Rakhy (Migration)

[2024] AATA 2805

Rakhy (Migration) [2024] AATA 2805 (19 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Riffat Raza Rakhy
Ms Zarin Fauzia Zoity

REPRESENTATIVE:  Ms Stephanie (Yu-Ching) Hsiao

CASE NUMBER:  2310519

HOME AFFAIRS REFERENCE(S):          BCC2015/2266500

MEMBER:David Barker

DATE:19 July 2024

PLACE OF DECISION:  Sydney

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(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 19 July 2024 at 8:07am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit and Family Court remittal – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – length of relationship – statutory declarations, documentation, photos and representative’s submissions – notification to authorities and providers – adverse information of contrived relationship not supported by evidence – member of family unit adult child – strong motivation to achieve permanent residency not fatal to finding of genuine and continuing relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 359AA, 375A
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a), (2)(d)

CASES
He v MIBP [2017] FCAFC 206
MIAC v SZRKT (2013) 212 FCR 99

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 7 August 2015 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 visa applicant did not satisfy 820.211 because they were not satisfied the evidence before them demonstrated that the applicant is a spouse or de facto partner of the sponsor, as defined under s 5F and s 5CB of the Act. 

4. On 16 March 2017, the applicant lodged a request for review of the Department’s decision with this Tribunal. On 23 November 2018, the Tribunal (differently constituted) affirmed the Department’s decision. The applicant lodged an appeal against the decision and the Federal Circuit and Family Court of Australia, by consent on 12 July 2023 ordered that the matter be reconsidered on the basis the Minister concedes that the Tribunal made a jurisdictional error by failing to consider "critical relevant corroborative evidence" before it, namely that the First Applicant was the100% beneficiary of the Sponsor's funeral insurance: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99. It can be inferred that the Tribunal failed to consider this evidence in circumstances where the evidence is prima facie probative in nature (especially when considering the "Financial aspects" of the relationship) and the Tribunal did not expressly consider the evidence anywhere in its decision.

5. The applicants appeared before the Tribunal on 16 February 2024 and 16 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Andrew Abdul Halim Sarder (the sponsor), Mr Khalilur Rahman and Ms Sayeda Monazza. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

6. The applicants were represented in relation to the review.

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

   BACKGROUND

8. The applicant is a national of Bangladesh and is 47 years old. The applicant declares a previous de facto relationship, commencing in September 1996 and finishing September 1998. There was a child from that relationship, the second named visa applicant, who is 26 years old.

9. The sponsor was born in Bangladesh and is 75 years old. He is an Australian citizen by grant in February 1993. The sponsor declares a first marriage, from May 1985 to July 1992,  with that marriage ending by divorce. There was one child from that relationship, born in 1990. The sponsor declares a second marriage, from November 2002 to March 2010, with 0that marriage also ending by divorce. The sponsor sponsored his second wife in relation to a Partner visa application.

10. Information provided by the parties indicate they first met, in Rockdale, NSW, in January 2014. They were married at the Registry of Births, Deaths and Marriages, Sydney, NSW on 20 July 2015.

11. Documents that were provided to the Department in support of the Partner visa application included:

    ·Marriage certificate and other documentation regarding identities and relationship status;

    ·Statutory Declaration of the sponsor dated 12 January 2017

    ·Statutory Declaration of the applicant dated 12 January 2017

    ·Bank account transaction statements, utility account invoices, receipts and other financial documentation;

    ·Documentation regarding application for housing assistance

    ·Witness support statutory declarations and support letters;

    ·Correspondence evidence and cards;

    ·Travel records;

    ·Photographs;

    ·Copy of a photograph of the applicant's grandfather, deceased) with the Gandhi during an anti-riot campaign in East Bengal in 1946;

    ·Copy of business card of Mohammad Rafique 'Curry at the Rocks - Indian Restaurant';

    ·Correspondence from Ron Hoenig MP addressed to the sponsor dated 21 March 2018.

12. In explaining the visa refusal decision, the delegate in their decision record, amongst other things made comment about the following factors:

    ·The delegate advised that they found it difficult to believe that the applicant’s sponsor was financially supporting three people on a single person’s pension. The delegate noted that the joint bank account provided showed very limited transactions, it did not show the applicant’s salary deposits or their sponsor’s income deposits and that there was no evidence of who the account was used by. The delegate observed that it appeared that there were money transfers but that there was no indication as to what they were for or who they were from.

    ·The applicant provided an application form for public housing dated 31 August 2015, however the sponsor did not state when the applicant moved in and there was no evidence from Family and Community Services, that the applicant was included as an authorised tenant in this property. The delegate noted that the sponsor also had not provided evidence that he had declared his relationship with the applicant to Centrelink.

    ·The delegate noted that the only other evidence the applicant had provided that they resided at this address was a Joint electricity account dated 19 December 2016 and although this indicated that the parties’ resided at the same address, the delegate gave little weight that they were living there in a genuine partner relationship. 

    ·The applicant and their sponsor provided birthday cards and a few photos taken of themselves with each other and with friends. The delegate noted that there were only 3 people in attendance at the parties’ wedding and that the sponsor’s son was not present. The delegate advised that it was plausible to suggest that these documents and photos had been staged and had been provided solely for the purpose of the visa application. The delegate acknowledged that whilst the photos indicated that the applicant and their sponsor had undertaken a few joint social activities, they did not constitute convincing evidence of a committed spouse relationship and were given little weight.

    ·The applicant provided statutory declarations from Kevin Rourke and Rezaur Rahman. The delegate advised that the declarations both confirmed that they had met the applicant and their sponsor and had spent time with the parties as a couple. However, the delegate ultimately gave them little weight as the statements were not detailed and did not indicate when the relationship began or when the parties began living together.

13. Documents that were provided to the Tribunal in relation to the Tribunal’s previous consideration of the review application included:

    • Bank account transaction statements, taxation records, correspondence from Energy Australia, insurance policy documentation and other financial documentation;

    ·Residential Tenancy Agreement for John St Waterloo property dated 11 July 2017 and other tenancy related documentation;

    ·Photographs;

    ·Applicant written statements received: 26 March 2018, 23 April 2018, 29 August 2018.

14. Documents provided to the Tribunal in relation to the Tribunal’s current consideration of the review application include, but are not limited to:

    ·Representative submissions dated 15 February 2024, 11 March 2024, 8 May 2024, 29 May 2024;

    ·Statutory Declarations of the applicant dated 11 March 2024, 27 May 2024

    ·Statutory Declaration of second named applicant, Ms Zarin Fauzia Zoity dated 15 February 2024;

    ·Statutory Declaration of the sponsor dated 9 February 2024.

    ·Taxation records, medical evidence and evidence of academic studies pertaining to the second named applicant;

    ·Affidavit of Monowara Khatun, mother of applicant, dated 8 March 2024,

    • Bank account transaction statements, taxation records, utility account invoices, Centrelink correspondence, insurance policy documentation, receipts and other financial documentation;

    ·Tenancy related documentation;

    ·Witness support letters;

    ·Photographs;

    ·Medicare and other medical documentation;

    ·Cards and correspondence evidence.

    Non-disclosure Certificates

15. On 20 July 2023 a delegate for the Minister for Home Affairs issued a Certificate under Section 375A of the Act. The certificate has the effect, if the Tribunal is satisfied as to its validity, of restricting access to specified documents on the Department file. The certificate states that it is not in the public interest that the documents be released, as the information was provided in circumstances where the provider of the information has not consented to disclosure to any other person and the information, if disclosed, could have the potential to identify the source of the information and could lead to injury or damage to member of the community. 

16. On 12 January 2024 a copy of the certificate was provided to the applicant prior to the hearing for any comment they may wish to make as to the validity of the certificate. The Tribunal received a response on 24 January 2024 in which the representative noted that as they were uncertain the context of the information covered by the certificate and therefore were unable to provide their comment. The representative noted that the applicant was invited to comment during her previous appearance before the Tribunal regarding a previous s375A certificate and that they were uncertain if the context of the information subject to the s375A certificate in the file number CLD2019/3535063 overlaps with the information subject to the s375A certificate in the Department file BCC2015/2266500 that had been previously considered by the Tribunal (differently constituted).  At hearing, when invited to make any further comment as to the validity of the s375A certificate the applicant and representative indicated that they wished to rely on the written submissions.

