Prabhjot (Migration) - [2025] ARTA 139

PRABHJOT (MIGRATION) [2025] ARTA 139 (12 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:  Mrs Prabhjot
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2208774
Tribunal:General Member B Maiden

Place: Melbourne
Date: 12 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 100 (Partner) visa:
·cl 100.221(2) of Schedule 2 to the Regulations.

STATEMENT MADE ON 12 FEBRUARY 2025 AT 8:51AM
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 – have a child together – a strong indicator of the parties being in a genuine and continuing relationship – had been living with the sponsor since arriving in Australia – satisfied that the requirements of s 5F(2) of the Act are met – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 348
MIGRATION REGULATIONS 1994, R 1.15, SCHEDULE 2, CL 100.221
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (“AAT”) became the Administrative Review Tribunal (“the Tribunal”). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (“the Transitional Act”), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Section 348A(1) of the Act states that the “Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or reviewable protection decision for the purposes of the ART Act.” [1] Accordingly, the Respondent did not appear so there was no contradictor present.
[1] ART Act is the Administrative Review Tribunal Act 2024 (Cth).
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 June 2022 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicant, an Indian national, applied for the visa on 21 August 2019 on the basis of her relationship with Mr Dharam Paul (her “sponsor”). At that time, Class BC contained one subclass: Subclass 100 (Partner). The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant.
The delegate, in the decision that the applicant is seeking review of, indicated that the applicant was granted a Partner (Provisional) (class UK) (Subclass 309) visa on 11 February 2021. Department records indicate that the applicant arrived in Australia on 26 November 2021. In this case, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 100.221(2) as the delegate “had no information before me which demonstrates that you have continued to be the spouse or de facto partner of the sponsoring partner.”
The applicant applied to the AAT for review on 16 June 2022, and attached a copy of the notification and decision from the Department.
The applicant appeared before the Tribunal on 5 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and evidence via the telephone from from Mr Kuljeet Singh, Mr Amrinder Sandu and the applicant’s brother Mr Karan Bhumbla.
The applicant was represented in relation to the review and the Tribunal afforded the applicant additional time post hearing to submit documents, and accordingly, the applicant submitted additional documents post hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the spouse as defined in s 5F of the sponsor.
Are the parties in a spouse or de facto relationship?
Clause 100.221 of Schedule 2 to the Regulations requires that the applicant meets one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.
In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term. A copy of the bio pages of the sponsor’s Australian passport appears on the Department file as well as a copy of his Australian citizenship certificate.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant submitted a copy of the parties’ form of extract from the Marriage Register under Punjab Compulsory Registration of Marriage Act 2021 showing that the parties’ marriage was solemnised on 23 January 2019 and registered on 6 March 2019. On the evidence, the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
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.
(a) Do the parties have any joint ownership of real estate or other major assets? and
(b) Do the parties have any joint liabilities?
The representative’s undated submissions under the cover of an e-mail dated 7 March 2024 (the “March Submissions”) state that prior to the applicant coming to Australia, the sponsor had already purchased a property at Alberfeldie Drive, Truganina in his name.
The applicant told the Tribunal that the parties neither have any joint ownership of real estate or major assets together nor any joint liabilities together. There is no evidence before the Tribunal that the parties have any joint ownership of real estate or other major assets or any joint liabilities together.
(c) What is the extent of any pooling of financial resources, especially in relation to major financial commitments?
The March Submissions say that the applicant has not worked since her arrival in Australia, and the sponsor supports both her and the parties’ son. As the sponsor is the only party earning an income, expenses are paid from his personal account, and he transfers funds into the joint account for groceries and household items. This is consistent with the oral evidence from both parties at the hearing. The parties were also consistent in their evidence that the applicant was able to access and utilise funds from the sponsor’s account without his permission.
The applicant submitted the following transaction listings for the parties’ joint NAB account:
a.for a one day period on 10 August 2020 which shows one deposit in the amount of $500.
b.for a one day on 30 January 2024 which shows a deposit that day of $2,000 and an account balance of $2,051.18.
c.from 16 August 2024 until 15 January 2025. It is not clear from the information in the transaction listing whether the account is used for household expenses as it is not clear what the debits from the account are for. The only income which appears to be credited to the account is the family allowance pension. The applicant told the Tribunal that the only income that came into the joint account was the sponsor’s government family allowance payment. She did not contribute any amounts to the joint account as she is not working.
