Nguyen (Migration)

Nguyen (Migration) [2023] AATA 547 (2 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Hao Anh Nguyen
VISA APPLICANTS:  Mrs Thi Gai Vu
Mr Van Thuy Duong
Mr Quang Anh Duong
REPRESENTATIVE:  Mr Van Ngan Nguyen (MARN: 9366614)
CASE NUMBER:  1835325
DIBP REFERENCE(S):  BCC2018/199667
MEMBER:Brygyda Maiden
DATE:2 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 02 February 2023 at 12:00pm
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – no evidence at the time of application that the parties had any joint liabilities – little evidence of the review applicant providing financial support for the secondary visa applicants – inconsistent evidence between the parties – lack of evidence demonstrating the degree of companionship and emotional support – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221
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 Immigration on 2 November 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the “Act).
The first named visa applicant (the “visa applicant”) applied for the visa on 11 January 2018 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 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 two secondary visa applicants are the sons of the visa applicant from her marriage to her first husband Van Thu Duong and are aged 25 and 22.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy clause 309.211(2) because the evidence and information provided in support of the visa application was not sufficient to demonstrate that the parties were a spousal relationship under s 5F of the Act. Because the visa applicant did not satisfy the primary criteria for the grant of the visa, both secondary applicants when assessed by the delegate for the visa subclass as the main applicant, failed to meet it.
On 27 October 2022 and again on 29 November 2022, the Tribunal wrote to the review applicant requesting further information in support of the regulation 1.15A matters and provided examples of the types of information that the review applicant could provide.
On 1 December 2018, the review applicant submitted an application for review to the Tribunal and attached a copy of the notification and decision of the Department.
On 12 December 2022, the review applicant signed an agreement to a shortened timeframe for notification of the hearing scheduled on 19 December 2022.
The review applicant appeared before the Tribunal on 19 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.
The review applicant was represented in relation to the review and the Tribunal was assisted by an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the matter should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant and the review applicant meet the definition of “spouse” in section 5F of the Act for the purposes of clauses 309.211(2) and 309.221 of Schedule 2 to the Regulations.
Are the parties in a spouse or de facto relationship?
Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen. A copy of the bio pages of the visa applicant’s Australian passport and his Certificate of Australian Citizenship which indicates that he became an Australian citizen on 23 May 1994 appear on the Department file.
‘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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
According to the visa applicant’s statement of relationship dated 10 July 2018 in the Department file, the visa applicant was previously married to another man between 6 April 2016 and divorced on 10 April 2017. A translated copy of the Social Republic of Vietnam court decision to acknowledge divorce by mutual consent of the parties confirms the divorce on 10 April 2017.
The Department file also contains a document which purports to be the sworn statement of the review applicant, which is not witnessed and is undated (“Review Applicant’s Undated Statement”). The review applicant states that he was previously married from 16 April 1990 until he was divorced on 2 November 2003. That relationship produced three daughters, Belinda 27, Vonny 20 and Chelsea 19. A copy of the Certificate of Divorce from the Family Court of Australia also appears on the Department file and confirms the date of divorce as 2 November 2003.
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The visa applicant’s statement of relationship on the Department file dated 10 July 2018 indicates that the parties had a wedding party at Vinado Restaurant in the presence of the parties’ families, which is consistent with the Review Applicant’s Undated Statement.
The review applicant gave evidence at the hearing that the parties’ wedding party had 50 guests including the review applicant’s older sister and brother-in-law. His parents did not attend as his father had suffered from a stroke and could not move around and his mother could not attend as she was caring for his father. Also, none of his daughters attended the wedding because they were studying. The Tribunal queried given that the parties wedding was in late November whether his daughters were still studying then, and the visa applicant stated that his daughters live with their mother, they were studying and doing extracurricular activities as well as working. The Tribunal made plain that it found it very strange that at the end of the year that none of his daughters came to the wedding. The review applicant only informed his children about the marriage later as they lived with his ex-wife. His ex-wife had full custody of his daughters and he was unable to make them travel and could not afford the tickets. The Tribunal accepts this evidence.
The review applicant gave evidence that both the secondary visa applicants attended the wedding. The Tribunal requested copies of the wedding photographs and the guests. The review applicant stated that all the parties’ wedding photographs had been submitted by their lawyers to the Department of Immigration. The Tribunal did not accept this indicating that there must be photographs if 50 people attended the wedding. Post hearing, the review applicant submitted a number of labelled and dated photographs which also indicated who the individuals were in the photographs. The photographs indicate the parties in wedding attire in front of a multi-tiered wedding cake, the parties together with the secondary visa applicant and other family members, the parties with family and friends and other photographs.
The Department file contains translated copy of the parties Socialist Republic of Vietnam certificate of marriage which indicates the parties’ marriage was registered on 28 November 2017. 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). However, this evidence alone does not in the Tribunal’s view demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing.
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.
Do the parties have any joint ownership of real estate or other major assets?
There is no evidence at the time of application or time of decision that the parties jointly owned any real estate or other major assets.
Do the parties have any joint liabilities?
There is no evidence at the time of application that the parties had any joint liabilities.
At the time of decision, the review applicant’s submission dated 4 November 2018 (however, the review applicant wrote to the Tribunal on 12 December 2022 and stated that he mistakenly wrote the incorrect date and it should read 4 November 2022 (the “Review Applicant’s November Statement”) indicates that at the time of decision the parties also have no joint liabilities together.
To what extent is there any pooling of financial resources?
The review applicant testified that foreigners cannot open a joint account in Vietnam, so the parties do not have a joint account.
