OOI (Migration)

OOI (Migration) [2018] AATA 1300 (5 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Hooi Ean OOI
CASE NUMBER:  1613292
DIBP REFERENCE(S):  BCC2015/1596005
MEMBER:Robert Wilson
DATE:5 January 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
·cl.820.211(2) of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations
·r.2.03A(3)

Statement made on 05 January 2018 at 4:23pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) visa – Married – Joint financial aspects – Joint bank account and credit cards – Co-habit – Share day-to-day household expenses – Named as beneficiaries on each other’s life insurance policies – Provided supporting evidence from several witnesses– Wishing to start a family together – Long term relationship
LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65,
Migration Regulations 1994 rr 1.09A, 2.03A Schedule 2 cls 820.211, 820.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 8 August 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 3 June 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied that the parties had been in a de facto relationship for 12 months prior to the date of application.
The applicant, Mrs Hooi Ean Ooi, born 21 March 1991, appeared before the Tribunal on 5 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Hak Leung Wong, (born 24 October 1986) . The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUE
The issue in the present case is whether the parties had been in a de facto relationship for 12 months prior to the date of application.
ASSESSMENT OF THE EVIDENCE
In making its assessment of this case the Tribunal has had regard to the Department’s file, the Tribunal’s file, the parties’ oral evidence at hearing, and a copy of the Department’s decision as provided by the applicant to the Tribunal prior to the hearing.
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
‘Spouse’ is defined in s.5F of the Act and ‘de facto partner’ is defined in s.5CB of the Act.
De facto partner’ is defined in s.5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3).
Regulation 1.09A(3).
(a) The financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets;
The applicant stated at the hearing that they do not have real estate. They have a joint account with the ANZ bank. Joint Bank statements have been provided. The sponsor stated that they have this account for family emergencies, but now it its purpose is changed insofar as it is for the future when they have children. Further, the sponsor indicated that there is a Virgin money account that is used to pay their car insurance. The sponsor said that the applicant is now in charge of daily groceries and bills.
The applicant bought a car with her brother-in-law. This has not been transferred to her.
The applicant and sponsor live in the sponsor’s house.
The applicant and the sponsor have bought together a bed frame, a bed ensemble, a computer table, and a TV cabinet. When they married the sponsor owned white goods and other objects. These include a washing machine, dryer, two televisions, a fridge, a display cabinet, and a mattress.
The sponsor said at the hearing that if his money is running out, the applicant will transfer money to his account and vice versa.
(ii) any joint liabilities;
They have a mortgage, so they owe money to the bank for the sponsor’s house at Rockdale.
The sponsor indicated that they have credit cards. When the applicant came to Australia the sponsor issued credit cards in both their names. A credit card was used by the applicant as she did not have a job. The sponsor said that the applicant works at a law firm. She does conveyancing. The applicant indicated that she received $1,189 fortnightly.
The sponsor is employed in customer service in a credit card company and he is paid $1,700-$1,800 fortnightly.
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments;
The applicant stated that part of pooling financial resources has been their use of the joint Bank account. They only put money in the joint account. It is a reserve, for their baby. The applicant indicated that the house has been under the sponsor’s shoulder so if they needed a new car she would pay for the car.
The sponsor stated at the hearing that he got his present car from his brother. It is only his brother’s company name. A loan from obtained from the ANZ bank to pay his brother. They transfer money on a fortnightly basis without any interest. The main purpose is to have a car. The applicant pays for this. However, the sponsor keeps doing what he did financially up to when she came to Australia permanently in May 2015 and she will do what happens after that date.
(iv) whether one person in the relationship owes any legal obligation in respect of the other
The applicant joined a Superannuation Fund on 1 August 2015 with Australian Super. It appears that her ex-employer paid money into the fund. She stated that the sponsor has superannuation from a company. She is not sure if she is the beneficiary. Subsequent to the Tribunal hearing a document was forwarded which indicates that the sponsor has a Super-Employer Plan.
The sponsor stated at the hearing that he has superannuation from his company, and he thinks his wife has superannuation from her company. He thinks that she named him as a beneficiary.
The sponsor indicated that the applicant had two life assurance policies in Malaysia but not in Australia. In both of these the sponsor is the beneficiary.
(v) The basis of any sharing of day-to-day household expenses
The applicant indicated at the hearing that they are sharing day-to-day household expenses. She buys the groceries and she cooks. She pays all the bills and sometimes he pays.
The sponsor indicated that these days the applicant pays for day-to-day household expenses. The sponsor does not like to carry cash. Alternatively both can use their credit cards. On a daily basis they don’t have a fixed structure as to who pays for day-to-day household expenses.
The Tribunal gives weight to the evidence above.
(b) the nature of the household
(i) any joint responsibility for the care and support of children
The applicant gave evidence that there is no care and support of children required.
The sponsor indicated that his brother is living in the same building. Before they came to the hearing, in the morning, they were looking for his brother’s three children. That is, the sponsor’s two nieces and a nephew. The sponsor stated that during the weekend the applicant has responsibility to look after the kids before their parents went off for the day.
(ii) the living arrangements of the persons
The living arrangements of the persons in their home unit, as described by the applicant is as follows. There are two bedrooms, an open kitchen, two toilets, lounge room and 1 car park.
The sponsor indicated that where he and the applicant live, there are two bedrooms, a lounge room, two toilets and one big balcony. There is also a living room, laundry and a kitchen and one storage place.
(iii) any sharing of the responsibility for housework
The applicant stated at the Tribunal hearing that if the sponsor stays at home they worked together. Sometimes the sponsor works on Saturdays and Sundays. If the sponsor goes to work, the applicant works herself. Normally the applicant does not work on weekends.
The sponsor indicated that he cannot cook. The applicant is the chef. The sponsor does the washing up.
The sponsor stated at the hearing that the applicant does the washing in the washing machine. Both hang the washing out on the balcony. The sponsor seldom wipes the floor. Both the applicant and sponsor do the vacuuming and the close cleaning.
The sponsor hasn’t washed the car yet. The unit has a rubbish disposal bin and the sponsor takes it outside. The sponsor stated that at home he does the installing of curtains and the range hood.
The Tribunal gives weight to the evidence above.
(c) The social aspects of the relationship
(i) whether the persons represent themselves to other people as being in a de facto relationship with each other
They provided evidence that they presented themselves as a de facto couple to family or the wider community.
(ii) the opinion of the persons friends and acquaintances about the nature of the relationship
Mr Hak Lam Wong provided a statutory declaration declared on 14 March 2016. He has an Australian passport. He wrote that the applicant’s fiance (husband) is actually his brother. From the first day they were together he has known the applicant. She previously came almost twice a year to Sydney. They now see each other at least once a week since they are just living near to each other.
