Oem (Migration)

[2021] AATA 5676

Oem (Migration) [2021] AATA 5676 (13 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Lay Oem
Salim Choeung
Seak Aun Choeung

CASE NUMBER:  1806824

DIBP REFERENCE(S):  CLF2017/71362 CLF2018/43406

MEMBER:T. Quinn

DATE:13 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.

Statement made on 13 June 2021 at 5:14pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – no evidence of any joint ownership of real estate or other major assets or any joint liabilities – degree of companionship and emotional support that they draw from each other is limited – not a genuine spousal relationship –– applicants do not live together – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 5, 65, 338
Migration Regulations 1994, rr 1.03, 1.12, 1.15, Schedule 2, cls 801.211, 801.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 February 2018 to refuse to grant the visa applicants Partner (Residence) (Class BS) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The first named visa applicant (‘the visa applicant’) applied for the visa on 9 July 2013 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). 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 second and third named visa applicants are the first named visa applicant’s sons from a previous marriage (aged 26 and 24 years respectively and herein after referred to as ‘Mr Salim’ and ‘Mr Seak’ respectively).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy clause 801.211 of the Regulations because the delegate was not satisfied that the review and visa applicants (‘the applicants’) were in a spousal relationship as defined by section 5F of the Act (‘the delegate’s decision’).

4. On 14 March 2018, the applicants applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. The applicants and the sponsor appeared before the Tribunal via telephone on 9 June 2021 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the English and Khmer languages. 

6. The applicants were represented in relation to the review by their registered migration agent.

7. It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant(s), in as much detail as necessary to enable the decision maker to properly consider the case that is being put.[1]

   [1]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.

8. The Tribunal has proceeded to a decision having regard to all the information before it, including the material and evidence provided by the applicant(s) on the day of the hearing.

9. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case.  In reaching its decision, the Tribunal has had regard to:

   a.the oral evidence of the applicants and the sponsor given at the hearing;

   b.the oral submissions of Mr Bunlay, the applicants’ migration agent, at hearing;

   c.all material filed by or on behalf of the applicant; and

   d.other relevant documents on the Tribunal and Department files.

   The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.

   STATUTORY AND LEGAL FRAMEWORK

10. The issue in this case is whether the applicants are in a spousal relationship as defined by section 5F of the Act.

11. Clauses 801.211(2) and 801.221 of the Regulations 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 sponsor, Mr Ny Phith (‘Mr Phith’), who is a Cambodian born Australian Citizen. The Tribunal notes that a copy of Mr Phith’s Australian Citizenship Certificate is on the Tribunal file. Based on the information before it, the Tribunal is satisfied that he is an Australian citizen.

12. ‘Spouse’ is defined in section 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. 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.[2] 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 the sponsor’s household and their commitment to each other as set out in clause 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[3] 

    [2] Section 5F(2)(aa)-(d).

    [3]         He v MIBP [2017] FCAFC 206.

13. The Tribunal is therefore bound to consider and, to the extent relevant, apply the matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) to the applicants’ case. Accordingly, the Tribunal has carefully considered these matters in relation to the material and evidence before it. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.

14. Compliance with the prescribed criteria turns on the Tribunal’s satisfaction as to whether or not the criteria have been met and not on the objective existence of that fact.[4]  In determining whether it is so satisfied, the Tribunal is not required to uncritically accept any or all of the claims  made by the applicants and it has not done so.  A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.[5]

    [4]         Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

    [5]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

15. If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[6]

    [6]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].

16. It is for the applicants, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[7]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [7]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].

    Valid marriage

17. If the applicants are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The applicants have filed a copy of their Marriage Certificate with the Tribunal which indicates they were married on 28 May 2013 which is consistent with their oral evidence.  The applicants and Mr Phith all gave evidence that Ms Oem and Mr Phith were married in Noble Park.  However, the Certificate of Marriage on the Department file states they were married at ’23 Janelaine Court, Sorrento, Victoria’[8] whereas the Registered Marriage Certificate states that the marriage took place at ’23 Janelaine Court, Springvale South’.[9] The Tribunal is very puzzled by this. However, the latter Marriage Certificate appears to be an authentic documents of the Registry of Births, Deaths and Marriages of Victoria and it appears the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a). The applicants’ migration agent clarified in oral submissions at hearing that the applicants and Mr Phith all gave consistent evidence about the Noble Park location as that is where the reception occurred (at their family home). The Tribunal still has reservations about this submission, it may explain Mr Salim’s and Mr Seak’s memories, but one would expect the actual bride and groom to remember the location that their marriage vows took place.

    [8]         See page 60 of the Department file.

    [9]           See Joint Relationship Statement, “LO-07” filed with the Tribunal on 12 March 2020.

