Shahid (Migration)

Shahid (Migration) [2020] AATA 1816 (11 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hassan Bin Shahid
CASE NUMBER:  1729822
HOME AFFAIRS REFERENCE(S):          BCC2015/544393
MEMBER:Christine Cody
DATE:11 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2)(a)(i) of Schedule 2 to the Regulations.

STATEMENT MADE ON 11 MARCH 2020 AT 2:49PM
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – parties married – lived together for seven years – genuine and continuing relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, rr 1.09, 2.03, Schedule 2, cl 820.211
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW – SUMMARY

The applicant, Hassan Bin Shahid, arrived in Australia on 27 August 2008 on a TU 573 student visa. This was extended on 16 April 2013 and again on 5 March 2014, the final extension valid until 15 March 2015.
The applicant lodged an application for a UK 820 visa on 18 February 2015 on the basis of his de facto relationship with his sponsor (Alice Hinds). 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 (the Regulations). The primary criteria must be satisfied by the applicant.
The delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act) on 4 October 2016 on the basis that the visa applicant did not satisfy cl.820.211(2) because the delegate was not satisfied that the applicant and the sponsor were in a committed and genuine relationship at the time of visa application (18 February 2015) (cl.820.211(2)) and in the preceding 12 months (commencing 18 February 2014) (r.2.03A).
This is an application for review of the delegate’s decision. This is the second time that the matter has been before the Tribunal. The issue in the present case is whether the applicant and sponsoring spouse were in a de facto relationship at the time of application.
The Department
The Departmental file contains various documents including the application forms from the applicant and sponsor, a Form 80 (Personal Particulars) for the applicant, a copy of the sponsor’s birth certificate, a copy of an Australian national police check for the applicant, a copy of the applicant’s passport, a copy of the applicant’s NSW ID card, a copy of the sponsor’s NSW ID card, a copy of a Pakistani police check for the applicant, offers of accommodation at the University of Wollongong, a Centrelink statement for the sponsor, bank statements for the applicant, a statutory declaration from the sponsor’s mother, a statutory declaration from a family friend of the sponsor, a letter of support from a friend of the applicant’s, a letter of support from the sponsor’s mother, emails between the applicant and sponsor, two photos of the parties, and a copy of the delegate’s decision record.
There are no non-disclosure certificates on file.
According to the application forms and statements on file, the applicant’s and sponsor’s backgrounds and claims can be summarised as follows:
·     The sponsor: The sponsor was born on 10 June 1992 in Katoomba, Australia. The sponsor is a dual British and Australian citizen. The sponsor’s mother is in Australia, and her sister is married and living in the US. The sponsor was a student at the University of Wollongong. At the time of the first Tribunal decision, the sponsor was enrolled in an online psychology degree.
·     According to the counselling referrals and Centrelink medical certificate on the first Tribunal file, the sponsor suffers from agoraphobia and depressive illness.
·     The applicant: The applicant was born on 29 September 1988 in Karachi, Sindh Province, Pakistan. The applicant’s father, mother and two sisters remain in Pakistan.
·     The applicant completed intermediate education at Defence Authority Degree College for Men, Karachi in September 2007. The applicant then undertook foundational studies for engineering at the University of Wollongong from February 2008 until November 2008. The applicant enrolled in a Bachelor of Engineering at the University of Wollongong in February 2009, and was due to complete the degree in 2016. The applicant worked as a data analyst for a consulting company in Nowra from March 2012 until June 2012. He then worked at a call centre in Wollongong from February 2014 until June 2014. He worked at a manufacturing company from August 2014 until October 2014. He worked as a research student at the University of Wollongong from April 2016 until the present.
·     The relationship: The applicant and sponsor first met, began a relationship, and committed to a shared life in 2013.
·     The applicant and sponsor share their possessions and finances, including paying for rent, food and phone bills. The applicant and sponsor enjoy going camping, on road trips, dinners, movie nights and attend university social events together. At the time of the application, the applicant and sponsor intended to marry at the end of the year (2015). The applicant and sponsor became engaged in June 2014.