The review applicant submitted a summary of transactions from Hai Ha Money Transfers indicating that between 15 August 2019 and 2 November 2022, the review applicant made 22 money transfers to the visa applicant between $300 to $1000 at a time, totalling $10,700. Also submitted were the following money transfer from the review applicant to the visa applicant from MoneyGram:
a.$500 on 3 July 2021;
b.$500 on 5 November 2021;
c.$300 on 18 December 2021;
d.$1000 on 16 April 2022;
e.$600 on 11 June 2022; and
f.$300 on 2 November 2022,
totalling $3,200.
The Tribunal raised the concerns that it had with some of the Money Gram money transfers. On 3 July 2021 the money transfer form identifies the parties’ relationship as “friend”. The review applicant explained that it was an older process of a worker of the money transfer company could not confirm what the workers type into the form. The Tribunal stated that it did not accept that explanation as on 5 November 2021, the relationship referred to on the money transfer is “close friend”. The Tribunal stated that it was quite strange that the review applicant would refer to his wife, this visa applicant as a “friend” or “close friend”, and from that time onwards, the Money Gram forms submitted to the Tribunal did not contain the question about the relationship between the parties.
The review applicant testified that what was most important to him was the name and address of the recipient and that is all he paid attention to, and that it was his mistake as he had not noticed those remarks. The Tribunal indicated that it was strange that the money agent would complete those details without input from the review applicant, and the Tribunal had concerns that this indicated that the parties’ relationship was not genuine. The review applicant stated that when he transfers money, he must present his driver licence and the address of the recipient so the relationship field would have been pre-completed. The Tribunal stated that that may well be the case however, in this instance, the relationship to the receiver is not the same on both forms. One is “friend” and the other is “close friend” and accordingly did not accept the explanation. The Tribunal also stated that it had only received a transaction statement for the Hai Ha money transfers and had not been provided with a copy of the forms behind the transaction statement.
After the hearing, the review applicant submitted further submissions dated 31 December 2022 repeating that he only checked the amount of money and address of the recipient and did not pay attention to the information of the relationship between sender or receiver. He stated that after the hearing he had attempted to contact Money Gram for an explanation, however, they had “…closed already and I have been unable to contact them. Accordingly, I have not been able to clarify this matter. Please consider this as my negligence.” As this explanation is substantially similar to that given at hearing, the Tribunal gives money transfers some weight, as money can be transferred to parties for reasons not attributable to parties being in a genuine and continuing relationship.
The review applicant testified that he works in the Saputo factory as a forklift driver earning $1,350 per week (although the visa applicant stated that she was aware of the review applicant’s occupation she did could not remember the name of the company but knew it was a milk production company and knew how much he earned per week). The visa applicant owns a convenience store and earns $8M to $10M Vietnamese dong per month which is roughly AUD $600 per month. The review applicant regularly sends the visa applicant $300 per month and if there is an anniversary or party, he sends $500 per month. If she needs more money, she asks him to send it. The visa applicant’s evidence was that her income was not enough to support herself and that the support of the review applicant is needed. Prior to the parties being married there was no money sent by the review applicant and the visa applicant had to budget to support herself with what she earned. The visa applicant clarified that she could support herself without the money transfers from the review applicant, but it was harder, and if the review applicant sends money through, she can spend it on clothing for the secondary visa applicants. In this regard, the Tribunal notes that the secondary visa applicants are not young children and are in their twenties. The Tribunal gives the visa applicant’s evidence about her need for the additional funds little weight.
The review applicant’s evidence was that the money transfers started right after the parties were married (the marriage was registered on 28 November 2017). The Tribunal queried about money transfers prior to August 2019 as copies of these did not appear on the Department file, and the review applicant gave oral evidence that he lost copies of those from his side. He had gone to those agencies to ask for records, but they only keep records for the year or two. The Tribunal made clear that it had only seen records since August 2019, to which the review applicant responded “okay”.
No further receipts of money transfers were submitted prior to August 2019 by the review applicant. However, consistent with the review applicant’s evidence, despite the Department file not having copies, the delegate’s decision indicates that two money transfer receipts were provided with one indicating that the visa applicant sent $400 on an unknown date and VND 3,356,056 (which at the time of decision works out to be a little over $200) on 9 May 2017. The Tribunal notes that the May money transfer occurred prior to the parties’ relationship becoming serious, and their engagement in September 2017 and in this respect finds it unusual. The Tribunal affords this little weight.
Does one person in the relationship owes any legal obligations in respect of the other?
The review applicant testified that he did not have a will and as far as he was aware, the visa applicant did not have a will either (which was confirmed by the visa applicant). In terms of his superannuation beneficiary, he had not changed it for a long time, and it could be his daughters.
The Tribunal is satisfied that no party in the relationship owes any legal obligations in respect of the other either at the time of application or time of decision.
What is the basis of any sharing of day-to-day household expenses?
At the time of application and time of decision the parties were not sharing a household together as they lived in separate countries – Australia and Vietnam and therefore would not have made many opportunities to share day-to-day household expenses. The Tribunal gives this neutral weight.
In terms of the financial aspects of the relationship, at the time of application the Tribunal is satisfied that the parties had no joint ownership of real estate or other major assets together, no joint liabilities, there was no pooling of financial resources, no evidence of one person in the relationship owing a legal obligation to the other and no basis of any sharing of day-to-day household expenses. There is little evidence of money transfers from the review applicant to the visa applicant. As the parties live in separate countries the Tribunal accepts that there may be difficulty in terms of financial aspects of the relationship and therefore the Tribunal gives neutral weight to this factor in its consideration of this review.
At the time of decision, there is no evidence that the parties had any joint ownership of real estate or other major assets, no joint liabilities, there is no evidence of any pooling of financial resources, no party in the relationship owes any legal obligations in respect of the other and no sharing of day-to-day household expenses. Since August 2019 the review applicant has regularly been transferring the visa applicant money ranging between $300 to $1000 at a time. The Tribunal has concerns that some of the money transfer forms indicate a question regarding the relationship of the recipient and in those particular forms the visa applicant was described as the review applicant’s “friend” or “close friend”. For the reasons already mentioned, the Tribunal did not accept the review applicant’s reasons for this. Given the evidence, the Tribunal is mindful that the money transfers may be suggestive of another type of relationship between the parties (for example, friends) rather than a genuine and continuing spousal relationship. However, on balance there is some evidence of the financial aspects of relationship.