    Evidence Generally

18. Although many aspects of the applicants’ evidence were consistent, the evidence taken as a whole suggested to the Tribunal that the marriage was opportunistic rather than genuine.

    Financial aspects of the Relationship

19. The applicants have filed corroborating documents, consistent with their submissions, indicating that the first applicant, Ms Oem, was working as a harvest labourer onshore but was stood down in April 2020 due the COVID19 Pandemic.  Mr Phith has been receiving job seeker payments of AUD720-835 per fortnight.  All three applicants and Mr Phith gave oral evidence at hearing that Mr Salim and Mr Seak are working full time at factories and helping to support the family financially.  They have filed wage documents indicating that they are earning AUD42,387 and AUD45,119 per annum respectively.  The applicants have also filed bank statements which include joint accounts suggesting they pool and share their funds.  However, all household bills appear to be in Mr Phith’s name while the rent payments appear to be being made solely by Ms Oem.  Both Mr Phith and Ms Oem gave evidence that they only needed to put one name down for these financial responsibilities in response to questions about this.  The Tribunal recognises that this still constitutes evidence of sharing financial resources and responsibility for outgoings.

20. In one of the parties’ joint accounts bank statements, the transaction history showed a number of large transfers and withdrawals of AUD1,700-2,000.[10]  At hearing Ms Oem said this money was from her wages which appears accurate from perusal of the bank statements but she did not explain why there were large withdrawals.  Mr Phith’s evidence about these transfers and withdrawals was also that it related to Ms Oem’s income saying that they saved money and just deposited it and he withdrew it if he saw it.  The Tribunal is puzzled by this evidence and has concerns about whether there may be some behaviour in relation to the parties’ finances which they are not being forthright about.

    [10]         See Joint Relationship Statement, “LO-04” filed 12 March 2020.

21. The applicants have filed several bills and receipts as well as invoices for heaters, convection ovens and a chest freezer.  Ms Oem has also supplied tax documents listing Mr Phith as her spouse.  Ms Oem and Mr Phith have both filed letters sent to their employers seeking that their salary be paid into their jointly held account.

22. Ms Oem and Mr Phith have previously filed statutory declarations with the Department in 2013 that they were planning to save to buy a house in the near future.  It is now eight years later, and they have not done so.  The Tribunal enquired about this and they both said they are too old now but did not offer any further explanation.  Ms Oem added that she will ‘rely on children to buy house’.

23. The Tribunal accepts that Ms Oem and Mr Phith appear to be pooling their limited financial resources and share responsibility for financial commitments.  The Tribunal finds no evidence of any joint ownership of real estate or other major assets or any joint liabilities.  There is no evidence before the Tribunal that the parties owe any legal obligation in respect of the other. 

24. The Tribunal accords some weight to the financial aspects of the relationship.

    Nature of the Household

25. Ms Oem and Mr Phith have made consistent statements and given consistent evidence that they share household tasks with Ms Oem undertaking most of the housework and Mr Phith mowing the lawn and undertaking all handyman requirements.  They have filed a number of photos of them doing various household related activities together.

26. However, the evidence is also that Mr Phith moved back to Cambodia for twenty fourth months after the applicants’ Partner (Temporary) (Class UK) (Sublcass 820) visas were granted in July 2013.  The Tribunal is deeply troubled by this behaviour.  It seems unusual that a newly married couple would then decide to live separately and apart for a period of two years less so soon after their marriage.  Ms Oem and Mr Phith both gave evidence at hearing that Mr Phith went to Cambodia because his sister was struggling financially, and he went to help on her farm and look after her.  The Tribunal remained troubled because one would expect that this is something a genuine couple would consider doing together.  Ms Oem said she did not go with Mr Phith because ‘he just want to go there to help his relatives’ and Mr Phith said ‘I just go to help relative there.  She [Ms Oem] has children here and no body to look after them’.  The Tribunal accepts Mr Phith’s evidence to some extent in relation to Ms Oem’s responsibilities to her sons but is still troubled by this history.  Ms Oem and Mr Phith both gave evidence that they spoke on the telephone daily during this time but there has been no phone records or other evidence supplied to corroborate these statements. 

27. To exacerbate the issue set out in the preceding paragraph, Mr Phith wrote the wrong residential address on his incoming passenger card in April 2017.  The Tribunal wrote to the applicants inviting them to comment on unfavourable information that did not support their claims of being in a genuine relationship on 11 October 2017 which included the information contained in Mr Phith’s incoming passenger card in April 2017.  No response was received.  Mr Phith has filed documents with this Tribunal stating that he does not speak, read or write English and that he simply handed over his drivers licence for completion of his incoming passenger card by his agent and his licence had his previous residential address on it.  He has filed a copy of his driver’s licence showing his previous residential address which accords with what he wrote on his incoming passenger card.