The delegate’s decision on 4 October 2016
As noted above, the delegate did not accept that the relationship was genuine at the time of application and in the preceding 12 months. The reasoning included the following:
·     Concerning the financial aspects, the delegate noted that there was limited evidence as to the pooling of financial resources, namely a bank statement for the applicant which did not show pooling of financial resources nor how they shared their day to day living expenses. An email showed that he had transferred money to the sponsor. The delegate was not satisfied that the applicant and sponsor had any joint assets, financial commitments and shared ongoing financial responsibilities.
·     Concerning the nature of the household, the delegate did not place weight on the letter showing that the applicant and sponsor (and other students) were living on campus at a university. While a bank statement (applicant’s name) and a letter from Centrelink (sponsor’s name) show they used the same address for some correspondence there were no other documents indicating that they were living there as a couple. Little weight was given to the statutory declarations from the sponsor’s mother and a friend.
·     Concerning the social aspects, it was noted that two photographs taken of themselves were provided as well as statutory declarations and letters of support from the sponsor’s mother and two declarants who say they are friends with the sponsor’s mother. Little weight was given to these for various reasons and the delegate considered that there was no convincing evidence that the applicant and sponsor presented as a de facto couple or undertook joint activities.
·     Concerning the nature of the commitment of the relationship, the delegate said that no evidence had been provided of mutual obligation, companionship, emotional support, or a joint commitment to a shared life as a de facto couple.
The delegate formed the view that the evidence did not establish that there had been a genuine de facto relationship 12 months before, and at the time, the visa application was lodged. It was noted that the 12-month requirement could be waived in certain circumstances (including if the relationship is registered in accordance with NSW law).
The first Tribunal
The applicant initially applied to the Tribunal (differently constituted) for review on 7 October 2016.
By the time of the hearing, the applicant and sponsor had registered their relationship and provided to the first Tribunal a NSW Relationship Certificate issued by the NSW Registry of Births, Deaths and Marriages dated 26 May 2017. Some further documents were provided including a medical certificate for the sponsor’s mother (who suffers from breast cancer), a statutory declaration by the sponsor, a statutory declaration by the applicant, a statutory declaration by a former housemate of the applicant and sponsor, a certificate of counselling for academic consideration for the sponsor, six bank statements for the sponsor, a referral letter for the sponsor regarding counselling for agoraphobia and depressive illness, a letter of support for the sponsor from a University of Wollongong counsellor, photos of the applicant and sponsor, five statements for a joint bank account held by the applicant and sponsor, two statutory declarations of a family friend of the sponsor, a Centrelink medical certificate for the sponsor, and a letter from the sponsor.
The first Tribunal’s file also contained a copy of the delegate’s decision record.
The first Tribunal affirmed the decision on 1 August 2017. The basis for the Tribunal’s affirmation was that there was inconsistency in evidence presented by the applicant and sponsor, and there was insufficient evidence to satisfy the Tribunal that the applicant and sponsor were in a committed and genuine relationship. Some of the reasoning was as follows:
·     Concerning the financial aspects, the first Tribunal noted that there was evidence of some transfer of funds, and a joint account which the applicant had conceded had only been established for visa application purposes and it appeared to have been used only to transfer funds between accounts, mainly to the applicant’s separate account. The sponsor’s bank statements showed that she had received Centrelink youth allowance and she admitted that she did not declare to Centrelink that she was in a de facto relationship for the extended period that she was receiving youth allowance. The first Tribunal was not satisfied that they had been honest about their financial situation nor that they have combined the financial aspects of their lives in any meaningful way as would be expected of a couple in a long-term committed relationship.
·     Concerning the nature of the household, the first Tribunal was not satisfied that a joint household had been established. It noted that the applicant and sponsor had registered their relationship but had only recently done so, after the Department refused their application. The first Tribunal noted that additional statements had been given and that the sponsor’s mother gave evidence at the first Tribunal’s hearing, but considered that she did not provide much insight in to the parties’ daily lives, except to say that they do not socialise, the sponsor does not have friends, and they lead a quiet life.
·     Concerning the social aspects, it was noted that the applicant claimed that they do not go out much due to the sponsor’s agoraphobia. The first Tribunal was concerned however that the evidence that they do not go out or socialise much or go to the bank or Centrelink, appeared inconsistent with a claimed activity that they like to do (to go out to the shopping mall). Further, the first Tribunal was concerned with the lack of evidence from friends of the parties except for Mr Bin Iqbal. In this regard it was noted that while the applicant and sponsor and her mother claim that she does not have any friends or family close to her other than her mother and the applicant, in her written statement of 10 April 2017 the sponsor said that due to the applicant’s support her conditions are much better such that she is able to go shopping and be around people. “… we now enjoy spending time with a few close friends … in small social outings and at home having dinner and watching movies”. Despite this claim, at hearing the applicant and sponsor could not name any such friend other than the applicant’s friend Omar who has since returned to Pakistan. It was thus unclear who the sponsor was referring to in her statement. Further, apart from the oral evidence there was no evidence to show that the applicant’s family was aware of the relationship. The first Tribunal was not satisfied on the evidence available that the applicant and sponsor present themselves socially as being in a de facto relationship or that they undertake social activities together as a committed couple in a long-term relationship.
In considering that it was not satisfied in this latter respect, the first Tribunal said that it was prepared to accept that the sponsor may have depression and anxiety now and in the past due to her personal history, but considered that the evidence from the University of Wollongong was limited. It was stated that the sponsor had self-reported to a psychologist that her GP had diagnosed her with agoraphobia and depressive illness but that there was no independent evidence of this.
The Federal Circuit Court
The Federal Circuit Court remitted the case by consent on 24 November 2017. The basis for the remittal was that the first Tribunal erred by failing to consider evidence before it, namely a Centrelink medical certificate and note by the University of Wollongong referring to the sponsor’s medical diagnosis of agoraphobia and depressive illness.
The second Tribunal
The (current) Tribunal had been constituted with this case on 8 August 2019. The Tribunal held two hearings; the agent had requested that the first hearing be adjourned to allow further witnesses to attend and to have access to documents; the Tribunal had agreed to adjourn the hearing to a new date (which it subsequently rescheduled to accommodate the medical requirements of the sponsor’s mother).
In submissions dated 15 October 2019, the applicant’s representative provided written submissions and a further statement by the sponsor; a further statement by the applicant; a marriage certificate for the applicant and sponsor; congratulation cards addressed to the applicant and sponsor; some bank statements for the applicant’s account, the sponsor’s account, and for a joint bank account in the applicant and sponsor’s name; a joint tenancy agreement; pay summaries and tax returns for the applicant; photographs of the applicant and sponsor; medical reports for the sponsor; and further statutory declarations from:
·     Amy Baronowski who said that she met the couple in 2013 when they were living in university accommodation in Wollongong and since that time she had socialised with them both frequently and infrequently, over 6 years. She is sure that it’s a genuine relationship, they’ve faced many challenges and difficulties together, they have a similar sense of humour and they are an emotional and financial support for each other.
·     Umer Khan: lived with the couple in the same university accommodation and met the sponsor in 2013 through the applicant. He has remained in contact with them ever since and he believes that they are committed to each other. He and his wife would often visit them in Terrigal when they were living in Sydney.
·     Amanda Van Eldick who said that she met the couple when they all lived in the same university accommodation at the University of Wollongong in August 2013. She met them through her partner Ahmed and she saw them regularly. When they moved to the Central Coast she saw them less, but kept in touch, even spending Christmas Day with them. She believes they are genuine, they have met each other’s families and friends and have lived together as long as they have known them, sharing holidays and all aspects of their daily lives. Having lived in India for 3 years and spent a considerable time with a partner who is originally from Pakistan she believes that although the couple has faced challenges, they have done so with persistence and love.
·     Simon Rees, the sponsor’s uncle, who stated that he met the applicant in 2013 around Christmas time and he had already been aware of their relationship through contact with his sister (the sponsor’s mother) and also direct contact with the sponsor. He has been in continual contact with the parties over the last 6 years at family gatherings and generally. He believes it is a genuine commitment.
·     Siva Gounder, who said that he met the parties in 2013 through the sponsor’s mother. The sponsor’s mother was a work colleague of his wife’s. He is aware that they were married in late December 2017. He used to see the couple regularly when they would come to visit the sponsor’s mother during university breaks and weekends, and they developed a friendship with them both. They also babysat Mr Gounder’s son on several occasions. He does not doubt the authenticity of their relationship.
·     Noman Wadiwala stated that he has known the applicant since 2010 and the sponsor since 2013. They all attended the same university for their undergraduate studies and at the end of 2013 the parties moved in with him in. He believes the commitment is genuine and they have been together as partners since 2013.
Other documentation included:
·     The sponsor’s mother provided several statements in support, confirming that the relationship is genuine, they have lived with her, and she supports their relationship.
·     The sponsor’s mother’s friend Cindy provided several statements saying that she has known the sponsor for many years, and has known about her relationship with the applicant since 2013 and seen them throughout their relationship.
·     Further documentation was provided in relation to the difficulties the sponsor has suffered in the past.
·     Photographs of the sponsor and applicant together, with their cat, as well as at their wedding ceremony in 2017 (and supporting documents of their religious ceremony, and their civil ceremony on 15 December 2017), and in Malaysia with members of the applicant’s family.
·     Letters from professionals stating that the sponsor’s mother had had a recurrence of her breast cancer and she would like the support of her daughter and her daughter’s partner at this time, noting that if the visa was refused, the sponsor’s daughter may have to leave Australia to be with her husband.
·     Financial documents including the applicant declaring the sponsor as his wife on his tax return.
At the first hearing the applicant, sponsor and the applicant’s agent attended. At the outset of the first hearing the Tribunal explained that the matter had been remitted to the Tribunal and that the case would be considered afresh, with the same issue to be considered by the Tribunal. The Tribunal explained to the sponsor and applicant that the visa application seeking a temporary (820) and permanent (801) spouse visa had been lodged on 18 February 2015 and the issue before the Tribunal was whether or not, at the time of application, the parties were in a de facto relationship. The Tribunal noted that there had been a further relevant requirement, namely that the parties had been in a de facto relationship for 12 months immediately preceding the application thus from at least 18 February 2014 to 18 February 2015, however this requirement no longer operated because the parties had registered their de facto relationship under a relevant State or Territory law[1] (r.2.03A).
[1] r.2.03A(3), (4) and (5). Under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: r.2.03A(5), as inserted by Migration Amendment Regulations 2009 (No.12) (SLI 2009, No.273).
The Tribunal noted that it could consider evidence about the relationship at the time of application (18 February 2015), as well as evidence before and after that time.
Difficulties with the agent and the parties
The applicant indicated to the Tribunal that he had thought that the hearing before the Tribunal was almost just a formality for the Tribunal to grant the visa; the Tribunal explained that this was not the case. As specified in the hearing invitation, the applicant had been invited to a hearing because the Tribunal was not satisfied on the evidence before it that a favourable decision could be made on the information before it.

The applicant’s migration agent was sometimes of assistance, at other times however he was less than helpful. Although the agent asserted he was a solicitor and an agent of many years standing, his behaviour was at times inappropriate; he would turn his back to the Tribunal during the course of the hearing, he told the Tribunal that he “did not want to lose”; he would interrupt and attempt to direct the Tribunal in the conduct of the hearing.
·     He interrupted and demanded, early in the first hearing, that the Tribunal put information to the applicant pursuant to s.359AA of the Act when, as the Tribunal pointed out, it was simply asking questions and it had not decided whether, in fact, there was any adverse information.
·     Although the agent requested the Tribunal list the matter with priority, the agent had failed to ensure that he was ready to proceed, as he had failed to follow up his FOI request to the Department from two years earlier (17 August 2017). He then demanded the Tribunal adjourn the proceedings. Hearing time was taken up at the first hearing attempting to ascertain what steps the agent had taken to follow up his request to the Department prior to the current Tribunal hearing. In the end, to assist, the Tribunal suggested that he could return to his office and check to see if the Department had responded to his FOI request and if not he could let the Tribunal know and the Tribunal could then choose to consider this as an oral application pursuant to s.362A of the Act (which it did subsequently do).
·     The agent asserted to the current Tribunal that the whole of the first Tribunal’s file was “quashed” and that the Tribunal was forbidden to look at anything in that file. Time was wasted with the Tribunal having to explain to the agent that information given to the first Tribunal by the applicant (through this agent himself) such as the application for review form, statements of witnesses and bank statements, were not “quashed” as a result of the Federal Circuit Court decision. The Tribunal explained that it was not prevented from considering the information provided to the first Tribunal (and indeed the Tribunal considers that it would be an error not to have regard to such information).
