·Joint Westpac Bank Account statement for period 10 May 2019 to 26 July 2019
·Chronology of events written by the applicant
·Applicant Statement dated 14 May 2023
·Joint Vodafone bill for period 1 May 2019 to 31 May 2019
The applicant’s joint bank statement outlines three deposit for $8000, $400 and $3000 and regular withdrawals for what appears to be groceries over a ten week period. The majority of the funds were used to pay for the visa application which is listed as $7254.51. There are no Centrelink payments given to the sponsor which go into the account which would demonstrate a sharing of financial resources. Whilst the account is in joint names, it does not demonstrate that the sponsor and applicant jointly used the account or that the sponsor contributed any funds he had even if they were used to pay for rent and utilities as the applicant claims. The Tribunal accepts that the applicant and sponsor had a joint phone bill and however this alone does not support the pooling of finances to the degree expected in a spousal relationship. There is limited evidence of shared finances between the applicant and sponsor and no evidence that the applicant paid for utilities and rent as the applicant claims. Whilst the Tribunal notes that some expenses for general household items were incurred in the area the applicant claims to have lived with the sponsor there is insufficient evidence to suggest a level of sharing of finances that would be expected of a couple in a spousal relationship.
Nature of the household
The applicant provided the following evidence of the nature of the household:
·Applicant Statement dated 14 May 2023
·Joint Westpac Bank Account statement for period 10 May 2019 to 26 July 2019
·Chronology of events written by the applicant
·Joint Vodafone bill for period 1 May 2019 to 31 May 2019
The applicant has provided a bank statement and a Vodafone bill addressed in joint names to the address she claims to have lived with the sponsor. The applicant stated that at times the sponsor would assist her with household duties and they would have breakfast together and play chess. Whilst the Tribunal accepts that the applicant may have lived with the sponsor at the same address based on the evidence provided, there is minimal evidence of the applicant and sponsor establishing their marital home together. The applicant stated the sponsor would often not return and not communicate with her as to where he was. The Tribunal does not accept that this evidence supports the claims that they shared a home and household duties in the context expected of a couple in a spousal relationship.
Social aspects of the relationship
The applicant provided the following evidence of the social aspects of the relationship:
·Applicant Statement dated 14 May 2023
·Chronology of events written by the applicant
·Wedding photographs in Australia
·Photographs of the applicant and sponsor together and socially
The Tribunal accepts that the applicant met the sponsor’s children and would attend their home and had also socialised with the applicant from March to July 2019 when she claims she was married to and living with the sponsor as his wife. However, the Tribunal also notes that there is no evidence that the applicant’s own family other than her cousin who introduced them have met the sponsor. The Tribunal accepts that the applicant’s daughter was a student and did not want to travel and disrupt her studies. There is minimal evidence before the Tribunal that the applicant and sponsor presented themselves as a couple more broadly. The applicant stated that the sponsor would go out and leave her by herself. Further, the Tribunal notes that the sponsor’s former girlfriend confirmed that she and the sponsor continued their relationship and had no regard for the applicant as the sponsor’s wife. Further the applicant stated that the sponsor would not wear his wedding ring and would stay out overnight and had sexual encounters with other people. This leads the Tribunal to consider that the sponsor did not represent himself as married. The applicant also stated that the sponsor took a private call from his former girlfriend whom he was having an affair with at his children’s home when they were there for dinner. Whilst he took this call in the bathroom, the applicant was aware who he was speaking to and finds that this is further reinforcement that the sponsor did not represent himself as the spouse of the applicant.
The Tribunal finds that there is limited evidence of the social aspects of the relationship.
Nature of persons’ commitment to each other
The applicant provided the following evidence of the nature of the persons’ commitment to each other:
·Applicant Statement dated 14 May 2023
·Chronology of events written by the applicant
·NSW Registered Marriage Certificate issued on 13 May 2019
·Screenshots of phone calls from the applicant to the sponsor in 2019
·Wedding photographs in Australia
·Photographs of the applicant and sponsor together and socially
·Text messages between the sponsor and applicant in May 2019
The Tribunal is satisfied that the applicant and sponsor are known to each other and communicated with one another and are legally married. However, whilst the applicant has stated she was committed to the sponsor, there is no evidence of the sponsor’s commitment to the applicant. The evidence before the Tribunal based on the applicant’s evidence indicates that the sponsor tried to use the applicant for money and his own physical pleasure and rarely displayed kindness or consideration unless Ms Dung was not there. Whilst the applicant states that this occurred after the visa application was lodged, the Tribunal is not satisfied based on the limited evidence before it that the sponsor was ever committed to the applicant.
The applicant has stated that she was in a genuine spousal relationship with her sponsor from March 2019 up until the relationship ended in July 2019 and that this occurred due to family violence. She has provided a social worker’s report and a psychologist’s report.
Whilst the Tribunal acknowledges these statements they do not consider whether the applicant was living as the spouse of the applicant as required under the four factors specified in regulation 1.15A(3)(a)-(d) which the Tribunal must do.
The Tribunal does not accept that the evidence put forward by the applicant demonstrates that the applicant and sponsor were in a spousal relationship as specified in regulation 1.15A(3)(a)-(d) from the time she arrived in Australia.
Further, the applicant stated that the relationship started to breakdown not long after the visa application was lodged on 22 May 2019. However given the short period of time between the application and when the relationship ended, there is minimal convincing evidence to support that there was a mutual commitment to a shared life to the exclusion of all other prior to the relationship breaking down and limited documentary evidence to demonstrate the financial aspects of the relationship, the social aspects of the relationship, the fact that the couple shared a household and household responsibilities as would be expected of a married couple or indeed commitment from the sponsor to the applicant to assist the Tribunal in being satisfied that there was a spousal relationship in existence as specified in regulation 1.15A(3)(a)-(d).
The Tribunal is not satisfied that applicant was in a spousal relationship as specified in regulation 1.15A(3)(a)-(d) from the time she arrived in Australia and whilst she may have lived under the one roof, the relationship was not indicative of one that the Tribunal expects of a couple in a genuine spousal relationship. The applicant presented at hearing as genuine and disappointed her marriage to the applicant was not successful, however the limited documentary evidence and the oral evidence regarding the sponsor’s infidelity and treatment and use of the applicant indicates to the Tribunal that the sponsor was not committed to the applicant to the degree the Tribunal would expect in a spousal relationship.
Given these findings the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision.
The Tribunal is aware that the applicant has claimed that there was family violence, however the Tribunal is not satisfied that the applicant was the spouse of the sponsor as specified in regulation 1.15A(3)(a)-(d) and as such has not assessed the applicant against the Family Violence provisions.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Rachel Westaway
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 3890

19 May 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice