Qi (Migration)

[2023] AATA 432

Qi (Migration) [2023] AATA 432 (2 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Wei Qi
Miss Yijie Wang

REPRESENTATIVE:  Ms Cecilia Yek

CASE NUMBER:  1822042

HOME AFFAIRS REFERENCE(S):          BCC2016/596823

MEMBER:Naomi Schmitz

DATE:2 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2) of Schedule 2 to the Regulations; and

·cl 820.221(1) and (4) of Schedule 2 to the Regulations.

Statement made on 02 March 2023 at 9:55am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – binding financial deed – lengthy cohabitation – shared farm management – social recognition by witnesses – evidence from the parties’ family doctor – financial support to the applicant’s daughter – decision under review remitted          

LEGISLATION

Family Law Act 1975, s 90B
Migration Act 1958, ss 5, 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.321; r 1.15

CASES

He v MIBP [2017] FCAFC 206

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 Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 10 February 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2) and cl 820.221(2) because there was insufficient evidence to be satisfied that the parties were in a genuine and continuing spousal relationship as set out in reg 1.15A of the Regulations.

4. As the primary criteria was not met by the primary applicant, the secondary applicant was also found to have not met the secondary criterion of clause 820.321 by virtue of being a dependent or a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Partner (Temporary) (Class UK) (Subclass 820) visa.

   Background

5. The applicant is a citizen of China and is currently 60 years of age. The applicant originally worked as a midwife in China and subsequently as a medical academic after completing her medical PhD. The sponsor is an Australian citizen currently aged 80 years. He is a retired builder and now farmer, operating a hobby farm with the applicant. The sponsor has never married and does not have any children.

6. The applicant first arrived in Australia on 3 July 2013 as the holder of a Visitor (Subclass 600) visa and travelled to and from Australia on multiple occasions. The applicant was subsequently granted a second Visitor (Subclass 600) visa, arriving in Australia on 18 June 2015 and departing on 25 July 2015.

7. It is claimed on 18 June 2015, that the applicant was introduced to the sponsor at a dinner party organised by a mutual friend, with other friends in attendance. The parties claim they communicated with one another, with the assistance of friends and broken English, as the applicant was not fluent in English at that time. The parties also used body language. They discussed their family, previous careers and life in general. The sponsor claims the applicant left a big impression on him by her intelligence (having various tertiary qualifications and a successful medical career); her beauty; and her independence and strength, the applicant raising two daughters alone after her second husband deserted their family for another woman. The applicant states that she found the sponsor humorous and sensed that the sponsor liked her, showing intense eye contact and hugging her enthusiastically at the end of the night of the dinner party. The applicant claimed there seemed ‘like there were a lot of unspoken words’.

8. The parties claimed that they maintained contact over the next few days, with the help of the applicant’s friend, Chun Rong Luo, who she was staying with for the holidays. On 22 June 2015, the applicant and sponsor arranged another dinner with their mutual friends Yi Jiang He and Roger. That evening the sponsor invited the applicant to his home and she stayed with him for the next few days before returning to China on 25 July 2015. It is claimed during this month that the applicant and sponsor resided together at the sponsor’s farm in Kernot, Victoria. The sponsor purchased for the applicant an English-Chinese dictionary to assist her learn English and introduced her to life in the countryside. During this time the applicant learnt about raising cattle and chicken breeding. At hearing the parties claimed they consummated their relationship and considered themselves in a relationship approximately two weeks after meeting.

9. When the applicant returned to China in July 2015, she thought seriously about living with the sponsor on his farm looking after his cattle and chickens. She was also concerned about the sponsor’s welfare, living on the farm himself and felt he needed someone to look after him. The applicant thought they were compatible, as he was a kind and generous man. After a lifetime and career of stressful work in China, the applicant was also attracted by a quiet life in the Australian countryside. Before returning to Australia in August 2015, the applicant made the most serious decision to commit the rest of her life to living with the sponsor as husband and wife. She decided to leave behind her three properties, family, and her eldest daughter in China.

10. The applicant subsequently returned to Australia on 22 August 2015 and departed on 24 October 2015. The parties claim that during this time the applicant stayed with the sponsor again and resumed their life together. The sponsor proposed to the applicant at his farm, and they married on 5 October 2015 at the office of a marriage celebrant in the presence of two witnesses, friends. The applicant and sponsor subsequently held a small and intimate wedding party attended by six friends.