The relationship will definitely be a long one, the applicant looks after the sponsor very well in every aspect the witness can tell clearly that the sponsor will have more laughs now since he met her. The witness and the couple always have a good chat whenever they meet and from the way the applicant talks about things it makes the witness truthfully believe that they are truly in love. He is glad that they met and got married. He is relieved to have her holding his hand for the rest of their lives.
Mr Hak Lam Wong provided a further statutory declaration declared on 26 April 2017. He wrote that the sponsor is his brother. They used to live together in Australia, until the sponsor bought his own unit.
The sponsor knew the applicant during one of the trips back to Malaysia to visit friends and family. Since then the applicant or the sponsor flew to Australia or Malaysia and spent two or three weeks in every six months.
The witness believes the relationship of the applicant and the sponsor is genuine. They did what a normal couple did: dating meeting each other’s parents and visiting family members.
They had planned to celebrate their wedding in Malaysia in February 2016. A lot of family members and guests were invited. About 300 guests attended.
The applicant was trying to adopt the new culture in Australia and looked for a job in a law firm very soon after arriving in order to share financial responsibility with the sponsor. They have recently begun to prepare for a baby.
The witness wrote that his sister-in-law is in a genuine relationship with the sponsor. Get along with the witnesses parents when they are in Australia.
Ms Shu Fei Wong provided a statutory declaration declared on 14 March 2016. She wrote that the applicant and the sponsor are the sister-in-law and brother-in-law. She has known her brother-in-law for more than 13 years, and she has known the applicant for more than three years since they met each other. In the past years until the present they have been seeing each other often, around three times weekly.
The witness likes the applicant’s personality and attitude from the way they chat and how they live together. She is always showing her love towards the witness’ brother in law and her care towards the witness’ children. The witness’ children always feel so excited whenever they meet her. The witness believes that she will be a very good mother and a caretaker of their family in the future. She is also a very good chef. The witness is glad that the applicant can now become one of their family members.
Ms Shu Fei Wong provided a further statutory declaration declared on 26 April 2014. She has known the sponsor for 14 years. The sponsor bought his own apartment in the same block as hers.
The witness has known the applicant for 4.5 years. As they all reside in the same apartment block, they see each other daily. The sponsor got married to the applicant in February 2016.
The relationship between the applicant and sponsor is certainly genuine. They started their sponsorship for 5 years ago. Despite having a long distance relationship over the first few years, their love for one another has definitely developed more strongly. Since then both of them are settling well, building their relationship on an even stronger foundation. They are making plans to start their family in the very near future. To the applicant had unexpected bleeding after her period and the witness and others thought it was due to pregnancy.
The witness’ three children are well connected with the applicant. She frequently plays with them, buy some toys, babysits them and they enjoy family meals together.
the applicant is also closely connected with the witness’ in-laws who frequently visit Sydney. They spent a lot of family time together, enjoying shopping trips, road trips to Port Stephens, fruit farms et cetera.
The witness wrote that they know the applicant’s family in Penang.
Ms Mary Lim Hooi See, Advocate and Solicitor, provided a written statement indicating that the applicant was working as a conveyancing staff member in a legal firm since 2010, where the witness was a practising Partner. The applicant has been a diligent and responsible girl with great attitude and work and life. The witness has always treated her like her younger sister and they soon became great fan friends where the applicant would confide in the witness with her personal life.
Sometime in year 2012, the applicant told the witness that she knew a guy, the sponsor, through Facebook.
Throughout their courtship the applicant and the sponsor have been making the best efforts to see each other as often as possible, be it in person or through Skype on a nightly basis. On the sponsors several visits back to Penang, the witness and others also had several gatherings with him.
The witness indicated that the applicant and sponsor’s love soon blossomed and sadly the applicant had to leave the law firm and began a new chapter of her life in Australia.
Mr Wong Shui Dok, and Ho Cheng Cheng, the father and mother of the sponsor wrote a letter dated 7 July 2016, ‘T0 WHOM IT MAY CONCERN.’
The witnesses wrote that to their best knowledge and memory, they realised in 2012 that the sponsor had just recognised a girl, the applicant, from Facebook. By coincidence she was working in a lawyer’s firm in Penang which is run by the brother of the sponsor’s classmate and the mother and father are clients to this firm since 2006.
During the sponsor’s visits to the witnesses’ home in Penang they had gatherings with the applicant as well as her family regarding dining and shopping et cetera within these moments they found the applicant to be in our school having compassion for her family and children. She is willing, and works hard and faithfully for her employer and her colleagues.
The witnesses encouraged the sponsor in that ‘he has a fate to’ the applicant, ‘without any regrets.’
Ms Loh Huey Cheng provided a typed statement dated 25 April 2017. She wrote that she is from Penang, Malaysia. She is the applicant’s ex-colleague and friend. She has known her as a colleague and friend since 2009. The witness is the applicant senior and they work together at the legal company.
In 2012 the applicant met the sponsor and they began their relationship through friends on social media.
After a few months the applicant announced that the sponsor is her official boyfriend. The sponsor also visited the applicant at their office during his holiday in Penang and they realise that the sponsor’s parents are their company’s clients too.
Although both of them are in a long distance relationship, they kept in contact by Skype, whatapps, weechat or Facebook to maintain their relationship. The sponsor has sent the applicant surprise gifts of flowers, presents or letters via couriers from Australia, during working hours.
Besides that, the applicant has applied for long leave to travel to Australia for visiting the sponsor. The sponsor also travelled to Penang to visit the applicant. They also have been at lunch with office colleagues during the period the sponsor was in Penang.
In February 2016 applicant and sponsor invited the witnesses family to attend the wedding dinner at Evergreen Green Hotel, Penang, where the witness witnessed the special occasion along with their families and friends.
The witness is assured that this is a real relationship between the applicant and the sponsor.
Mr Coy Jun Teh provided a typed statement dated 26 April 2017.
He has known the sponsor is a colleague and friend since 2013. He first met the sponsor approximately five years ago as he joined the company they currently working with, Les Concierges. Since 2014 the sponsor has been having the same shift as the witness and they shared some common interests together. During this period the sponsor revealed to the witness that he was in an intimate, long–distance relationship with the applicant.
The witness first met the applicant through the sponsor announcing that she was his fiancee back in 2015 when she visited Sydney. The witness has known the applicant for two years at the time of writing.
In early 2015 the applicant and sponsor announced to the witness that they will be holding their wedding ceremony in February 2016. They had given him an invitation, however, due to no to concierges could take annual leave at the same time, the witness was unable to fly to Penang, Malaysia where the wedding was held to witness a special occasion along with their families and friends.
Upon their return, the witness was again invited to attend their small gathering with friends and colleagues in Sydney. The couple and the witness live nearby each other back in 2016 they have often spent time, hanging out and dining together with the witness and his partner.
As a witness to their union, the witness personally vouchers that he is happy to say that they are a couple very much in love.
Mr Shui Dok Wong and his wife, Ho Cheng Cheng, the mother and father of the sponsor wrote a further statement dated 25 April 2017.