Nature of the household
The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.
Is there any joint responsibility for the care and support of children?
The parties have no children together and the review applicant testified that the parties do not have plans to have children in the future, and that the parties do not have any joint responsibility for the care or support of children. This was not consistent with the visa applicant’s evidence that was that the review applicant sends money to help with the upbringing the secondary visa applicants, day-to-day expenses and if someone is sick the review applicant sends more money. The Tribunal finds that there is some evidence of some financial support of the secondary visa applicants at the time of decision. Given the Tribunal’s findings in relation to the money transfers at the time of application, the Tribunal finds that there is little evidence of the review applicant providing financial support for the secondary visa applicants.

The parties gave consistent oral evidence about the secondary visa applicants, with the older of the two studying an apprenticeship for welding and the younger doing a course for tourism and studying English. According to the visa applicant, neither of the secondary visa applicants have a part time job nor are any of them in a relationship. The Tribunal affords this neutral weight.
The review applicant’s oral evidence was that the visa applicant has never met his daughters in person, but they have met each other virtually approximately three or four times on occasions such as their birthdays or his birthdays. Because all the review applicant’s daughters were born in Australia, they have communication problems with the visa applicant so most of the time they only say hello to the visa applicant. The Tribunal affords this neutral weight.
What are the living arrangements of the persons?
At the time of application and time of decision, the parties lived in separate countries – Vietnam and Australia. Both parties gave consistent oral evidence that the review applicant currently rents a room in a house in Sunshine which he shares with the landlord. The review applicant states that he had lived there for more than two years, and prior to that, he rented a room in a house in another suburb.
The review applicant stated that the visa applicant lives together with the secondary applicant. The visa applicant’s evidence was inconsistent – she stated that she lives by herself, and the secondary visa applicants go and study - sometimes they come and go. According to the visa applicant the secondary visa applicants live in student accommodation in the institute or they live in a lodge near the school. The Tribunal expressed its concerns about the consistency of the evidence, and the visa applicant then changed her evidence to the secondary visa applicants still live with her except that they are currently studying and they stay at their accommodation with the school. The visa applicant then stated that she provides for the secondary visa applicants to study so they still live with her, and she had told the review applicant that they live with her. The Tribunal expressed its credibility concerns with her evidence.
The Tribunal at the end of the hearing again expressed its concerns about the inconsistency in the evidence regarding where the visa applicant’s children live. If the review applicant was cognisant of the secondary visa applicant’s living arrangement it would be reasonable to expect him to tell the Tribunal that the secondary visa applicants were currently living in student accommodation or near their school. In the review applicant’s post hearing submissions dated 31 December 2022, which is inconsistent again with the evidence of the parties at hearing:
“I wish to confirm that both my wife’s children [the secondary visa applicants] are currently living with my wife [the visa applicant] at home. The elder son Van Thuy DONG is currently learning to do welding. He attends class during the day and gets home in the afternoon. The younger son Quang Anh DUONG is currently learning English in Quang Ninh City. His school is rather far away from home and therefore he stays back at school whenever his classes finish late. Sometimes, he stays back at school two or three nights a week. That is why my wife told the Tribunal that Quang Anh stays at school.
Nonetheless, Quang Anh’s main residence is still at home with my wife.”
The original question put to the visa applicant by the Tribunal was: Who lives with you? Which, in the Tribunal’s vies, is a relatively straightforward question. There have now been a number of answers to this question, inconsistent evidence between the parties, and changing evidence of the visa applicant. Because of this, the Tribunal gives this negative weight. This is information that it is reasonable that parties in a genuine and continuing spousal relationship be consistent on.
Is there sharing of the responsibility of housework?
In terms of whether the parties have ever had the opportunity to share housework, the review applicant stated that he did submit some photographs of the visa applicant cooking and the review applicant helping with the dishwashing. The Tribunal accepts that because the parties live in separate countries that there are limited opportunities to share the responsibility for housework and therefore affords this matter neutral weight at the time of application and time of decision.
In terms of the nature of the household, at the time of application, there is little evidence of the joint responsibility for the care and support of children. The parties live in separate countries, namely Vietnam and Australia and as the parties do not share a residence, limited opportunities exist in which to share housework which the Tribunal has attributed neutral weight to. On balance, the Tribunal affords neutral weight to the nature of the household as the parties reside in separate countries and have spent limited time together in which to establish a household together.
At the time of decision, there is some evidence of some financial support of the secondary visa applicants. The parties continue to live in separate countries. The visa applicant gave inconsistent evidence regarding her living arrangements in respect of whether she lives alone or with the secondary visa applicants to which the Tribunal attaches credibility concerns. The review applicant’s evidence was also inconsistent with the visa applicant’s evidence in terms of who she lives with. As the parties were unable to consistently demonstrate the living arrangements of the visa applicant, the Tribunal has concerns about the genuineness of the parties’ relationship. Both parties gave consistent evidence as to the review applicant’s living arrangements. Due to the limited opportunities that the parties have to spend time together and as they reside in different countries the Tribunal accepts that there are limited opportunities to share housework. On balance, the Tribunal finds that the evidence in relation to the nature of the household does not support the parties being in a genuine and continuing relationship.
Social aspects of the relationship
The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.
Do the persons represent themselves to other people as being married to each other?
The Tribunal has already discussed the parties wedding in front of 50 guests including family and friends and gives this evidence weight.