28. The evidence given at hearing in relation to the dynamics between Ms Oem’s sons and Mr Phith was sparse.  There are several photos with all four individuals together, sharing meals, undertaking activities together and/or celebrating religious events together.  They all appear happy in these photos.  The evidence was consistent that although Mr Salim and Mr Seak are 26 and 24 years of age now, they continue to live at home because they have no found wives yet.

29. Tribunal accords limited weight to the household aspects of the relationship in the circumstances.

    Social Aspects of the Relationship

30. Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

31. Ms Oem and Mr Phith both gave evidence at hearing that they exchanged rings at their wedding.  However, there was some confusion about the wearing of the rings.  Ms Oem said she wears her ring and that Mr Phith wears his ring.  The Tribunal put to her that she was not being forthright with the Tribunal as neither of them are wearing a wedding ring in any of the photos they have supplied to the Tribunal.  Ms Oem then said ‘oh.  I forgot to wear it’.  Mr Phith, however, said he had lost the photo of their ring exchange and that Ms Oem wears her ring, but he sold his.  This was significantly different evidence, particularly in relation to Mr Phith’s ring – it seems to the Tribunal that a spouse selling their ring would be something that the other spouse would be aware of and Ms Oem did not appear to be aware of this.  In fact, she gave evidence that he wears his ring.  This is very troubling in relation to credibility.  When the Tribunal put to Mr Phith that neither of them are wearing rings in any of the photos, they have supplied to the Tribunal he appeared to be evasive and said ‘celebrant. Yes, we exchange rings’ which did not answer the question put to him.

32. Ms Oem and Mr Phith are living in Australia where it is common knowledge that the most popular practice is that married persons wear a ring on their ring finger.  It troubles the Tribunal that they are not representing themselves as being married in this way in the circumstances. 

33. All four individuals gave consistent evidence at hearing that there were 30 people at the wedding which included Mr Phith’s four children from a previous relationship.  It seems peculiar to the Tribunal that they could remember this yet not recall where the wedding vows actually took place.  The Tribunal refers to and repeats the concerns set out in paragraph 17 above.

34. The asked whether Ms Oem had met Mr Phith’s children and she said she had but could not recall how old any of them were.  This puzzles the Tribunal.

35. The parties have filed statements from friends and relatives in support of their application.  These are contained in the Department and Tribunal file and the Tribunal does not propose to set them out ad verbatim here.  These statutory declarations include statements that Ms Oem and Mr Phith are a ‘happy couple and family’, that they share household chores, that they take care of each other,, that they share a bedroom and that Ms Oem is a good mother and wife.  On the whole, the Tribunal finds these statutory declarations generic and general in nature and gives some, but minimal, weight to them in the circumstances.

36. The applicants have supplied many photographs to the Tribunal from their time together.  These include photos depicting the applicants having meals together alone and with others including at special events such as parties, their wedding day, photos with Ms Oem’s children, household photos and photos engaging in religious, tourism and camping activities.

37. Many of the photos provided to the Tribunal appear affected and unnatural.  It seemed that they may have been taken to create a paper-trail of evidence to demonstrate a relationship which raises concerns for the Tribunal about the true nature of the applicants’ intentions in seeking this visa. 

1. Ms Oem and Mr Phith gave consistent evidence that they travelled to Cambodia together in 2018.  However, when asked if they had travelled to Cambodia together apart from that, they both responded in the negative.  Yet, there are documents in the Department and Tribunal file suggesting that they spent time together in Cambodia in 2017.[11]  Whilst the Tribunal acknowledges that their passport documents indicate that they did not travel together to Cambodia, they were both present in that country at the same time from 19 March 2017- 22 April 2017 when they departed Cambodia on the same day.  It raises concerns for the Tribunal about the credibility of their evidence if they do not recall spending time together in Cambodia in 2017.  The applicants’ migration agent made submissions about their limited education and the Tribunal does accept that it is possible they did not properly understand this question but is still concerned that they did not give evidence consistent with previous submissions made to the Department.

   [11]         See Joint Relationship Statement, “LO-01” filed with the Tribunal on 12 March 2020.

2. Ms Oem and Mr Phith both knew about their spouse’s siblings and parents and the countries in which they reside.

3. The Tribunal attaches some weight to the social aspects of the relationship.

   Nature of the applicants’ commitment to each other

4. The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.

5. The Tribunal acknowledges that Ms Oem and Mr Phith have now been married for more than eight years and that for six of these years the documents suggest they have lived together as a family with Ms Oem’s two sons, the second and third applicants. 