On 28 July 2015 under their witness, they held the marriage registration in Sydney. The applicant became their daughter-in-law and continued her stay in Sydney with the sponsor. They further planned a wedding dinner in Penang and the wedding dinner was successfully held on 23 February 2016. Over 400 guests from both parents came to the dinner with lots of blessing and wishes. These guests enjoyed it so much the applicant and sponsor got their honeymoon by travelling to Japan about a week before they returned to Sydney after the trip and back to work.
They were anxiously waiting to welcome their own baby. They have pre-paid everything for the pregnancy. But at the time the tests were not good.
Ms Jiaxi Wu, provided a typed statement dated 27 April 2017. She is a friend and colleague of the applicant, whom she first met in Sydney in 2016.
She has known the applicant and the sponsor since June 2016. The applicant is a colleague of the witness in a firm of lawyers in the MLC Centre, Martin Place, Sydney.
The witness has had dinner a few times with the applicant and her husband, the sponsor, since 2016. During the dinner they have shared their love lives before marriage and also their present happy married life.
Due to the high workload of the applicant and the witness, they sometimes worked extra hours together. Every time this happened, the sponsor always waited for the applicant downstairs in the lobby so they could go home together. Even in extreme cases. He had to wait for more than an hour yet he was never cross or complaining. Since they live in neighbouring suburbs they sometimes would take the train home together.
Even though the witness did not witness the applicant and sponsor’s marriage as it was before she first met the applicant, she has shared her love story of the sponsor and herself with the witness. Therefore she understood the relationship did not come easy as they had to have a long distance relationship before their marriage. However, their love has continued to hold strong and she understands it was very brave for the applicant to leave her hometown and their family in Penang to join with the sponsor in Sydney. She has sacrificed considerably for her marriage.
(iii) any basis on which the persons plan and undertake joint social activities;
The sponsor indicated that the applicant asks the sponsor if he would like to go to a social activity. The applicant stated the sponsor rings and asked her if she would like to come to the social activity, and asks if she has something planned.
Photos: the applicant and the sponsor provided many copies of photographs with each other, with family, and with friends. Most of these photographs have very detailed captions, and they are found in the Department’s file and the Tribunal’s file.
The couple’s plans: not to be apart again; to have children.