Both the agent and the applicant appeared surprised that the Tribunal was asking questions of the applicant about evidence that the applicant himself had provided, such as bank statements. The agent appeared to suggest that this was procedurally unfair. The Tribunal gave the applicant additional time to provide further bank statements. It was also regretful that the applicant and his agent did not provide full sets of bank statements (instead some statements were provided on a piecemeal basis, showing transfers to other accounts, but the corresponding bank statements were not provided), and that the applicant’s evidence about his bank accounts was evasive.
The applicant was combative and would interrupt the Tribunal despite requests not to; sometimes he would lay his head down on the table. There was no medical evidence presented which would suggest that there was any medical reason for his behaviour. The sponsor’s behaviour was often aggressive; she would yell and interrupt, swear (saying words to the effect of “I don’t know what the fuck date that was”). Although the Tribunal was prepared to accept that she has had PTSD, anxiety and depression, and that she may have been frustrated in the time taken for her partner’s application to be resolved, there was no medical evidence before the Tribunal explaining her behaviour at hearing.
Summary of the consideration of the evidence
Although the Tribunal considered that there was a lack of assistance, at times, from the parties and their agent in obtaining evidence to support the claim of a genuine relationship, the Tribunal took evidence, requested further documentary evidence, put adverse information post hearing to the applicant, and carefully considered the responses received. The Tribunal has provided a summary of the s.359A information and responses at Annexure A of this decision. The Tribunal has considered all of the evidence in totality and despite having significant reservations, when it weighs all of the evidence (having given the applicant and the sponsor the benefit of the doubt in respect of some of the evidence which did not support that there was a genuine relationship), the Tribunal is prepared to accept that the evidence can support that there was a genuine relationship at the time of the application. For the reasons set out below, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the parties are in a spouse or de facto relationship
Relevantly to this matter, cl.820.211(2)(a)(i) requires that at the time the visa application was made, 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, an Australian citizen identified in the Subclass 820 visa application.
Were the parties in a de facto relationship?
‘De facto partner’ is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
In forming an opinion whether they were in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3). Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
In this regard the Tribunal has considered:
·     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; any sharing of day-to-day household expenses.
·     Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.
·     Social aspects of the relationship – including whether the parties represented 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 planned and undertook joint social activities.
·     Nature of persons’ commitment to each other – including the duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
·     Any other circumstances of the relationship.
As noted above, as the parties have subsequently registered their de facto relationship in NSW, it is no longer a requirement that they must have been in a de facto relationship for 12 months prior to the application.
Nature of the household
The nature of the household includes any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.
It is claimed that the applicant lived with the sponsor, and her mother, at various times throughout the relationship. As noted in Annexure A, the s.395A correspondence summary, the Tribunal found the evidence concerning the parties’ living arrangements at the time of the application to be unsatisfactory, when taking into account the applicant’s changing periods of time when he resided at the sponsor’s mother’s address which, in addition to being internally inconsistent, were also inconsistent with the sponsor’s evidence and the witnesses’ evidence as to where the parties were residing around and at the time of application. The Tribunal considers that the evidence in relation to where they were living at the time of application was not satisfactory.
The Tribunal is prepared to accept that the applicant cooks, the parties have a kitten that they look after, and that they share the household tasks. It is also prepared to accept that despite the differences in evidence, they have lived, for some periods of time since 2013, with the sponsor’s mother who believes that they have a genuine relationship. The Tribunal is prepared to accept that this is limited evidence supporting that there has been a genuine relationship since 2013.
Nature of persons’ commitment to each other
The nature of the persons’ commitment to each other includes the duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long‑term.
As noted in Annexure A, the s.395A correspondence summary, the Tribunal had concerns with the inconsistent evidence of the applicant and sponsor as to the dates when they met, when they began a de facto relationship, and when they committed to a shared life together, both in their application forms and at hearing. While it accepts that these matters occurred some time ago, the Tribunal considers it difficult to understand why, when the forms were completed by the applicant and sponsor at different times, the dates given for these significant events were so different. Even if the Tribunal was prepared to give the benefit of the doubt in this regard, the Tribunal had concerns that although the sponsor recognised that one of the stated commitment dates was listed as her birthday, the applicant in response said he was unaware of the significance of the date (the sponsor’s birthdate). While the Tribunal accepts that some people may not recall their spouse’s birthdays, it is somewhat different when the date is provided to a person and the person then professes not to know why the date is special. On the whole, the Tribunal considers that the parties’ evidence in this regard should be given negative weight.