11. The parties appropriately conceded that their relationship developed rapidly from the time of meeting to marriage, (four months) but maintained that it was and continues to be a genuine spousal relationship. The parties claim they understood what is required from a marriage and what they both have to put in to make a marriage work and did not enter their relationship lightly. At the time of marriage, the applicant was already 53 years of age, and the sponsor was 73 years old. At the hearing, the applicant explained that she had been married twice, her first husband dying in a car accident and marrying a second time, having two daughters from that relationship. The applicant stated she divorced her second husband after she discovered he had been unfaithful during the marriage ‘cheating with a neighbour’. The parties’ claims of not entering the relationship flippantly are also supported by the parties seeking legal advice and entering into a binding financial deed (colloquially known as a prenuptial agreement) on 25 September 2015.[1]

    [1] Binding Financial Agreement Deed pursuant to s.90B of the Family Law Act 1975 (Cth). The intention of this agreement is to set out how in the event of the breakdown of the parties’ relationship, their property and financial resources are to be dealt with and to settle and discharge all financial matters between the parties, including claims for the alteration of property interests and declarations of property rights. Schedule 1 sets out the applicant’s assets, financial resources, and liabilities and Schedule 2 sets out the sponsor’s assets, financial resources, and liabilities.

12. At the time of the visa refusal the applicant had been living with the sponsor for three years on his farm. The sponsor had been sending money to the applicant’s daughter in Germany to assist with her studies from 2016 to 2017. They had undertaken many social activities with their mutual friends and regarded their relationship as long-term.

13. On 10 February 2016 the applicant lodged an application for a Partner (Subclass 820) visa which was refused on 20 July 2018.

14. The delegate who considered the application noted the following issues:

    a.    Limited financial evidence was provided as to the financial aspects of the relationship, in particular the joint bank account statement was of no probative value, depicting three deposits in five months;

    b.    The Medicare letter addressed to the applicant did not provide convincing evidence of the parties’ joint household and was addressed solely to the applicant and did not show the parties simultaneously cohabiting together;

    c.     Although the photographic evidence indicated the applicant and sponsor had undertaken some joint social activities together and had met each other’s friends and families and the parties had exchanged greetings cards, they did not constitute convincing evidence that the parties were socially recognised as being in a committed and genuine spousal relationship;

    d.    The claims made in the various witness statutory declarations were not corroborated by any independent and credible evidence; and

    e.    Limited evidence was provided in respect of the development of the relationship and nature of the parties’ commitment to one another.[2]

    [2] Department file: BCC2016596823 - Marriage certificate, statements from the applicant and sponsor, limited phone records and money transfers.

15. Taking into account these matters, the delegate found that the parties were not in a genuine and continuing relationship and therefore the applicant was not the spouse of the sponsoring partner as defined in s.5F of the Act. Accordingly, the delegate found that the applicant did not meet the criteria in cl. 820.211(2) and 820.221 and refused the application.

16. On 23 July 2018, the applicant applied to the Tribunal for a review of the refusal decision. 

17. On 4 August 2022, the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:30 am (VIC time) on 1 September 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had before it and was unable to make a decision favourable to the applicant.

18. Various documents were provided to the Tribunal on 30 August 2022.

19. The primary applicant appeared before the Tribunal on 1 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor and a mutual friend and community local, Mr Alexander Roncari (Mr Roncari). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

20. At the conclusion of the hearing the Tribunal Member requested that further information be provided by 15 September 2022, including:

    a.Annotated financial records identifying relevant transactions (including expenses paid from joint funds) in relation to documents served on 30 August 2022;

    b.A copy of the applicant’s and sponsor’s prenuptial agreement; and

    c.The applicant and sponsor’s Australia taxation office (ATO) returns where they declare one another as their respective spouses.

21. Between 5 and 13 September 2022, various information pertaining to [18] above were provided to the Tribunal.

22. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Consideration of claims and evidence

23. The issue in the present case is whether the applicant is the spouse of the sponsoring partner as defined in s.5F of the Act.  

    Whether the parties are in a spouse or de facto relationship

24. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

25. ‘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?

26. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married on 5 October 2015. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

    Financial aspects

27. The parties do not jointly own real estate or have other joint assets. The sponsor is the registered proprietor of the parties’ residential address, a farm in Kernot, Victoria where the parties breed cows, chickens, and geese. The sponsor owns three properties in China. The parties stated that given they are both mature aged and the applicant’s migration status remains uncertain, they have deferred purchasing a property together and therefore their financial affairs and setup should not be surprising, and no adverse finding be drawn. The Tribunal accepts the parties reasoning which the Tribunal agrees is logical given their life circumstances and the applicant’s migration status.