100. The Tribunal gives weight to the evidence above.
101. (d) the nature of the persons commitment to each other
102. (i) The duration of the relationship
103. The sponsor, then living in Australia, and the applicant then living in Malaysia, first came to know the applicant through social media, Facebook, in November 2012. They registered their relationship from the day they met on Facebook, posting all the status and photos whenever they met each other and went for travels (on a number of occasions). The engagement proposal in Malaysia was successful and they submitted the ‘intention of marriage’ form in Sydney, which was posted on Facebook, with a lot of blessings from the families and friends.
104. Further, the sponsor wrote to the Department that the applicant’s Instagram and social account contains all the photos and moments from the day they knew each other and when it turned into a relationship. All the photos are dated.
105. Furthermore, the applicant and the sponsor provided a joint statutory declaration declared at Sydney on 26 April 2017 with relevant photographs and comments confirming the length and nature of their relationship by providing this relationship statement (ff.175(a)-165(a)). This document provides information in photographic and textual form showing that the applicant and sponsor kept this long distance relationship going from November 2012. They tried to keep in touch every day by using any possible way they could such as Facetime, Whatsapp, Wechat, Facebook Messenger, phone calls, sms, etc. At other times they were together, as shown in the photographs and captions.
106. The sponsor bought the applicant flight tickets to travel from Malaysia to Australia in March 2013 for their first ‘meet up.’
107. The sponsor gave the applicant her first birthday present from him, a necklace by Thomas Sabo. The applicant met members of the sponsor’s family. After 2-3 weeks the applicant returned to Malaysia for her work. They went sightseeing around Sydney and tasted the food and drink in Australia
108. Also in 2013, they decided to meet up again, so the sponsor bought the applicant flight tickets from Malaysia to Australia again. They went to Bondi Beach and to an Italian restaurant.
109. Their third ‘meet-up’ was in February 2014. This time it was held in Penang for Chinese New Year which they celebrated together. He bought her a lavender teddy bear from Sydney as a souvenir/present. They went sightseeing to temples, day markets and to a birthday party. They also met up with her friends, and attended a birthday party one of one of her friends.
110. After celebrating and spending some family time in Malaysia the applicant and sponsor flew to Hong Kong together to join the sponsor’s friend, Thomas’ wedding dinner. The flights/hotel costs were met by the sponsor. During the trip they went to Disneyland in Hong Kong.
111. In March 2014 the sponsor could not make it back to Malaysia to celebrate her birthday, therefore he ordered a flower and cake delivery to her. They had a long video chat after she finished work that day.
112. In October 2014 there was a family trip together with the sponsor’s parents to Hong Kong. The sponsor first flew back to Penang. They were staying together in a hotel. They witnessed the largest protest ever in Hong Kong (at least for the applicant and the sponsor).
113. At this point in the relationship they wrote that they have a similar thinking that:
‘We understand each other well enough
Our relationship is matured
We both would like to live with each other for a long rather than long-distance.’