The Department file contains:
a.part of a form 888 statutory declaration of Thi Thuy Bui (the page which is signed and dated is missing) who at that stage had known the review applicant for 10 years and is his best friend and the visa applicant for one year whom she has met every time she went to Vietnam. She knows their relationship is genuine and lasting as: “when Gai come over to Australia they would come to my house to visit and I notice that they love and care for each other.”
During the hearing, the review applicant gave evidence that Ms Bui is his friend (not his best friend) in Australia. The Tribunal raised its concerns that Ms Bui’s statement was missing the signature page on the Department file, and the Tribunal was concerned that if the visa applicant had never been to Australia before, why Ms Bui’s statutory declaration would indicate that she had. On that basis, the Tribunal queried the truth of the statutory declaration. The review applicant stated that he did not know why Ms Bui wrote those statements and considered that maybe it was due to an interpretation problem but did agree that the visa applicant had not been to Australia before.
After the hearing, the review applicant submitted a letter purporting to be from Ms Bui dated 19 December 2022 (the same date as the hearing). The letter indicates that Ms Bui was not sure whether she made the statutory declaration in support in 2017 or 2018 but indicated that it may not have been clear as English is her second language. She confirmed that she had never met the visa applicant as the visa applicant has never been to Australia and she had only spoken to her on the phone. Therefore, the last part of the statement should have read: “In the future, when Gai [the visa applicant] comes to Australia, she and Hao [the review applicant] will come to visit me at my house [because both Hao and Gai told me about it]. I notice that Hao and Gia love and care for each other, as I have spoken to both of them.” In the Tribunal’s view this correction in part is also unclear in terms of why when the visa applicant comes to Australia that the parties will visit Ms Bui as both the parties had told her about it. Additionally, the letter indicates that Ms Bui has never met the visa applicant in person which is also inconsistent with her statutory declaration which states that: “…I get to meet him wife every time I went to Vietnam.” The Tribunal has concerns that sworn evidence is being replaced by unsworn evidence and the statutory declaration, despite a language issue, gives the distinct impression that Ms Bui has met both parties, and met the visa applicant in Australia and in Vietnam. Although the Tribunal accepts that individuals may have various standards of English which may at times cause interpretation issues, given the seriousness of sworn evidence, and the potential consequences if it is incorrect and that the person giving written sworn evidence has the opportunity to revise it, the letter highlights additional issues with the statutory declaration which were not initially apparent. Accordingly, the Tribunal gives Ms Bui’s statement no weight, and has serious credibility concerns with her evidence.
b.a translated statement of Bui Huy Tien dated 10 August 2018 who is a cousin of the visa applicant (a daughter of Mr Tien’s paternal uncle). Mr Tien states that the parties were married on 18 November 2017 and he was one of the parties’ guests. He states that he has no doubts as to the genuineness of the parties’ marriage. “They are both in mature age and need of a family roof.” The Tribunal gives this a small amount of weight as it gives little indication of the nature of the parties’ relationship.
c.A copy of the visa applicant’s undated and untranslated curriculum vitae which states that the review applicant is her husband. The Tribunal gives this a small amount of weight.
On balance, at the time of application there is evidence that the parties represented themselves as being married to each other and the Tribunal gives this some weight.
The review applicant submitted a bundle of Money Grams indicating that he has made a number of money transfers to the visa applicant. However, in the Money Grams dated:
a.3 July 2021, the review applicant refers to his relationship with the visa applicant as “friend”; and
b.5 November 2021, the review applicant refers to his relationship with the visa applicant as “close friend”,
in the other full copies of money transfers dated 18 December 2021, 14 April 2022, 16 June 2022 and 2 November 2022, those forms make no mention of the relationship to the receiver, and no other full copies of Money Grams were submitted to the Tribunal. The Money Grams are not indicative of the parties representing themselves to other people as being in a married relationship. However, there is evidence in the statements of friends and family discussed below that the parties represent themselves as being in a married relationship. Weighing the evidence together at the time of decision, the Tribunal gives some weight to the parties representing themselves to others as being in a married relationship.
What is the opinion of the persons’ friends and acquaintances about the nature of the relationship?
At the time of application the statutory declarations on the Department file from Thi Thuy Bui and Bui Huy Tien provide little insight as to the nature of the parties’ relationship, and because of this and the credibility concerns with Ms Bui’s evidence, the Tribunal gives them little weight.
The review applicant submitted statements from:
a.Cong Le, dated 11 December 2022, who had at the time of the statement known the visa applicant for three years, and known the visa applicant since the parties were married, and recently met her in Vietnam whilst attending the wedding of a mutual friend. To the best of Cong Le’s knowledge the parties are in a genuine and loving relationship. The Tribunal gives this statement some weight in support of the parties representing themselves to others as being married.
b.Thuy Thi Bui, dated 11 December 2022, who has been friends with the review applicant for over 20 years and was responsible for suggesting that the review applicant visit Ha Long Bay in Vietnam which is where he met the visa applicant. To Ms Bui’s knowledge the parties have known each other since 2017 and are married and in a loving and genuine relationship. She believes the parties have found their respective soul mates. Because of the credibility concerns that the Tribunal has with Ms Bui’s evidence and the lack of specificity as to the nature of the parties’ relationship, the Tribunal gives this statement little weight.
c.Chelsea Nguyen, dated 11 December 2022 who is the review applicant’s daughter. She refers to the visa applicant as the review applicant’s “wife”, and states that before her father goes to Vietnam the review applicant asks Ms Nguyen to buy vitamins and perfume for the visa applicant. She has seen how happy and excited the review applicant is before each trip and has told her that he loves the visa applicant. She could see in the review applicant’s “eyes that this marriage/relationship brings him much joy and happiness”. Ms Nguyen has also spoken to the visa applicant on many occasions, and states that the visa applicant would be able to “look after” the review applicant and “bring him lots of happiness for the rest of his life.”
d.Vonny Nguyen, dated 11 December 2022, who is the review applicant’s daughter. To the best of her knowledge, the parties are in a genuine relationship as the review applicant has been on many trips to Vietnam to visit the visa applicant except during COVID when the review applicant phoned the visa applicant regularly. Ms Nguyen states that they went out to celebrate the review applicant’s birthday on one occasion, and the review applicant called the visa applicant so that they could chat with her. Even though Ms Nguyen’s Vietnamese is “not great” she could understand that the parties love each other.
e.Belinda Nguyen, dated 11 December 2022, who is the review applicant’s daughter. She stated that the parties married give years ago, she is happy that her dad has found happiness and that he has someone to take care of him in his old age.
At the hearing the Tribunal raised concerns about the ability of the review applicant’s daughters to give evidence about the genuineness of the parties’ relationship as they do not know the visa applicant, have not met her in person and have not seen the parties together as a couple. Additionally, the review applicant’s evidence was that his daughters have only seen the visa applicant over the phone 3 or 4 times and can only say hello due to the language barrier. In the review applicant’s post-hearing submissions, he confirms that his daughters have not met the visa applicant and have talked to her occasionally on the phone. Their statements only discuss the review applicant and that they have seen that the review applicant is happy which is why they believe that the parties’ relationship is genuine. All three of his daughters support the parties’ relationship. Although this may be the case, the review applicant’s daughter’s statements as a whole only provide only a small amount of insight as to the parties’ relationship.
At the end of the hearing the Tribunal raised issues with the evidence that had been submitted to provide support as to the nature of the parties’ relationship as the Tribunal could not glean much insight despite the number of statements provided.
Is there any basis on which the persons plan and undertake joint social activities?
The review applicant submitted a number of photographs:
a.in March 2017 of the parties at Bamboo restaurants with one of the secondary visa applicant’s and other family members of the visa applicant; at the airport with the visa applicant’s cousin;
b.August 2017 of the parties having a meal with the secondary visa applicants and other members of the visa applicant’s family; having meals with the visa applicant’s family members and one of the secondary visa applicants; at the visa applicant’s mother’s house;
c.November 2017, the parties with members of the visa applicant’s family having tea; at the review applicant’s parents house with his parents and sister;
d.in March 2018 of the parties with the review applicant’s mother in Saigon; of the parties at the airport;
e.in May 2018 of the parties with others at the review applicant’s father’s funeral;
f.in June 2019 of the parties in Vietnam in the visa applicant’s living room, bedroom, of the parties cooking together in the visa applicant’s kitchen, of the parties’ eating together, and other photographs at the visa applicant’s home; of the parties with the visa applicant’s family members at Co To Island doing various activities and having a meal;
g.in June 2019 of the parties at the Ben Thanh market, at Notre Dame Cathedral in Saigon, on Nguyen Hue walking street, at the electricity machine supermarket, at the airport together, on flight to Cat Bi Saigon, with the eldest of the secondary applicants, having a meal together with the review applicant’s family, photographs of the parties with the review applicant’s family members, with the parties together with other family members at the review applicant’s parents’ home;
h.in July 2022, the parties at Ha Long Bay, Ha Long night market, at the VinCom supermarket, Ha Long Park, together at the visa applicant’s home, sightseeing at the museum together and with family, eating at a restaurant together attending a wedding of the review applicant’s friend on 10 July 2022, having dinner with the review applicant’s family, eating with the visa applicant’s family, at the airport with both secondary visa applicants and the visa applicant’s younger brother, at the airport with other family members, sightseeing with family at the museum, with family at Ba Vong Pagoda, with friends at Ba Den Pagoda, with the review applicant’s mother in her home, eating with family at the visa applicant’s mother’s home.
The photographs indicate that the parties have socialised with both families at various locations and on numerous occasions at the time of application and time of decision. The Tribunal gives this some weight.
In terms of the things that the parties like to do together, the review applicant said go to the visa applicant’s mother’s house, siblings’ houses and mostly visit her relatives. The visa applicant’s evidence detailed the things that the parties liked to do together were cleaning the house together and visiting her mother and uncle. The Tribunal stated that it had trouble accepting that given the limited time the parties spend together, that the first thing the visa applicant would mention is to clean things up. The visa applicant was clear that the parties loved to clean things up and when they were done visit her mother and relatives. The visa applicant stated that they have a meal together, cook together, clean together and then wash dishes together. The Tribunal reiterated its concerns and again at the end of the hearing, raised credibility concerns with the visa applicant’s evidence in relation to the first thing being mentioned that the parties like to do together is cleaning, and given the limited time the parties spend together the Tribunal found that unlikely.

The parties gave consistent evidence that the things they have in common like drinking coffee, listening to music, eating seafood, and watching the news. The Tribunal gives this some weight.
In the review applicant’s post hearing submissions dated 31 December 2022, he responded in relation to inconsistencies in the parties’ common interests (which as discussed below were not inconsistent) rather than what the parties liked to do together. The review applicant stated that he wished to confirm that the parties like eating seafood, watching movies or listening to music together. The Tribunal notes that neither party at the hearing mentioned watching movies together though they both mentioned watching the news. He stated that the visa applicant is organised and wants to keep her house neat, clean, and tidy. When the parties are at home, they cook and eat together, and then clean up afterwards. As they both felt supported, both enjoyed it. The visa applicant enjoys cleanliness and she thought of the cleaning activities that the parties do together as a couple as they both liked cleaning the house. Although the visa applicant may enjoy cleaning, the Tribunal considers that given the limited time the parties spend together it is unlikely that cleaning would be an activity that the parties liked to do together, and as a result gives this explanation little weight.
In terms of the social aspects of the parties’ relationship, at the time of application there is some evidence of the parties representing themselves to others as being married to each other, little evidence as to the opinion of family and friends as to the nature of the parties’ relationship, and photographic evidence which indicates that that the parties socialise with each other and their respective families. On balance, due to the comparatively short period of the parties’ relationship up until the time of application, the Tribunal gives the social aspects some weight in support of the parties being in a genuine and continuing relationship.