28. Together, the parties breed chickens and collect approximately 300 eggs per week which they sell at the Dandenong market for cash. They use this cash for their living expenses. The parties also claim cash is their preferred method of transacting given the applicant is Chinese, and cash is predominantly used in China (at least pre-COVID-19) and the sponsor is almost 81 years of age and not well versed with technology and electronic forms of payment. In support the parties provided a large volume of cash receipts from 2015 until 2022 which the Tribunal accepts.

29. The parties operate a joint bank account where the applicant’s salary is deposited, along with the sponsor’s pension. The parties admit that they did not actively use this account originally, using cash instead. Since the COVID-19 pandemic the parties have used their joint account more frequently. ANZ banking records from December 2019 until December 2022 were provided which show each party depositing funds into the account (i.e. the sponsor’s pension and the applicant’s salary) and it being used regularly to pay for the parties day-to-day living expenses such as their groceries, fuel for their three motor vehicles and diesel for their farm. Neither of the parties have any liabilities. The sponsor is the applicant’s superannuation death beneficiary. The sponsor gave evidence that he does not have any remaining superannuation. The parties also claimed that they purchase household items for one another, including the sponsor who recently purchased the applicant a brand new iPhone for $1,468.00. In support the sponsor provided a receipt from JB Hi-Fi which the Tribunal accepts.

30. Overall, the Tribunal finds the financial aspects of the relationship support a finding that both at the time of application and at the time of decision, the parties were and continue to live together in a genuine and continuing relationship with a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Nature of the Household

31. The parties have been residing together for over seven years, since 2015. The parties submitted a large volume of correspondence in both the applicant’s and sponsor’s names addressed to the parties’ shared residence including banking records, medical records, Medicare correspondence, payslips, superannuation, and taxation documents which are consistent with the parties’ claims that they have resided at the same address together over this time. The Tribunal accepts that the parties have been residing together for a lengthy period and places positive weight in the applicant’s favour.

32. At hearing the parties provided consistent and detailed evidence regarding their lives which the Tribunal regards as only being within the esoteric knowledge of genuine spouses. The parties reside on a 75-acre farm property raising 50 cows, 25 calves, 80 chickens and geese. The parties enjoy breeding rare chickens and harvesting eggs. Each morning the parties wake up at approximately 6:30 am and attend to their farm animals, feeding them, giving them fresh water, changing their beds and collecting approximately 60 hen eggs daily. The sponsor uses a quad bike to aid his mobility. In breeding season, the parties attend to the cows more, ensuring that the calves are being properly fed. This is manual work which is a two-person job. The applicant and sponsor both go out on the tractor to attend the cattle during the day. The parties spend approximately three hours per day attending to the cattle. The parties then have breakfast and enjoy a cup of tea together and go to bed at approximately 7:30 pm.

33. The applicant looks after the household activities, including cooking, cleaning and clothes washing. Each morning the applicant prepares breakfast making the sponsor bacon and eggs. The applicant also prepares dinner including oven roasts and Chinese food such as fried rice and dumplings which the sponsor loves.

34. The Tribunal received multiple witness statements, including from local community members and neighbours who attest to the applicant and sponsor being in a genuine spousal relationship, including caring for their farm animals and the applicant caring for the sponsor, in particular cooking him Chinese cuisine, which she also cooks for the neighbours. At hearing the Tribunal also received viva voce (oral) evidence from Mr Roncari, a neighbour who has known the sponsor for over 15 years. He gave evidence that he has met the applicant on over 40 occasions. He gave evidence that he and his wife socialise with the applicant and sponsor, enjoying both afternoon teas and dinners, including at the applicant and sponsor’s home and Mr Roncari and his wife’s home. Over seven years he has consistently observed the applicant working jointly with the sponsor on their farm, attending to their animals, farming, ‘herding’ cattle and in general providing the sponsor with love and care. Mr Roncari presented as a highly credible and reliable witness and the Tribunal places significant weight on his evidence.

35. The Department issued one s.376 certificate to the Tribunal regarding the genuineness of the relationship. At hearing the Tribunal Member explained that the source of the information could not be disclosed as it had been given to the Department in confidence. The information was received on 11 May 2017. At hearing the Tribunal Member explained that she had a discretion under s.376 of the Act to release the information if the Tribunal Member considered it appropriate to do so having regard to the information. The Tribunal Member formed the view that it was appropriate in the circumstances to release the relevant parts, as the source of the information was not disclosed so no identity could be revealed; the information provided a summary of the adverse information to the applicant, the information was relevant to the review and the probative value of the information outweighed any other concern about the fact it was provided in confidence.