6. Ms Oem and Mr Phith gave consistent evidence about their religious beliefs and practices, their hobbies, and their drinking and smoking habits.  They have both filed written submissions saying that they are a happy family and wish to live together for the rest of their lives.[12]  At the end of their evidence at hearing, Mr Phith said ‘please help my wife to be a permanent resident as soon as possible’.  It appeared that Ms Oem may have overheard this evidence as when she returned to the phone call she also repeated these sentiments (having already given her evidence and been asked if she had more to say to which she said she did not).  When asked if they had any further comments at the end of their evidence, Mr Salim and Mr Seak both said they want to have the right to be eligible to buy a house.  Mr Seak added that he wanted the same rights as other Australian citizens.  The Tribunal is aware that the applicants and Mr Phith are likely to be focussed on the outcome of becoming permanent residents but it perplexes the Tribunal that given the opportunity to give further evidence at the end of the hearing, none of these individuals talked about the nature of the marriage and their commitment to each other.

   [12]See Joint Relationship Statement, “LO-01” filed with the Tribunal on 12 March 2020 and delegate’s decision.

7. Ms Oem and Mr Phith gave consistent evidence that Mr Phith gives Ms Oem money for special occasions such as birthdays and Christmas.  However, when asked if Ms Oem gives Mr Phith’s gifts on such occasions, Ms Oem said ‘I don’t know what I give him’ but Mr Phith said Ms Oem gives him money or a shirt or a pen.  Mr Salim said his stepfather gave his mother money and some flowers.  Mr Seak said Mr Phith gives his mother gifts ‘most of the time’ and his mother gives Mr Phith gifts ‘sometimes as well’ but did not specify what the gifts were.  Overall, the Tribunal was somewhat troubled by this evidence.

8. The Tribunal acknowledges the parties have now been married for over eight years and appear to have been living in the same residence for six years but considers the evidence before it in relation to the degree of companionship and emotional support that they draw from each other is limited.  The Tribunal places some weight in favour of the applicants in relation to this factor.  However, the Tribunal does not consider the evidence before it is sufficient to satisfy it that the emotional support and companionship between the applicants is to the degree one would expect of parties to a marriage of over eight years.

   Other Matters

   Application of Mr Salim and Mr Seak – ‘Member of the Family Unit’

9. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides that ‘member of the family unit’ has the meaning set out in regulation 1.12. The definition in regulation 1.12 applies for the purposes of both the Act and the Regulations.

10. The definition of ‘member of the family unit’ sets an upper limit of 23 years for children or stepchildren who are dependent (unless they are incapacitated for work).[13]  Under regulation 1.12A child or step child is a member of the family unit of another person (the family head) if they are: not engaged or married; either under 18 years old, or aged 18-22 and dependent on the family head (or the family head’s partner), or has turned 23 but is wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions.

    [13]        See Migration Legislation Amendment (2016 Measures No 4) Regulation 2016 (Cth).

11. Mr Salim and Mr Seak are the children of Ms Oem and stepchildren of Mr Phith pursuant to section 5CA of the Act and regulation 1.03.

12. ‘Dependent child’ as defined in regulation 1.03 and includes minors under the age of 18 as well as children over the age of 18 who are ‘dependent’ on their parent(s) or are incapacitated for work due to the total or partial loss of bodily or mental functions.  ‘Dependent’ is defined in regulation 1.05A and essentially means reliant for financial support to meet basic needs for food, clothing, and shelter.

13. The evidence given at hearing was that Mr Salim and Mr Seak are both working full time, in good health and helping to support the household financially. They are 26 and 24 years of age respectively. Due to their age, the only way in which they could meet the requirements of the Act and Regulations would be if they were incapacitated for work due to loss of bodily or mental functions. This is clearly not the case and their applications must necessarily fail independently of their mother’s application.

    CONCLUSIONS

14. There are hundreds of pages of documents before the Tribunal.  The Tribunal has read and carefully considered each of these, although they may not all be referred to in the written decision herein.  The Tribunal has assessed the evidence before it.  The Tribunal accepts that Ms Oem and Mr Phith have known each other for over eight years now and live together with Ms Oem’s children, the second and third applicants. 

15. The Tribunal has carefully considered all of the evidence before it.  Having regard to all of the circumstances of the relationship and the evidence taken as a whole, the Tribunal cannot be satisfied that when the application was made and at the time of this decision, the applicants have a mutual commitment to a shared life to the exclusion of others or that their relationship is genuine and continuing.  At the time of the application, based on the evidence before the Tribunal, the Tribunal considers the applicants do not live together, or not separately and apart, on a permanent basis.

16. On the basis of the above the Tribunal is not satisfied that the requirements of section 5F(2) are met at the time the visa application was made or at the time of this decision.

17. Therefore, the first named applicant does not meet clause 809.211 of the Regulations.

18. Given paragraphs 46-50 above, the second and third applicants do not meet the criteria of section 5(1) of the Act. However, their applications would also fail in any case because the primary application has failed, and they are secondary applicants to that application.

19. For the reasons above, the applicants do not satisfy the criteria for the grant of the visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.

    T. Quinn
    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).