At the time of decision, there is some evidence of the parties representing themselves to others as being married, but the Tribunal has concerns about the review applicant representing the visa applicant as a friend to third parties (i.e. on money transfers). Although a number of statements have been provided in support, these for the most part provide the Tribunal with limited insights as to the nature of the parties’ relationship. Numerous photographs have been submitted of the parties socialising together and with others. There is inconsistent evidence of what the parties like to do together with the visa applicant citing cleaning as her first response which the Tribunal had difficulty accepting given the limited amount of time the parties spend together. Although there is some evidence of the social aspects of the parties’ relationship this evidence does not provide convincing support for the parties being in a genuine and continuing relationship when their relationship has spanned over five years.
Nature of persons’ commitment to each other
The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long-term one.
What is the duration of the relationship?
According to the visa applicant’s statement of relationship dated 10 July 2018 in the Department file, the parties first met on 18 March 2017 in Vietnam at the family house of her cousin Bui Huu Tien at Bai Chay, Ha Long, Quang Ninh. The review applicant stated at the hearing that the parties first met on the 27 March 2017 but other than that his evidence was consistent. The Tribunal is not too concerned about the disparity in days as the month is correct and a significant amount of time has elapsed. The Review Applicant’s November Statement indicates that he proposed marriage to the visa applicant in September 2017 whilst speaking to her on the phone, the parties’ wedding ceremony and reception were held on 18 November 2017 and the parties were legally married on 28 November 2017.
At the time of application the parties had been in a relationship for approximately four months and married for almost two months. Due to the short period of the parties’ relationship, the Tribunal gives this a small amount of weight. At the time of decision, the parties have been in a serious relationship and married for over five years. The Tribunal gives this weight.
What is the length of time the parties have lived together?
At the time of application and time of decision, the parties have not lived together as they reside in separate countries. Since the parties have been married, the review applicant gave evidence that he had travelled back to Vietnam: twice in 2018, once in 2019 and once in 2022. This evidence is consistent with stamps on the review applicant’s passport submitted after the hearing. The review applicant also stated that on a big trip to Vietnam, he always stays with his own family in Ho Chi Minh city for two days. On the two trips in 2018 the review applicant stated that he stayed with the visa applicant the whole time, and in the trip in 2019 he had gone to the visa applicant’s home time and then she stayed with him in Ho Chi Minh city. Due to the COVID-19 lockdown, the review applicant did not travel to Vietnam again until July 2022 when he spent most of the trip with the review applicant and his family. The Tribunal gives this some weight.
No evidence has been submitted to the Tribunal that the parties stay together, other than the indication in the following exchange taken from the small sample of translated chat records submitted by the review applicant after the hearing, though it is unclear what the date is:
Review applicant: Honey, I’ve just woken up, now I’m going to the market to buy some food to bring to work tomorrow. Tet Festival is coming, I miss my wife so much, OK I’ll go now, I’ll call you later when I come back.
Visa applicant: Yes, I’ve just woken up as well, about to go to the market to buy ingredients to make Square Sticky Rice Cake, I also miss you so much, you haven’t been able to come back to be with me for the past few Lunar New Years
The Tribunal accepts that it may be difficult for the parties to demonstrate where the review applicant stays if he is staying with the visa applicant and his family in Vietnam and the Tribunal gives this neutral weight.
What is the degree of companionship and emotional support that the persons draw from each other?
According to the Review Applicant’s November Statement the parties first met on 20 March 2017, they spent time together for a few days. On 24 March 2017, the review applicant left to return to Ho Chi Minh City, and from that day started to talk to each other on the phone. On 3 April 2017 the review applicant returned to Australia, and they kept contact on Viber regularly. Chat records were submitted by the review applicant from December 2018 until 30 October 2022 however these were in Vietnamese but suggest that the parties are in regular contact and make voice and video calls to each other. On querying about earlier chat records the review applicant indicated that when the visa application was made the 2017 chat records were submitted. At the hearing, the Tribunal asked if the review applicant could submit chat records prior to that time, but none were submitted. Review of the decision record and Department file also do not indicate that any chat records were submitted. The Tribunal is not convinced at the time of application that the parties were in regular contact.
After the hearing, the review applicant provided the Tribunal with a small amount of extracts of translated chat records between the parties. Of note, are the following exchanges between the parties, with the first being on 6 March 2019:
Review applicant:            I want to go back to Vietnam at the beginning of May to celebrate my father’s death anniversary. [C]urrently, I am asking for permission from the factory to take leave, but it has not been approved because many people will take leave at the time. Please try to arrange your time to go to the South to celebrate by father’s death anniversary.
Visa applicant:                Darling, it’s good if you can manage to go back to organize your father’s death anniversary because you are the eldest son. If you are not allowed to take leave, then I will arrange to go to the South to take care of Dad’s anniversary
7 March 2019
Visa applicant:                Can you get permission to take leave to go back to take care of Dad’s death anniversary otherwise I will arrange to go to the South early so I can buy things early to shop and if you can go back, then on what day will you fly so I know and I can buy a ticket to go and pick you up at … [Tribunal note: translation stopped here]
22 August 2022
Visa applicant:                Darling, mum went to the hospital today and she will have surgery tomorrow
Review applicant:            OK if you need more money for mom to go to the hospital please let me know
23 August 2022
Visa applicant:                Darling, mum will have a surgery this afternoon
Review applicant:            It’s raining today, the signal reception is not good, so I can’t call you, if there is anything related to mum’s surgery please text me
Visa applicant:                OK, If you need more money for mum to go to the hospital, please let me know, and at the same time, inform me about your mother’s conditions
The brief sample of translated chat records provided by the review applicant contains a lot of discussion in relation to the visa applicant’s mother and the surgery she is having. The chat records indicate that the parties have provided each other with emotional support in relation to the review applicant’s father’s death anniversary and the visa applicant’s mother’s surgery. The Tribunal gives this weight.