17. The Tribunal considered this submission but has determined the 375A certificate is valid. Notwithstanding this, the Tribunal provided the applicant with the gist of the information in the restricted documents, namely that the applicant’s relationship with the sponsor was contrived and that she was not residing with the applicant, or working in the sort of vocational area she claimed and that she was in a relationship with a different person.

    Particulars of information put to the applicant pursuant to s359AA of the Act.

18. The Tribunal invited the applicant to comment on particulars of information which, subject to her response would in the view of the Tribunal provide the reason, or part of the reason for affirming the decision under review. The particulars of the information were that transactions in the parties’ joint Westpac bank account gave weight to the allegation received in 2017 that the parties were in a contrived relationship and not residing together in the same location in Waterloo, NSW. This was because the transactions referred to show a pattern of debit card purchases or EFTPOS withdrawals at supermarkets or petrol stations in Punchbowl, NSW, where the applicants were alleged to be residing separately to the sponsor over the December 2017 to April 2018 period.  The Tribunal explained the relevance of this information was that if the Tribunal was not satisfied that the applicant was in a genuine and continuing relationship with the sponsoring partner it would affirm the decision under review.

19. By way of response the applicant gave evidence that whilst she had resided with the sponsor in Waterloo since 2015 she had previously lived in Punchbowl and would on occasion return their to shop.  She also noted that she was for a period in 2017 and 2018 working as a security guard at Campsie Library, which is near to Punchbowl and would in consequence do some shopping in Punchbowl.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether the applicant and sponsor were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision.

21. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files, as well as the oral evidence provided by the applicants, sponsor and witnesses at hearing.

    Whether the parties are in a spouse or de facto relationship

22. 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.

23. ‘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?

24. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

25. The Department file contains a copy of a NSW Births, Deaths and Marriage – marriage Certificate that indicates the parties were married at the NSW Births, Deaths and Marriage, Sydney Registry on 20 July 2015.

26. 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 of the relationship

27. The Tribunal has considered the financial aspects of the relationship, including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses.

28. The parties currently have savings or around $40,000 in a joint account they have with the ANZ Bank.  The Tribunal is satisfied this can be viewed as a shared financial asset. They have no joint liabilities, however the applicant noted that repayments, which the sponsor is required to make for a loan he has taken from City Finance are made from funds transferred from the parties’ joint Westpac account to the sponsors individual bank account.  The Tribunal does not assess this latter arrangement as a joint liability, but rather an indication of the pooling of funds towards a regular financial commitment.

29. Further indicators of the pooling of financial resources and the basis of sharing day to day household expenses is apparent from the Tribunal’s review of the bank records provided in association with the review application. The transaction statements support the applicant’s claim that her employment income is deposited into the Westpac joint account and that regular payments for rent, insurance, groceries and ‘pocket money’ for the second named applicant are made from this account. The applicant gave evidence that any residual amounts from her employment income are then transferred to the parties’ joint ANZ account, which they use to develop the aforementioned financial asset.

30. As to the sponsor’s income from the aged pension, he is paid at the partnered rate and has been so since Centrelink was informed of the change in his relationship status from single to partnered in 2015. The Tribunal has noted this contention is consistent with copies of Centrelink correspondence filed with the Tribunal. A review of transactions statements supports the applicant’s contention that after amounts are deducted for the sponsor’s loan repayment and his contribution towards rent the residual amount is deposited into his individual account and then a roughly corresponding amount is transferred to the Westpac joint account. The applicant explained that whilst the parties reside in public housing, they are charged rent of $1,060 per fortnight due to her employment income as a bus driver.

31. The applicant’s explanation for transactions in the 2017 and 2018 period which occurred in Punchbowl is supported by evidence of her employment at that time as a security guard which she has filed with the Tribunal. In light of this, the Tribunal is satisfied the applicant has provided a reasonable explanation for the pattern of transactions evidence in the Punchbowl area in 2017 and 2018, being a period she has claimed to be residing elsewhere in the greater Sydney region, namely Waterloo.  The Tribunal is equally satisfied the applicant’s current employment as a bus driver and the location of the depot she operates out of provides a reasonable explanation for regular transactions in that area of Sydney, namely around the Mascot area.