However, other evidence of the nature of the parties’ commitment to each other was given positive weight. Generally consistent evidence was given by the parties in relation to matters such as the following:
·     Their first trip together was a camping holiday in Byron Bay, just the two of them, getting to know each other on a deeper level.
·     They have a similar sense of humour.
·     The reason why the sponsor changed her degree from nursing was that seeing patients made her anxious. At university she had a lot of trouble attending classes, facing people and in general and the teachers were not understanding. The sponsor said that the applicant is kind and caring and assists her to cope with her emotions and feelings. She said that she had seen a trauma counsellor three times, and a university counsellor for two years, and she saw a psychologist.
·     They like to spend their time together at home: they like to watch Netflix, they both like to read books and she likes PlayStation and Disney and Marvel movies.
·     Although the length of time given was inconsistent, the parties (and the sponsor’s mother) all said that after the sponsor’s father died the applicant did not work, did not look for jobs, but instead spent time with the sponsor.
·     The sponsor has agoraphobia which sometimes stops her from going out and doing things. The applicant said that he had attended the meetings with the psychologist Jocelyn Harper who helped him understand the sponsor’s anxiety and depression.
The Tribunal also found the evidence from the sponsor’s mother to be fairly consistent as to the parties’ commitment to each other. There was also a letter provided to the Tribunal from the psychologist Jocelyn Harper who stated that in her view, the sponsor receives significant positive support from her partner, the applicant. The Tribunal has also taken into account the subsequent statements in support, all of which state their belief in the parties’ commitment to each other, and that they have married. The Tribunal is prepared to accept that there is evidence supporting that the parties have a commitment to each other, that they draw support and companionship from each other, and that they have lived together for seven years.
Financial aspects of the relationship
Financial aspects of the relationship include a consideration of 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.
The Tribunal considered the financial evidence to be troubling, as put pursuant to s.359A of the Act. It had concerns that the applicant had taken control of the finances and that the sponsor was unaware of the finances. The sponsor gave changing evidence about her attitude towards money; then she claimed that she hates money but she is aware of it and how it has been spent. The Tribunal was concerned that the sponsor did not appear to know how much money she received from her father’s inheritance (double what she claimed); that the applicant controlled and moved this money; and even when he had been given the opportunity between the first and second hearings to explain his transfers of significant sums from the sponsor’s inheritance which he had organised, he had not done so and by the second hearing he was still unable to explain why he had transferred $40,000 to “HB” (which he said was probably a reference to himself). The Tribunal had further concerns with the applicant’s evasive evidence for example when he claimed he didn’t know how many bank accounts he had: at the second hearing when asked how many bank accounts he had at around the time of application he said maybe two but he does not consider this to be relevant. The Tribunal disagreed. He said he is not sure whether he had two bank accounts. He then said maybe he had three accounts. He then said that he was not sure how many bank accounts he had; the Tribunal was concerned with his evidence especially as he only initially produced to the Department printouts from a single bank account when lodging his application. The applicant agreed that it is possible that he did not provide to the Department all relevant bank statements. The Tribunal is not prepared to accept that the applicant, who claims to have been in control of the joint finances from the start, does not know how many bank accounts he had. The Tribunal considers that his evasive evidence in this regard undermines his credibility.
Further, as noted in Annexure A, the Tribunal considers that the applicant told deliberate untruths as to whether or not he had worked in a two-year period which was his claimed reason of the necessity of using the sponsor’s inheritance for expenses.
The Tribunal notes however that the sponsor, after having had the opportunity to consider these matters post hearing, has not raised any objection to how the applicant has dealt with her inheritance in her post hearing statement.
The Tribunal notes the history of the applicant providing bank statements on a piecemeal basis. The Tribunal sent correspondence to the applicant specifying missing bank statements and requesting that they be provided, and providing an opportunity to show the application of funds. There have been transfers of significant sums from the sponsor’s inheritance through various bank accounts and the Tribunal does not consider that there have been prompt and/ or credible explanations for all of these transfers. It considered the real possibility of an exchange of money for assistance in obtaining a permanent visa, however it has decided to give the parties the benefit of the doubt in this regard. The Tribunal is prepared to accept that the bank statements do show an intermingling of funds, for example payment for rent, groceries, dental, gym, groceries, the sponsor’s braces, a car, their Malaysia holiday and their agent. The Tribunal notes that this has occurred after the application was lodged, but it does in any event place some weight on the intermingling of funds for joint expenses.