The review applicant gave oral evidence that he supports the visa applicant emotionally when she sends him photographs of the death of her father. He supports her by telling her not to be sad and to rest in peace. Whenever he travels to Vietnam, the parties visit the grave of the visa applicant’s father. The review applicant testified that the visa applicant supported him when his father died, she told him that his father was aged, not to be sad and helped her with that. Consistent with this, photographs were submitted by the review applicant indicating that both parties attended the review applicant’s father’s funeral in Vietnam at the review applicant’s parents’ home in May 2018. Photographs were submitted of the parties together and with other family members and in July 2022 of the parties together with the review applicant’s family members attending the review applicant’s father’s grave.The review applicant also stated that when he calls the visa applicant, she tells him how to cook a meal, care for himself, go to the doctor regularly, cares for his health and tells him to go to bed earlier. The Tribunal gives this evidence weight.
The visa applicant stated that the review applicant provided her with emotional support by calling each other when the review applicant is sad and encouraging her. The Tribunal asked the visa applicant to provide a more specific example, and she stated that during the COVID lockdown, and she also supported him when his father passed away, she encouraged him, consoled him, told him that his father was old when he passed and told him not to be sad. Also, when the parties are sick, they support each other. However, this is not necessarily consistent with the small sample of chat records provided by the review applicant. On 24 August 2022 the following exchange occurred:
Visa applicant:                By the way, I also went to the hospital for a health check, and they said I would get the results this afternoon
Review applicant:            Ok, that’s good, whatever you do, staying healthy is the most important thing
Visa applicant:                I had the medical examination at Bach Mai Ha Noi hospital, the doctor said I had a benign cyst in my throat, so I should go to the hospital on Monday for further tests, and have a surgery on Tuesday.
and Mum will have the surgery tomorrow. I will let you know when Mum will be operated on, since they haven’t said that it will be in the morning or afternoon
Review applicant:            Yes I know, You have to look after yourself as well
Visa applicant:                I also have to try my best otherwise I don’t know what to do now, however I get benign cyst and I can consider I’m lucky
Review applicant:            I am too sleepy tonight, I’ll go to bed now and I will call you tomorrow
The Tribunal gives the visa applicant’s evidence some weight.
Do the persons see the relationship as a long-term one?
In terms of the parties’ plans for the future, the review applicant testified that he was not certain whether the visa applicant will or will not be in Australia, so he has two plans. If the visa applicants get their visas, they will need to learn English, that is the most important thing. After the first year of learning English, the visa applicant will need to work for one year and after that, the parties will consider buying a house together. For the eldest secondary visa applicant, he will also need to learn English and obtain a job and the youngest secondary visa applicant will need to learn English and do a diploma course in English. The review applicant stated that he had already made some enquiries at the Tafe College, however, there is no information available until he arrives. The Tribunal gives this some weight.
The visa applicant stated that the parties plans for the future were to be close together, because they want to be next to each other because they are getting older. The Tribunal asked if the visa applicant could be a bit more specific and she stated first that they want to be together as one family and then they need to study and find a job. On further prompting from the Tribunal as to whether was anything else about the future plans, she stated that they would buy a house when they have enough savings. She planned to sell her house in Vietnam and bring money to Australia in order to purchase a house. The Tribunal gives this some weight.
The Tribunal queried where the parties and the secondary applicant would live given the review applicant’s current living arrangements, and the visa applicant stated that the review applicant had told her not to worry and he would rent a bigger place. The Tribunal noted that it had concerns about the visa applicant’s evidence, as this had not been mentioned by the review applicant. The visa applicant repeated that the review applicant had told her not to worry and would rent a bigger place or buy a new house. The Tribunal pointed out the inconsistency in the parties’ evidence in that the review applicant has said that the visa applicant would have to come to Australia, learn English for a year, then work for a year and then consider buying a house together, to which the visa applicant answered that was correct. The Tribunal made clear that its concerns had not been addressed about where the visa applicants would live if the visa were granted and the visa applicant stated that she would live with the review applicant and where he lives, she will live with him. That may well be the case, but there are also the two secondary visa applicants to consider.
The Tribunal expressed its concerns at the end of the hearing that review applicant’s future plans did not include where the visa applicants would live given that the review applicant is currently renting one room in his landlord’s house. The review applicant’s response was that if the visa applicant were coming to Australia, he would certainly rent a bigger place or a single home or bungalow or two or three rooms as there is no way that they could squeeze into a single room. As no evidence was provided post hearing as to any steps that had been undertaken in relation to those plans and no mention was made by either party of the immediate need to move into a bigger property if the visa applicants’ visas were granted (as Tribunal considers it unlikely that the review applicant and the three visa applicants would fit into one room), it appears to the Tribunal that based on the evidence that this has not been contemplated or discussed by the parties. Given the stage where the parties’ visa review is at, the Tribunal finds that this is not indicative of the parties being in a genuine and continuing relationship, having a mutual commitment to a shared live together or living together and not separately and apart on a permanent basis.
The review applicant gave evidence that he had plans to travel back to Vietnam in February 2023 as after the Lunar New Year the ticket prices reduce. The visa applicant said that the review applicant had told her he was coming in January 2023 (post hearing the review applicant submitted an airline reservation to Vietnam, departing Melbourne on 19 February 2023 and returning on 12 March 2023). Given the hearing was in December 2022, the Tribunal expressed its surprise at the inconsistent evidence between the parties, and the visa applicant not knowing when the review applicant was coming to Vietnam. The Tribunal raised this as a concern with the parties’ evidence at the end of the hearing and indicated that it pointed to the parties’ relationship not being genuine. In the review applicant’s 31 December 2022 post hearing submissions, he stated that confusion occurred because the review applicant was using the Gregorian calendar and the visa applicant was using the Lunar calendar as she lives in Vietnam and like many other Vietnamese people living in Vietnam, she normally talks about the dates using the Lunar calendar. According to the review applicant the date of the trip being 19 February 2023 is the 29^th day of the first month of the year of the rabbit, and the first month of the lunar year is often referred to as January. The Tribunal accepts this explanation.