32. As to the 2017 GIO funeral insurance policy held in the sponsor’s favour, the applicant gave evidence that this policy lapsed due to the parties’ constrained income during the period in which there were more significant restrictions associated with the covid-19 pandemic, but a further policy was taken out with Suncorp around six months ago. The applicant remains the 100% beneficiary of the account, which will provide around $5,000 towards the sponsor’s funeral costs. The applicant gave evidence that the insurance premiums for this account are paid from the Westpac joint account. A separate GIO accidental death insurance policy held by the sponsor, which would have paid a benefit of $100,000 to the applicant also lapsed at the time ofthe GIO funeral policy. The applicant contended that it was not possible to renew this policy due to the sponsor’s current age. She indicated that the sponsor is also the beneficiary of her superannuation account.  The Tribunal is satisfied the payment of the aforementioned insurance premiums from the Westpac joint account reflect the pooling of funds and that the policies and the superannuation beneficiary information referred to by the applicant reflect legal obligations owed to the other party.

1. I am satisfied the parties’ claims with respect to this factor are consistent with the documentary evidence filed with the Tribunal.  I find that the financial aspects of the relationship support a finding that the parties have a mutual commitment to a shared life together.  I have given weight to this aspect of the parties’ relationship.

   The nature of the household

2. The Tribunal has considered the nature of the household, including: any joint responsibility for the care and support of children; the parties' living arrangements; and any sharing of housework.

3. The second named applicant is the daughter of the applicant and is 26 years of age.  The applicant contends that her daughter is a full-time student with no employment income and that the applicant supports her financially. Whilst the Tribunal is satisfied the second named applicant resides in accommodation provided through NSW Housing along with her mother and the sponsor, the Tribunal is not persuaded the aforementioned circumstances constitute joint responsibility for the care and support of children. This is due to the age of the second named applicant and that her need for food, clothes and accommodation are met by her mother, the applicant.

4. A variety of correspondence including bank statements, bills, insurance and other documents were provided that show both applicants and the sponsor receive mail at the same address in Waterloo. There is also documentation regarding the sponsor’s request to NSW Housing, made around the time Centrelink was notified of his ‘partnered’ relationship status, to be relocated to accommodation with more bedrooms. NSW Housing granted this request and the parties claim to have since that time resided in John Street, Waterloo.  The Tribunal is satisfied the evidence supports this claim and notes that they would have appeared to have co-habited in a shared household for a period of around nine years.

5. The applicant gave evidence that the John Street property is a three bedroom  apartment in which she and the sponsor share a bedroom, the second named applicant has a bedroom and the remaining bedroom is used as a study and for similar purposes. The applicant gave evidence that the sponsor does the bulk of the meal preparation in their household, as he previously worked as a chef and that she and the second named applicant share cleaning and other household tasks.

6. In considering the nature of the parties’ household arrangements, I am satisfied the submissions regarding the parties living arrangements are plausible and supported by the evidence provided by the applicants and the sponsor at hearing. I am satisfied that the nature of the parties’ household arrangements supports a finding that they have a mutual commitment to a shared life together. I have given weight to this aspect of the parties’ relationship.

   The social aspects of the relationship

7. The Tribunal has considered the social aspects of the relationship, including whether the parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

8. The documentary evidence demonstrates that the parties have presented as a couple to agencies such as Centrelink, NSW Housing, the Australian Taxation Office,  Auburn Hospital, insurance companies and superannuation providers. The applicant has also provided the Tribunal with numerous photographs of the parties taken in a variety of locations, some of which show them socialising as a couple, including with the applicant’s work colleagues.

9. Provided in association with the visa application were Form 888 witness declarations from Syeed Al Zabir, dated 14 August 2015, Mohammad Rafique, dated 18 August 2015.Both of these declarants attest to the genuine nature of the parties’ relationship and indicate that they have interacted socially with the applicant and sponsor upon numerous occasions. Whilst brief and to the point, the Tribunal considers the declarants have provided a reasonable basis for their views about the parties’ relationship circumstances. Further to this, the applicant’s mother has prepared an affidavit, dated 8 March 2024 in which she attests to the marriage of the applicant to the sponsor and that the applicant and second named applicant reside with the sponsor in Australia.

10. The second named applicant gave evidence at hearing, which was consistent regarding the circumstances of the parties and the John Street household with that provided by the applicant and the sponsor.