Although the Tribunal accepts that the parties have a joint account, as the applicant is not working, and is entirely supported by the sponsor, she has no income to pool. The Tribunal does accept that that the sponsor shares his financial resources with the applicant and affords this some weight.
(d) Does one person in the relationship owe any legal obligation in respect of the other?
There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other.
(e) What is the basis of any sharing of day-to-day household expenses?
The applicant submitted:
a.Energy Australia electricity accounts due on 20 December 2022 and 19 February 2024 made out to both parties;
b.an Energy Australia gas account made out to the sponsor due on 11 November 2022;
c.Energy Australia gas accounts made out to both parties due on 20 December 2022, 6 January 2023, 16 May 2023, 11 September 2023, 6 November 2023, 5 September 2004 and 7 January 2025; and
d.a screen print from Ambulance Victoria showing the parties and their child as family members from 6 January 2023 and expiring on 5 January 2024.
The applicant provided a transaction listing from 16 August 2024 until 15 January 2025 of the parties joint account. The Tribunal has already mentioned that it is not clear from the transaction listing whether the account is used for household expenses as it is not clear what the debits are for.
Although the Tribunal accepts that some expenses are made out to both parties, because the applicant is being supported financially by the sponsor and does not contribute financially it follows that household expenses are not being shared. The applicant’s evidence at hearing was that the household expenses were solely born by the sponsor. The Tribunal affords this neutral weight, as the sponsor is sharing his wealth with the applicant by supporting her.
Conclusion on the financial aspects of the parties’ relationship
On balance, there is little evidence of the financial aspects of the parties’ relationship which does not support the parties’ being in a genuine and continuing relationship. Despite this, the Tribunal affords the financial aspects neutral weight due to the sponsor sharing his wealth with the applicant as the applicant is not working meaning that the financial aspects of the parties’ relationship would be difficult to establish.
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.
(a)Is there joint responsibility for care and support of children?
The applicant submitted a birth certificate from the Government of Punjab, for a male child, Keshav born in December 2020. The applicant and sponsor are recorded as the child’s parents. Having a biological child together is a strong indicator of the parties being in a genuine and continuing relationship and the Tribunal affords this significant weight. The parties’ child is an Australian passport holder and Australian citizen by descent. Documentation to support this were submitted by the applicant to the Tribunal. Photographs were submitted of the applicant and Keshav after his was born in the hospital, the sponsor’s parents holding Keshav in the hospital, and various pictures and ceremonies with the applicant and Keshav after the birth and with other family members.
Submissions were made by the applicant’s representative on 4 February 2025, that the sponsor visited the applicant in India from 22 February 2020 and returned to Australia on 19 April 2020 (the sponsor’s movement records indicate that the applicant returned to Australia on 20 May 2020 so the Tribunal considers it likely that there was an error in the submissions). The applicant became pregnant during the sponsor’s time in India. The submissions state that the sponsor was in Australia when Keshav was born due to the Australian borders being closed from 20 March 2020 until 17 December 2020. The applicant gave birth to Keshav on 2 December 2020 in India and both she and Keshav arrived in Australia on 26 November 2021.
The applicant told the Tribunal that the sponsor did not return to India when the borders reopened as when he returned to Australia after his visit in 2020, he had spent 14 days in hotel quarantine which he did not like. He also could not return due to his work. The sponsor said that when he returned from India, COVID-19 had hit hard. The parties planned that the applicant would bring Keshav to Australia once there was no longer a hotel quarantine requirement. The sponsor had purchased a house, had expenses and just prior to COVID commenced his business. During COVID, things were not going as planned. There were financial issues. He was trying to ensure that things were better for the applicant and Keshav when they came to Australia. He was concerned about going to India and what would happen if there were border issues. The Tribunal accepts this evidence, as the COVID-19 pandemic, the associated lockdowns in Victoria and the hotel quarantine requirements were challenging.
The parties’ evidence was consistent that the applicant looked after Keshav while the sponsor worked. After work, the sponsor took Keshav to the park and spent time with him. Post hearing the applicant submitted a medical certificate from Dr Moazzam Rasheed dated 6 February 2024 stating that Keshav is the parties’ son and the parties have visited the clinic when Keshav is unwell. “I have seen the records and Keshav’s Birth [sic] certificate which state both parents [sic] names”. The Tribunal accepts that there is joint responsibility for the care and support and affords this some weight.
(b) What are the parties living arrangements?
The sponsor’s statutory declaration dated 5 February 2024, states that the parties live together with their son and the sponsor’s brother and his family at Alberfeldie Drive, Truganina. The parties gave evidence consistent with the sponsor’s statutory declaration at hearing. The applicant was able to name her sponsor’s brother, his wife and their child, and the parties gave consistent evidence as to the sleeping arrangements in the three bedroom home. There was a bedroom for each family and a guest bedroom. Post hearing, the applicant submitted form 888 supporting statements from:
a.   the parties’ neighbour Archit Shah dated 6 February 2025 who sees the parties every day and confirms that the parties live with their brother’s family in the same home.
b.   the sponsor’s sister-in-law Ramila, dated 6 February 2025 confirming from November 2021, that they are living together with the parties in the same house.
c.   the sponsor’s brother Trilochan Kumar, dated 6 February 2025, confirming that the parties live in the same house with him.
The applicant also submitted a letter dated 6 February 2024 from Best Chance Child and Family Care Network Inc stating that the parties’ son commenced a 3-year old funded kinder program in 2024, and had commenced four year kinder at Mainview Boulevard Kindergarten. The parties are recorded as his parents and their recorded address is Alberfeldie Drive, Truganina. The Tribunal accepts the parties living arrangements and affords them some weight.
(c) Is there any sharing of the responsibility for housework?
The March Submissions say that because the applicant does not work, she looks after the household and Keshav. She takes Keshav to and from childcare and prepares food for the family. If the sponsor is home, he looks after Keshav and sometimes the parties jointly prepare food. The parties gave consistent evidence that the sponsor helps the applicant with the housework. He helps with the cooking and the laundry. The applicant also added that he assisted with the cleaning. Some of the form 888 statements discussed below also indicate that the parties share housework. The Tribunal accepts that there is some sharing of the responsibility of household which is consistent with the sponsor being the only party working and affords this some weight.
Conclusion on the nature of the household
On balance, at the time of this decision the nature of the household supports the parties being in a genuine and continuing relationship, living together and not separate and apart on a permanent basis and having a mutual commitment to a shared life.
Social aspects of the parties’ 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.
The Tribunal discussed its concerns with both parties about the limited evidence about the social aspects of the parties’ relationship and allowed the parties additional time post hearing to submit documentation. Significant additional documentation was submitted post hearing.
(a) Do the parties represent themselves to other people as being married to each other? and
(b) What is the opinion of persons’ friends and acquaintances about the nature of the relationship?
Post hearing, the applicant submitted:
a.a letter addressed to sponsor from Centrelink dated 6 February 2024 stating that the sponsor has identified that he is married to the applicant. The parties were married from 23 January 2019, with the applicant arriving in Australia on 26 November 2021.
b.the sponsor’s individual tax return from 1 July 2021 to 30 June 2022 which identifies the applicant as his spouse.
c.her statutory declaration dated 10 February 2025 setting out the parties lack of activity on social media accounts to “protect our personal information from potential misuse…” as well as the parties prioritising their privacy and security. The Tribunal accepts this evidence.
d.screen shots of what appears to be the applicant’s Facebook account which shows pictures of the parties wedding.
e.a form 888 supporting statement of Sharma Bharti dated 6 February 2025, who at the time of the statement had known the applicant for three years and sponsor for ten. The parties are happily married, and share household chores. They visit her house, and she has seen them shopping. When the applicant was sick, the sponsor looked after her. The parties have a son.
f.a form 888 supporting statement of Mr Kuljeet Singh dated 8 February 2025, who claims to have known the parties for five years and worked with the sponsor running a transport business. He believes the parties’ relationship is genuine. “They have shown a long term commitment, emotional connection, and shared values.”