If the visa applicant’s visa was not granted the review applicant testified that he would save all of his holiday leave and annual leave and will keep returning to visit his wife and family in Vietnam and would need to stay in Australia until his retirement and would need to work for ten more years, save money and relocate to Vietnam to be with her. The visa applicant’s evidence was that she would be very disappointed and desperate for the case to be reconsidered, and that she misses the review applicant very much. The Tribunal further queried whether the review applicant would move to Vietnam to be with the visa applicant, and she stated that he would not be able to find a job and could only spend holidays in Vietnam. The Tribunal informed the visa applicant that the review applicant had said he needed to be in Australia for another ten years until retirement and then relocate to Vietnam to be with the visa applicant. The visa applicant seemed surprised by this and stated that it would be another ten years that the review applicant lives by himself, that no one can help him, and another ten years would be too long as the parties miss each other. It seems clear to the Tribunal that this eventuality was not discussed between the parties.
In terms of the nature of the parties’ commitment to each other, at the time of application the parties had been in a relationship for approximately four months and married for almost two months. The parties have not lived together as they reside in separate countries. No evidence of chat records has been provided at or prior to the time of application despite request from the Tribunal and there is no indication in the delegate’s decision or the Department file that chat records had been provided. There is also no evidence of the parties obtaining emotional support or the parties long term plans to indicate whether the parties see the relationship as a long term one. On balance, the nature of the parties’ commitment to each other is not indicative of the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life together or living together and not separately and apart on a permanent basis.

At the time of decision, the parties have been in a serious relationship and married for over five years, and since the parties have been married the review applicant has travelled to Vietnam four times. The parties have not lived together as they reside in separate countries. Other than oral evidence which suggests that for the most part that the review applicant stays with the visa applicant during the trips to Vietnam, the Tribunal accepts that it may be difficult for the parties to demonstrate where the review applicant stays if he is staying with the visa applicant and his family in Vietnam and the Tribunal gives this neutral weight. Chat records which were in Vietnamese were submitted from December 2018 until 30 October 2022 which indicate that the parties were in regular contact, with a selection of those chat records were translated into English and submitted to the Tribunal after the hearing. There is evidence of emotional support from the parties. The Tribunal has concerns about the parties’ long-term plans in that it appeared that the parties had not discussed or contemplated where the parties would live together with the secondary visa applicants if their visas were granted or what would occur if the visa was not granted. On balance, the Tribunal gives the nature of the parties’ relationship some weight of indicating that the parties are in a genuine and continuing relationship.
Conclusion
On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made.
As previously stated, the Tribunal is satisfied that the parties are validly married as is required by s 5F(2)(a) of the Act, however this on its own is not commensurate with a mutual commitment to a shared life or a genuine and continuing relationship.
Although the Tribunal has afforded weight of various amounts (though predominantly on the lower end) to:
a.the parties have been married and in a serious relationship for over five years at the time of decision and have had a wedding celebration in front of 50 guests;
b.the evidence of money transfers from the review applicant to the visa applicant at the time of decision (though the visa applicant is able to support herself without these transfers);
c.the evidence that the review applicant provides some financial support to the secondary review applicants;
d.the photographic evidence indicating that the parties have socialised with each other and some family members at various locations on a number of occasions;
e.the parties have things in common like drinking coffee, listening to music, eating seafood and watching the news;
f.the evidence of the parties affording each other emotional support at the time of decision;
g.the review applicant having travelled to Vietnam and seen the visa applicant; and
h.the parties’ future plans,
however, there are other matters that weigh more heavily against the relationship than those matters which weigh in favour of it (which have been discussed in further detail above). These include the:
A.    money transfers indicating that that the relationship between the parties is that of friends or close friends;
B.    credibility and inconsistency concerns with the visa applicant own evidence about her current living arrangements;
C.   inconsistency between the review applicant and the visa applicant about the visa applicant’s living arrangements;
D.   credibility and inconsistency concerns with the statements of Thi Thuy Bui;
E.    despite the number of statements submitted in support of the parties’ relationship only a small amount of evidence in those statements is in relation to the nature of the parties’ relationship despite the Tribunal raising concerns about a number of statements submitted in support of the parties’ relationship;
F.    the lack of chat records prior to December 2018;
G.   the first thing that that visa applicant stated that the parties liked to do together was clean things up (which was followed by visiting her mother and relatives);
H.   concerns about where the parties’ including the secondary visa applicants would live if the visa was granted given that the review applicant is currently living in one room in his landlord’s house; and
I.   the parties’ do not seem to have discussed any plans if the visa applicant’s visa is not granted.
For these reasons, with respect to the reg 1.15A(3) matters the Tribunal is not satisfied that on balance there is sufficient evidence at the time of application, that the parties:
a.had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5(f)(2)(b) of the Act; and
b.had a genuine and continuing relationship, as required by s 5(f)(2)(c) of the Act; and
c.lived together and did not live separately and apart on a permanent basis, as required by s 5(f)(2)(d).
The Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of decision. Therefore, the visa applicant does not meet cl 309.211 of Schedule 2 of the Regulations. Because the visa applicant does not cl 309.211, the secondary visa applicants do not meet cl 309.311.
For the reasons above, the visa applicant and secondary visa applicants do not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Brygyda Maiden
Member

Attachment - Extract from Migration Regulations 1994
1.15ASpouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day‑to‑day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long‑term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2023] AATA 547

2 February 2023

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