The Tribunal considered the evidence from the applicant that when he got his latest job, his pay was deposited into the account in his name. When asked if there was a particular reason why he didn’t organise for his salary to be deposited into the joint account he said there was no particular reason, they have their savings together and she takes his card if she needs to. The applicant said the sponsor hasn’t had a card on his account since 2017, she is scared. But she can just use it, she has the password and she has the Commonwealth Bank app and can take cash out of the account in his name. The sponsor has agreed with this evidence and although it has reservations, the Tribunal is prepared to accept that this is how they organise their finances.
Not only was the Tribunal concerned about the applicant telling untruths about his work, it was also concerned with the sponsor’s claims that she did not know that she had to declare her de facto relationship to Centrelink and/or that she was not able to keep appointments with Centrelink. While it is prepared to accept that the sponsor has had agoraphobia and a difficult past, the Tribunal notes that the sponsor herself as well as the applicant, and others, have provided statements in this matter asserting that there have been significant periods of time when the sponsor has been able to socialise, travel, attend university and attend work. It is not prepared to accept that during the whole time she was claiming benefits from Centrelink and not declaring her de facto relationship, that she was unable to inform Centrelink of her de facto relationship (for example even by writing a letter). Further, the Tribunal notes that the sponsor is an intelligent woman who had been studying at university, who has asserted an attention to detail (for example claiming that she was always aware of the details of how her inheritance money had been used by the applicant at the time), and it is not prepared to accept that she was unaware that she had to inform Centrelink of a change in her circumstances as significant as entering into a de facto relationship. While the Tribunal considers that this could be evidence of a lack of a de facto relationship, it could also be evidence of the sponsor making a deliberate decision not to declare her relationship to Centrelink. The Tribunal is prepared to give the sponsor the benefit of the doubt and find the latter. While this undermines the sponsor’s honesty, the Tribunal is prepared to accept that this does not mean she was not in a de facto relationship at the time.
Social aspects of the relationship
Social aspects of the relationship include a consideration as to whether parties represent themselves to other people as being in a de facto relationship or married to 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.
As noted above, there were inconsistencies concerning whether or not the sponsor had no friends and did not socialise, or whether she did have friends and that sometimes they socialised (but at other times they did not, due to her agoraphobia). The Tribunal considered the inconsistencies to be troubling. It is prepared to accept that as a result of her agoraphobia there were many occasions when she did not want/was unable to socialise, but the assertions that she had no friends (which is part of the claimed reason why there was such limited evidence of social acceptance provided to the Department with the application form) is inconsistent with the contents of the applicant’s application form of 18 February 2015: “Alice met all my friends… which made her really happy because they all got along really well. Since then we have been socially accepted as a couple and whilst in the company of just with each other or with friends we love going camping, on road trips, different social activities… We plan to make a commitment officially in front of all of our friends…”

Further, the Tribunal considers it troubling that it is only now, after this matter has been considered by the Department and the first Tribunal, that a number of “friends” have made statutory declarations that they have been aware of the relationship since 2013 and that they have, throughout the years, continued to socialise with the couple. There was no explanation as to why such declarations were not previously obtained and provided (especially as the applicant was previously represented by the same agent).
The Tribunal has however considered the oral evidence of the sponsor’s mother and her friend Cindy. It accepts that they believe that the relationship is genuine and of benefit to the sponsor having regard to her mental health issues. The Tribunal gives weight to this evidence and on this basis is also prepared to accept the evidence of the friends’ statutory declarations provided to this Tribunal, which support the existence of a relationship as at the date of the application.
Conclusion
Having had regard to the above, and despite its concerns, the Tribunal is prepared to accept that at the time of application, the parties were living in a de facto relationship in that they had a mutual commitment to a shared life to the exclusion of others and a genuine and continuing relationship and that they were living together.
Therefore the applicant meets cl.820.211(2)(a)(i) of the Act.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2)(a)(i) of Schedule 2 to the Regulations.