g.a form 888 supporting statement from the sponsor’s sister-in-law Ramila dated 6 February 2025 who has known the sponsor since 2015 and the applicant since 2019. She attended all the functions of the parties’ marriage. The parties support each other well, and are respectful to each other.
h.a form 888 supporting statement from the sponsor’s brother Trilochan Kumar, dated 6 February 2025, stating that the parties are married, love each other, help each other with housework and emotionally support each other.
i.a form 888 supporting statement from the sponsor’s father Balwant Rai Bagri, dated 7 February 2025 who has known the applicant for six years. The parties were married with the consent of their family, and the applicant lived in their house from the time they married until the applicant and Keshav moved to Australia. The parties understand family values, raise Keshav and have good morals. They support each other.
j.a form 888 supporting statement from the applicant’s mother Savita dated 8 February 2025. She has known the sponsor since the parties’ marriage. The applicant tells her that the sponsor is a caring husband, and whenever she feels low or misses them, the sponsor pampers her. During her pregnancy, the applicant was with them, and they saw how the sponsor was concerned for her and how many times he called her.
k.a form 888 supporting statement from the applicant’s uncle Suresh Kumar dated 6 February 2025. He lived in the same house as the applicant prior to her marriage. The applicant is supportive of the sponsor, and respects his decision. The parties have gone through a financial crisis, and survived it with each other’s support.
l.a form 888 supporting statement from Pushpa Rani dated 8 February 2025. She has known the applicant since birth, and has known the sponsor since the day the parties married. The parties make effort to make special days more special. On the applicant’s birthday the sponsor bought her a cake.

Mr Singh told the Tribunal that he had worked with the sponsor for about five years. He had been to the parties’ house (and was able to tell the Tribunal the address) on the weekends, and the parties had been to his house. He knew the parties were husband and wife, they were married in India, the applicant came to Australia after that, and the parties were in a good relationship. He was not able to elaborate about the parties relationship other than it was good. He met the applicant when she came to Australia from India, and knew that the parties had a son Keshav together.
Mr Sindu told the Tribunal that he and the sponsor had been good friends since 2010. He told the Tribunal that the applicant was the sponsor’s wife, and the parties came to his house and they go to his house. He lived in Tarneit and the parties lived in Truganina which was close to his work. He claims that the parties’ relationship is good, they look like husband and wife and they have a child. Mr Sindu indicated that the parties’ child was two plus years of age and could not recall his name. Given the parties’ child is four, and Mr Sindu has claimed that he has gone to the parties house, it appears that Mr Sindu does not know the parties as well as claimed.
Mr Bhumbla told the Tribunal that the applicant was his older sister. The parties were married in 2019 and he attended their wedding. The parties are husband and wife and have been together for six years. He visits them once or twice a year. The last time he visited them was a month ago, and he stayed with them for three or four days and played with their child (the applicant had earlier mentioned during the hearing that Mr Bhumbla lived in Sydney and that he had spent two days with the parties over Christmas). He speaks to the applicant every day or every second day and to the sponsor once a week. The parties’ relationship is very good. When he visits they are managing things well, their child is good as is their communication. The parties are always together, and they treat him well. The sponsor provides the applicant with emotional support whenever she needs it. If she is missing her family, he is the one to support her. Mr Bhumbla attended Keshav’s birthday last year. The applicant gave the sponsor emotional support as his father had a problem last year (which is consistent with the parties’ evidence that the sponsor’s father began to experience heart issues in December 2024), the sponsor was worried about his father, and unable to visit him. The applicant supported the sponsor by telling him, that her parents and sister would visit her father-in-law.
The Tribunal accepts that there is significant evidence that the parties represent themselves to other people as being married to each other and affords this significant weight. In respect of the opinion of the persons’ friends and acquaintances about the nature of the relationship, there is some evidence that provides insight into the parties’ relationship. The Tribunal affords this some weight.
(c) What is the basis on which the persons plan and undertake joint social activities?
The applicant submitted e-Ticket receipts for the parties and their child to travel from Sydney to Melbourne on 26 November 2021. This is consistent with the applicant’s evidence at hearing that when she and Keshav flew in to Australia from India, they could not fly into Melbourne and the sponsor flew to Sydney to meet them.