11. Further to this, the Tribunal heard evidence at hearing from Ms Syeda Monazza, a friend of the applicant who has known her since they worked together as security guards in 2017.  Ms Monazza gave evidence that the applicant introduced her to the sponsor in 2017 and that she most recently interacted with the parties when she saw them whilst shopping in Parramatta a few weeks before the hearing.  She indicated that the partiers had also visited her and her husband in their family home. Ms Monazza noted that the parties always interacted with each other in a respectful way and gave her opinion that the parties are in a genuine, long-standing relationship.

12. The Tribunal also heard evidence at hearing from Mr Kahil Rahman.  Mr Rahman gave evidence that he is a long term friend of the applicant who comes from the same area in Bangladesh. Mr Rahman indicated that he was introduced to the sponsor around eight years ago and has since that time periodically visited the parties in their home and they also have visited his home.  Mr Rahman opined that the parties seem to have a loving relationship with each other.

13. On the basis of the evidence relevant to this relationship aspect, which is before the Tribunal, I am satisfied that the parties represent themselves as a couple in a genuine and continuing relationship and that their relationship status is recognised by their friends.  I am satisfied that the social aspects of the parties’ relationship support a finding that they have a mutual commitment to a shared life together. I have given weight to this aspect of the parties’ relationship.

    The nature of the persons’ commitment to each other

14. The Tribunal has considered the nature of parties' commitment to each other, including: the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

15. The parties have now been married for very nearly nine years. The Tribunal is satisfied that they have resided together for a similar period and has given weight to these two factors.

16. As to the extent of emotional support and companionship in the relationship, the parties appeared comfortable in each other’s presence at hearing, and both displayed some insight into each other’s emotional needs and physical health status. The Tribunal is satisfied that the available evidence is supportive of the contention made by the applicant in a statutory declaration declared by her on 9 February 2024 that her “relationship with [the sponsor] is very much an adult, mature one, whereby we keep each other company and support each other”.

17. I find that the parties married in July 2015  and that they have cohabited since that date.  I find that the relationship of the applicant and sponsor can appropriately regarded as long term. I am satisfied the emotional support and companionship derived from their relationship which is declared in statutory declarations and submissions is consistent with the evidence and associated narrative that the parties have provided about their relationship. I am satisfied the parties both view their relationship as long term and have given weight to this factor and as well the duration of both the relationship and the period in which the parties have now lived together.

    Overall assessment of the spouse relationship 

18. The Tribunal is satisfied the applicant has a strong motivation to achieve permanent residency for herself and her daughter in Australia. However, such a motivation is not fatal to a finding that her relationship with her sponsoring partner is genuine and continuing. Whilst understanding some of the concerns held by the delegate in March 2017 and the Tribunal (differently constituted) in November 2018, some years have now passed since that time and the evidence, which is now before the Tribunal in my view, points to a continuing spousal relationship between the applicant and the sponsor. More specifically, there is a lack of evidence which would plausibly lead to findings to the contrary. I am not persuaded the allegations that the parties relationship is contrived, which were made in or around 2017, is supported by a review of the body of evidence regarding the circumstances and aspects of the parties relationship over the period since that time. I consider the evidence as to the financial and social aspects of the parties’ relationship, and the nature of their household arrangements are all indicative of a couple in a spousal relationship.  I am also satisfied the evidence now before the Tribunal demonstrates that the applicant and the sponsor had a commitment to each other and their spousal relationship around the time of application in 2015 and at the time of this decision.

19. On the evidence, I am satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, and the couple live together, and do not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

20. On the basis of the above I am satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

21. Therefore, the applicant meets cl 820.211(2)(a) and 820.221(1)(a).

22. The Tribunal is satisfied that the applicant was at the time of application and at the present time sponsored by her spouse. The applicant’s sponsor has turned 18 years of age and therefore satisfies the criteria in cl.820.211(2)(c). At the time of application, the applicant held a substantive visa and so the criteria in cl.820.211(2)(d) is not relevant.

23. Therefore the applicant meets cl 820.221.

    Second named applicant

24. As the second named visa applicant applied on the basis of being a member of the applicant’s family unit, her application will be determined by reference to the outcome of the applicant’s visa application on remittal to the Department for reconsideration.

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

    DECISION

26. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl 820.211(a) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    David Barker
    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).