1. A relevant summary of the information was put to the applicant pursuant to s.359AA as it was information that would be a reason or a part of the reason for affirming the decision under review. The information related to the Department receiving information since the parties’ marriage and spousal visa application that the applicant was not cohabiting with the sponsor as claimed when in Australia, that the applicant had been collected from the airport by a friend rather than the sponsor; that the applicant had stayed with the friend as opposed to the sponsor and that the applicant’s attitude had changed towards the sponsor since the parties’ marriage and visa application. The Tribunal Member explained to the applicant that this information was relevant as it indicated that the applicant and sponsor did not have a mutual commitment to a shared life together as husband and wife to the exclusion of all others and that the relationship was not genuine and continuing.

2. The applicant vehemently denied the allegations stating that it was untrue and that the parties had resided with one another for over seven years, save for a couple of occasions when the applicant returned to China to finalise her personal, employment and financial affairs. She also stated that when she initially arrived in Australia, she did not know the sponsor and therefore was staying with a friend Tracy. She also stated that on her subsequent travel to Australia, as the sponsor is older and resides 168km from Melbourne Airport she had taken the airport bus to Southern Cross Station and subsequently made her way to the sponsor’s home. She referred to multiple witnesses, including Mr Roncari who have observed firsthand the applicant caring for the sponsor and attending to their farm and farm animals. The Tribunal has had regard to the applicant’s response, which the Tribunal accepts and is supported by independent witnesses and other corroborative evidence, including photographic evidence depicting the applicant undertaking farm work.

3. The parties were extensively examined as to their respective health conditions to which both provided consistent evidence. Medical evidence was also provided from the sponsor’s medical practitioner showing that the applicant has consistently accompanied the sponsor to his various medical appointments supporting him through his health ailments, which further points to the parties being in a joint household and being in a genuine relationship.[3]

   [3] Statutory declaration from the applicant and sponsor’s family doctor Peter Li dated 17 September 2020 and letter dated 30 September 2021.

4. The Tribunal has carefully considered the parties’ and Mr Roncari’s oral evidence at hearing which the Tribunal regards as reliable and credible. Their evidence is also supported by a large body of documentary evidence addressed to the applicant and sponsor’s home, multiple witness statements and photographic evidence. Overall, the Tribunal is satisfied that the household arrangements are such that the parties both at the time of application and decision are living together in a genuine exclusive relationship.

   Social Aspects

5. The parties gave evidence that they are recognised by family and friends, in Australia, China, and Scotland, as being in a genuine and continuing relationship and are socially recognised as spouses. The applicant frequently cooks for neighbours and is well known in the community for her Chinese cooking. The parties provided extensive information from friends as to the genuineness of their relationship and photographic evidence depicting the applicant and sponsor with friends on a variety of social occasions and celebrating specific events. A large volume of statutory declarations was provided by friends attesting to the genuineness of the relationship and the fact that the applicant and sponsor represent themselves as being in a genuine spousal relationship and their relationship being accepted by their friends and local community members.

6. The Tribunal has had particular regard to the statutory declaration and letter by the parties’ treating family doctor, Dr Peter Li. He has known the parties for approximately three years and undertaken regular medical consultations with them both. He believes the relationship of the applicant and sponsor is genuine due to his observations during his professional consultations; found they have affection and a rapport towards each other; and states they make common and mutually understood decisions together. The Tribunal notes that Dr Li is currently treating the sponsor for major anxiety due to the applicant’s prolonged migration application and that the sponsor is receiving counselling.

7. The Tribunal also had the benefit of receiving the statutory declaration of Maxine Davis, who has known the sponsor over a decade and shares a common interest in poultry, swapping eggs and chickens. She was introduced to the applicant prior to their marriage. She has regular contact with both the applicant and sponsor since their marriage. Ms Davis’ partner helps the applicant and sponsor with their cattle and often has afternoon tea or dinner with them. She believes the marriage to be genuine as they have been together for over seven years and the parties mutually have the other's best interest at heart. She states they have many common interests such as the farm, poultry, and that the applicant is very attentive to the sponsor and affectionate. The Tribunal also received the statutory declaration of Gary Wayne Kemp who has known the applicant for seven and a half years. He states he assists the applicant and sponsor on their farm, cutting firewood every three weeks, has ‘get-togethers’ and socialises with them both and knows them to be an easy-going couple.