114. A further caption was, ‘without informing the applicant at all, the sponsor had decided to propose during his following trip to Penang in February 2015. It happened on the night of Valentine’s Day at an Italian restaurant in Penang. The restaurant booking was made by the applicant, however, the sponsor had arranged thousands of other things under the table with the restaurant owner in advance (after knowing where to have dinner on that night). Thanks to their service it was a great success in popping up the surprise to her, including flowers, message ‘Marry Me’
115. Later in May 2015, the sponsor flew back to Malaysia to bring the applicant back to Australia. It was quite struggling for her as she had to give up all the families, friends, and the job from where she had been living, from when she was a baby, to come to a completely new place. In order not to let her feel too much pressure in coping to live in Sydney, the sponsor supported the applicant in that she should have a short break in Sydney without the need to look for a job. He supported all the daily expenses during the time, so to make her feel comfortable.
116. On 27 July 2015 under the witness of the sponsor’s parents, and his brother’s family, and the applicant’s mother and sister, they officially registered as husband and wife under the marriage law in Sydney.
117. They had been planning to have a baby since June or July 2016, however, at the time of writing the document, it was still not successful. Once they suspected pregnancy around November and December 2016 and they went to a few different doctors and once were admitted to the Emergency room at St George Hospital due to abdominal pain. The result was negative in they were so upset. They are still trying as I would like to have their first baby before the sponsor turns 31.
118. They wrote that their objective is to keep walking on this journey for the rest of their lives. They seriously do not want to be apart again anymore.
119. (ii) the length of time during which the persons have lived together
120. The sponsor wrote in a typed statement dated 3 June 2015:
at least twice a year we will meet each other in person (for a month long each) either in Malaysia or in Australia so to maintain our relationship. We sometimes travelled together to overseas too (two times two Hong Kong, one-time to Thailand) during the period.

121. The couple’s representative submitted in writing a document dated 22 August 2016 to the Tribunal. The Tribunal has provided the following submissions as follows.
By December 2012, they have fallen in love and thus made the decision to enter into a relationship. In March 2013, they have made the effort to finally meet each other where the applicant went to Sydney, Australia to reunite with the sponsor.
The couple’s relationship has developed since then. It is submitted that they have met up with each other at least twice every year, each time for approximately one month. ... During their time together the applicant and the sponsor would live at the same residential address, as they wanted to spend their time together whenever possible, and they would share their bills and perform household chores together I also introduced each other to their friends and would attend gatherings and weddings as a couple. ...
Since then, the couple’s relationship has been genuine and continuing. On 14 February 2015, the sponsor decided to tie the knot where he proposed to the applicant and wanted the applicant to return to Australia with him.