The applicant submitted labelled and dated photographs of the parties from February 2019 until November 2022. The parties are at various locations, including having dinner with friends, at the Sri Durga Temple, celebrating Diwali, at friend’s homes, celebrating their son’s birthday with family. Recent photographs within the last year include the following:
a.September 2024: of the parties and Keshav celebrating fathers’ day at Mainview Boulevard Family Learning Centre;
b.October 2024: of the sponsor, Keshav and another child celebrating Dusshera at Sir Durga Temple. Of the applicant, Keshav and another lady attending a Halloween party at the Keshav’s kinder though the photograph does not appear to depict that it is at a party and of the parties and Keshav at the beach;
c.November 2024: of the parties and Keshav at home;
d.December 2024: of the applicant and Keshav at his kinder graduation (though the photograph does not necessarily make that clear); of the parties, Keshav and the applicant’s brother and other family members outside a house (which is consistent with Mr Bhumbla’s evidence that he visited the parties at that time); and
e.January 2025: of the parties and Keshav at Tarneit Central Shopping Centre.
When the Tribunal discussed the lack of recent joint social activities with the sponsor he told the Tribunal that the parties could not afford to go to restaurants or parties, they were being stopped due to his bank account balance. Sometimes the parties go to temple and sometimes friends come over but they cannot afford to spend any extra money. The Tribunal accepts this evidence, as on a number of occasions during the hearing the sponsor had mentioned the long hours he had been working and that the parties had barely been surviving financially. The Tribunal accepts this evidence and accepts that this is consistent with the small amount of evidence of the parties planning and undertaking joint social activities.
Post hearing, the applicant submitted form 888 supporting statements from:
a.the parties’ neighbour Archit Shah dated 6 February 2025 which states that their children play together, they catch up on special occasions and they meet in the evening when they go to the park.
b.the parties’ neighbour Simmi Boparai dated 7 February 2024 which states that she meets the parties every day as they go for an evening walk together, and their kids are good friends. They also visit each other’s houses from time to time.
c.from the sponsor’s sister-in-law Ramila dated 6 February 2025, which states that the parties have joint celebrations. They had a party for her son and the parties helped them organise the party at home.
The Tribunal affords the basis on which the persons plan and undertake joint social activities some weight.
Conclusion on the social aspects of the parties’ relationship
On balance, the social aspects of the parties’ relationship support for the parties being in a genuine and continuing relationship and having a mutual commitment to a shared life.
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.
(a) What is the duration of the relationship?
The sponsor told the Tribunal that the parties’ relationship started on 7 or 8 January 2019, and the parties were married on 23 January 2019. He explained that the parties were family friends. The applicant’s evidence was generally consistent in that she said that the parties were family friends and their families’ consented to their marriage. At the time of this decision, the parties have been in a relationship for just over six years. The Tribunal affords this significant weight.
(b) What is the length of time during which the persons have lived together?
The applicant told the Tribunal that she had been living the sponsor since arriving in Australia on 26 November 2021. There had not been a time when the parties had not lived together. This was consistent with the sponsor’s evidence about how long the parties’ had lived together since the applicant came to Australia. The sponsor also mentioned some brief periods that the parties had lived together in India prior to the applicant relocating to Australia. The applicant submitted numerous documents noting the Alberfeldie Drive, Truganina address on documentation addressed to her from August 2022 until December 2024. A smaller amount of documents were submitted that were either addressed to the parties jointly or just the sponsor.
The Tribunal also notes that the evidence from witnesses Mr Sindu and Mr Bhumbla supports that the parties are living together as do a number of the form 888 statements. The Tribunal accepts that the parties have continually lived together since the applicant arrived in Australia in November 2021 and affords this some weight.
(b)What is the degree of companionship and emotional support that the persons draw from each other?
Post hearing, the applicant submitted voluminous WhatsApp chat records from April 2019 until February 2025. The sponsor is clearly identifiable, and the applicant appears to be identified as “Rishu” which appears consistent with her Facebook identity. The Tribunal affords this some weight.
The parties’ oral evidence at hearing suggests that they have good knowledge of each other’s immediate families. The Tribunal affords this some weight.