8. The applicant also submitted Christmas cards sent from one of her daughters to the sponsor and phone records showing communication between the sponsor and her daughter. The applicant states that her daughter can speak English well and has no problems communicating with the sponsor. The applicant’s sister and daughter have also visited the sponsor and applicant from China and stayed with them for approximately a month at the farm.

9. At hearing the Tribunal Member put to the applicant pursuant to s.359AA of the Act, the applicant and sponsor’s travel movement records, which showed that the applicant had travelled multiple times outside of Australia without the sponsor. The Tribunal Member explained that this would be a reason or a part of the reason for affirming the decision under review and was relevant because it raised doubts regarding the social aspects of the parties’ relationship and indicated that the parties did not have a mutual commitment to a shared life together as husband and wife to the exclusion of all others and that the relationship was not genuine and continuing.

10. These travel movement records include that the applicant:

    a.Arrived on 12 July 2013 and departed on 13 July 2013;

    b.Arrived on 18 June 2015 and departed on 25 July 2015;

    c.Arrived on 22 August 2015 and departed on 24 October 2015;

    d.Arrived on 14 December 2015 and departed on 28 March 2016;

    e.Arrived on 4 August 2016 and departed on 1 March 2017;

    f.Arrived on 3 June 2017 and departed on 15 November 2017;

    g.Arrived on 8 December 2017 and departed on 19 January 2019;

    h.Arrived on 16 February 2019 and departed on 25 November 2019; and

    i.Arrived on 23 February 2020;

11. The sponsor last departed Australia on 1 September 1998.

12. The applicant explained that she has only returned to China to visit family, including a family reunion and her elderly mother who was ill and is now deceased. She also returned to finalise her personal affairs. She stated that the sponsor did not return due to having the farm and animals to attend to. The Tribunal Member put to the applicant why a neighbour could not look after the farm. She stated that it was not possible as the sponsor has no family in Australia to help (all of them residing in Scotland) and that it would be too big a burden on a neighbour to care for the animals, given the quantity of animals, their needs and the duration of her trips.

13. The Tribunal has carefully considered the applicant and the sponsor’s oral evidence, the photographic evidence, multiple statutory declarations, in particular the evidence from the parties’ family treating doctor and overall, the Tribunal is satisfied that there is sufficient evidence to support the social aspects of the relationship, including at the time of application and at the time of decision, and that the spousal relationship is genuine and continuing. The Tribunal Member also found the applicant’s explanations in relation to the travel movement records as reasonable and logical in the circumstances and makes no adverse finding.

    Commitment to each other

14. The Tribunal accepts that this is a longstanding relationship now of over seven and a half years duration and that the length of their relationship substantially covers the number of years they have resided together. The Tribunal considers that this is a factor which, of its own, does not necessarily indicate a genuine relationship, however in the context of the other evidence submitted, persuades the Tribunal that the parties have a mutual commitment to one another to the exclusion of all others and that they draw companionship and emotional support from one another and that they see their relationship as long term.

15. The medical evidence shows that the applicant has supported the sponsor with his health issues, accompanying him to all his medical consultations and is regarded as his spouse by their family doctor and medical practice. Medical records also disclose that the sponsor’s health has significantly deteriorated due to the prospect of his wife’s visa not being granted and is consistent with his claims that he relies on the applicant to provide him with emotional support and companionship. At hearing both the applicant and sponsor also appeared highly distressed and dependent on one another. The parties also rely on various money remittances, showing the sponsor has sent the applicant’s daughter money to support her whilst she is studying in Germany. The parties have plans for their future together including eventually selling the farm and downsizing to another property and that they consider their relationship as long term.

16. Overall, the Tribunal is satisfied that the parties have displayed the degree of companionship and emotional support which would be expected for parties who have a mutual commitment to a shared life to the exclusion of all others and that the relationship is genuine and continuing. In particular, the Tribunal found the medical records highly probative evidence of a commitment to one another both at the time of application and at the time of decision.

    Conclusion

17. Having considered the evidence individually and cumulatively, and given the findings above, the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. Therefore, the applicant meets cl 820.211(2) and cl 820.221(1) and (4).

18. Having found that the first named applicant meets the primary criteria in cl 820.211(2) and   cl 820.221(1) and (4), the appropriate course is to remit the second named applicant’s application on that basis.

19. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 820 visa.

    decision

20. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations; and

    ·cl 820.221(1) and (4) of Schedule 2 to the Regulations.

    Naomi Schmitz
    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).