122. Overall, the Tribunal finds that the couple met at least twice a year, each time approximately for one month, in 2013 and 2014. Further, from 16 May 2015 the applicant has been in Australia (see Movement details). The sponsor has been in Australia from 1 March 2016 – 28 July 2016; 7 August 2016 - 28 January 2017. She returned on 15 February 2017.
123. The Tribunal finds that the couple have lived together in the periods referred to above.
124. (iii) the degree of companionship and emotional support that the persons draw from each other
125. If the applicant notices when the sponsor returns to the home after work whether he has had a bad day at work. If he has, she tries to cheer him up by asking him what happened at work. She comforts him and cooks him something he likes.
126. The sponsor said that he can see if the applicant has a good state of mind. Sometimes she just tells the sponsor how she feels. She has been working on many different projects. When she came to Australia in 2015 she missed her family. She was under too much stress for a few days. Other than hiking and comforting her and taking her out of the city, he would say it was better if in a few weeks; or to change her job, or to go back to Malaysia for a short holiday. Eventually everything was solved. She looked after him, gave him food and drinks and he was quite touched every time she did that for him. At night he gave her a foot massage after her shower.
127. (iv) whether the persons see the relationship as a long-term one
128. The sponsor said at the Tribunal hearing that when he proposed to the applicant he already saw her as only one for life, and she said, yes.
129. The Tribunal gives weight to the evidence above.
130. Other issue
131. The delegate stated in his decision that:
While I am satisfied that you and your sponsor were married to each other on 27 July 2015, there is no convincing evidence that 12 months prior to the application lodgement, you saw the relationship as a long-term one or that you had a commitment to a shared life together.
132. The Tribunal finds that the time of application is 3 June 2015, and twelve months prior is 3 June 2014.
133. The Tribunal finds it clear on the evidence that on 3 June 2014, the applicant and sponsor saw their relationship as a long-term one and they had a commitment to a shared life together.
134. The delegate may have been referring to the following:
The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: r.2.03A(3).
135. At the time referred to above, the 12 month period ending immediately before the date of the application, that is, 3 June 2014, the Tribunal finds on the evidence that the applicant and the sponsor were in a de facto relationship. r.2.03A(3) is satisfied.
136. The applicant and the sponsor referred to relevant evidence 12 months prior to the application lodgement, wherein they presented themselves as a de facto couple to family or the wider community, they undertook a regular joint social activities, they took holidays or short breaks together, and had attended significant events together. This was recorded and accessed on the social media.
FURTHER FINDINGS
137. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.
138. Are the parties validly married?
139. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.
140. The parties cannot meet s.5F at the time of application as they were not married until after the time of application. One has to apply s.5CB and consider whether they were de facto at the time of application. The Tribunal has considered the requirements of s.5CB and r.1.09A as at the time of application, 3 June 2015, and is satisfied they were in a de facto relationship at that time.
141. The applicant and the sponsor have provided a New South Wales Marriage Certificate dated 27 July 2015 showing they were married on 27 July 2015.
142. 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).
143. The Tribunal finds from all the evidence, the parties are married to each other under a marriage which is valid for the purposes of the Act, and at the time of decision, the parties meet s.5F(2)(a).
144. The Tribunal is satisfied that at the time of decision, the applicant and the sponsoring partner have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing. Therefore the requirements of s.5F(2)(b) and s.5F(2)(c) have been met.
145. Additionally, the Tribunal is satisfied that at the time of decision the applicant and the sponsoring partner live together on a permanent basis. Accordingly, they meet the requirements of s.5F(2)(d) for a married relationship.
146. For these reasons the Tribunal finds that at the time of decision the applicant and the sponsoring partner are in a married relationship within the meaning of s.5F(2) and therefore satisfy the definition of ‘spouse’ contained in s.5F of the Act.
147. The Tribunal is satisfied that at the time of decision the applicant was the spouse of the person who is an Australian citizen, and that the applicant was sponsored by that person. The Tribunal finds that there is no evidence before it which indicates that the sponsor was prohibited from being a sponsoring partner under cl.820.211(2B).
148. Accordingly the applicant meets the requirements of cl.820.211(2)(a) and (c).
149. For these reasons, the Tribunal is satisfied that at the time of application the applicant meets the requirements of cl.820.211(2).
150. Further, as the applicant continues to meet the criteria in cl.820.211(2), the applicant therefore also meets cl.820.221 at the time of decision.
151. Therefore, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 820 visa.
152. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
153. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
·cl.820.211(2) of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations.

r.2.03A(3)

Robert Wilson
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
©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
©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).

[2018] AATA 1300

5 January 2018

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