The March Submissions say that the sponsor runs a transport business, which recently suffered a $160,000 loss due to the closure of Scott’s Refrigeration. The applicant assists the sponsor prepare run sheets as he cannot afford to hire employees. The applicant supported the sponsor by contributing to the home and his business when it suffered the loss. The sponsor’s undated letter attached to the representative’s e-mail dated 7 March 2024 states that they have a small transport company with five trucks. Since Scott’s Refrigeration Transport’s bankruptcy where they lost almost $160,000 they have worked with other companies but hardly cover their expenses. A letter from KordaMentha headed “Circular to Suppliers” dated 27 March 2023 providing an update from the receivers and managers in relation to a number of Scott’s Refrigerated companies was also submitted.
The applicant at hearing mentioned that in 2023, the sponsor had been working with Scott’s Refrigerated companies who had shut down and the sponsor suffered a great financial loss. The parties went through a tough time and they supported each other. The applicant supported him by assisting him with the accounts and invoices and getting all the documents together. The sponsor told the Tribunal that the applicant had provided him with emotional support as he had been upset because his father had to get a stent in his heart. The sponsor was emotional, he is very close to his father who is like a friend to him. The applicant supported him by telling him everything would be alright, reminding him that his brother was going to be with his family, and the parties would go to look after the sponsor’s father if they had to. The applicant had also supported him in financial times. He told the Tribunal that there was a saying in India that a good woman will help you in the hard times, and she had helped him a lot. The form 888 supporting statement from the sponsor’s brother, Trilochan Kumar, dated 6 February 2025, states that when the sponsor’s father was sick, the applicant supported the sponsor well. Balwant Rai Bagri’s (the sponsor’s father), form 888 supporting statement dated 7 February 2025 says that the sponsor has had a difficult time with his business in the last three years but the applicant has looked after him and the family. The applicant has also supported the sponsor emotionally to stay strong when he had his cardiac surgery in December 2024.
The applicant told the Tribunal that the sponsor had supported her emotionally because as a mother there had been a lot of tough times. She has many emotional breakdowns and the sponsor took care of her a lot during those times. He take her out for gatherings or they go out for dinner, or a walk or a drive together. The sponsor told the Tribunal that he had provided the applicant with emotional support when the applicant had told him that her father had back problems. The sponsor had felt that the applicant had not been happy, and something had been going on, and he slowly asked her and she told him. He told her it would be alright, they have a big family, her uncle is in India, and that they would call her father to see if they could do anything for him from Australia.
The Tribunal accepts that there is some evidence of the emotional support that the parties draw from each other, and the Tribunal affords this some weight.
(d) Do the parties see the relationship as long-term one?
The March Submissions say that the applicant has had difficulty finding employment due to her visa status and this has meant she is also unable to study. Once her visa is confirmed, she intends to study and find a job. The applicant’s undated statement under the cover of the representative’s e-mail dated 7 March 2024 says that the applicant wants to do a teaching course, and wants to help her sponsor financially. The parties’ evidence was consistent with this at hearing. Both parties also mentioned planning to go to India, with the applicant saying it had been three years since she travelled there, and her father-in-law is unwell. The parties had not booked flights, but were waiting for the Tribunal’s decision and hoping to go as soon as possible. The Tribunal affords this some weight.
Both parties were consistent in their evidence that if the applicant could not stay in Australia, that the sponsor would move to India to be with her. The sponsor made clear he had responsibility to his family and could not leave his child. The Tribunal affords this some weight.
Conclusion on the nature of the parties’ commitment
On balance, at the time of this decision, the nature of the parties’ commitment supports the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life, and living together and not separately and apart on a regular basis.
Conclusion as to whether the parties are in a spouse relationship?
Given the findings above in the reg 1.15A matters, the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met at the time of this decision.
Therefore the applicant meets cl 100.221(2) of Schedule 2 to the Regulations. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 100 (Partner) visa:
·cl 100.221(2) of Schedule 2 to the Regulations.

Date(s) of hearing: 5 February 2025

Representative for the Applicant:
Mr Sumit Kumar (MARN: 1681812)

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).

Date(s) of hearing:	5 February 2025
Representative for the Applicant:	Mr Sumit Kumar (MARN: 1681812)