Christine Cody
Member

Annexure A – Summary of 359A Response
The Tribunal wrote to the applicant on 16 December 2019, putting the following information and concerns to the applicant pursuant to s.359A, and received the following responses:
Inconsistencies about significant dates (when they met, when they commenced a de facto relationship and when they committed to a shared life together to the exclusion of all others)
·     The applicant and sponsor gave different dates from each other as to when they met, when they began a de facto relationship, and when they committed to a shared life together, both in their application forms and at hearing, as set out below:
·     In the sponsorship form the sponsor said that they met on 1 February 2013. In the applicant’s application form dated 18 February 2015 he said they met on 15 February 2013. At the hearing he said he did not recall when they first met.
·     In the sponsorship form the sponsor said that that they started a de facto relationship on 1 March 2013. At hearing she said she did not recall when she had written in the form as to when the de facto relationship started and it should have been early 2013. In the applicant’s application form he said that the de facto relationship started on 1 May 2013. At the hearing he said he did not recall when the de facto relationship started and he could not recall any specific date. He said that it could be when the sponsor told him her story but he can’t be sure.
·     In the sponsorship form the sponsor said that they committed to a shared life together to the exclusion of all others on 1 May 2013. In the application form the applicant had said that they had committed to a shared life together to the exclusion of all others on 10 June 2013. At the hearing the sponsor initially said this occurred when they first met, and then she said that it occurred gradually. At the hearing the applicant said he did not recall when they committed to a shared life together, he thought it was when the de facto relationship started and he could not recall any specific date. When the sponsor was informed at hearing that the applicant had said that the relevant date was 10 June 2013, she said that was her birthday. When the different dates from the application forms were put to the applicant at hearing (1 May 2013 and 10 June 2013), he said that he did not recall why those dates were important and it is too long ago and he doesn’t know why those dates were used in the forms.
·     The Tribunal expressed its concern that there are inconsistencies about each of these significant dates (when they met, when they commenced a de facto relationship and when they committed to a shared life together to the exclusion of all others). Further, the applicant had put in his application form that they committed to a shared life together on the day of his sponsor’s birthday but at hearing when asked whether that date (or the other date of 1 May 2013) had any meaning he said that he didn’t recall why that date was important. His lack of knowledge that 10 June was his wife’s birthday and when considered as a whole, the inconsistencies in the dates may indicate that the parties have not been truthful about the start and development of their relationship.
·     In response it was stated:
o   The applicant’s representative stated that the applicant and sponsor met at University of Wollongong student accommodation in 2013, and gradually began spending more time together and fell in love. They began a de facto relationship gradually and committed to a shared life together shortly afterwards, around May or June 2013. They applicant and sponsor put different dates as they could not recall the exact date, and were not represented so did not see any issue with putting in different dates.
o   The applicant, in his statutory declaration in response, said that they had been living together when they met in February 2013, and quickly became closer and fell in love no later than June 2013. Due to the seven years since, the applicant cannot remember the exact date.
o   The sponsor, in her statutory declaration in response, said that the applicant was one of the first people she met when she started living at student accommodation in February 2013, and began spending more time together. The sponsor cannot remember the exact dates, as it was seven years ago, but they were committed to a shared life by June 2013, and their relationship developed around May or June 2013. The applicant and sponsor could not remember the exact date, and did not think it would matter if they put different dates in.
·     The response did not deal with why the applicant was unaware of the sponsor’s birthdate.
Where the parties were residing at the time of application (18 February 2015)
Conflicting evidence was given as to where the parties were living at the time of application:
·     The applicant gave evidence at hearing that, at the time of application (18 February 2015), he was living at the house of the sponsor’s mother (and that he had lived there for 6-12 months). In his Form 80, however, he said he had lived there for 3 months (January to March 2015). The sponsor’s mother indicated that they had only lived there for 3-4 weeks at the time of application, and her statutory declaration indicates that they had been living there in January 2015. The witness Cindy said she had lived at the house of the sponsor’s mother from January 2015 for 6-8 months (which would indicate that she lived there at the same time as the applicant and sponsor, according to the applicant). However, the applicant said that no one else lived at the house apart from the sponsor, himself and her mother, and Cindy also said that the applicant and sponsor did not live at the house when she lived there.
·     Further, the (almost) contemporaneous statutory declaration of the sponsor’s mother indicates that the parties were living at the Terrigal address throughout January 2015, this was the period that Cindy she says she was living there too.
·     The sponsor’s mother gave evidence that the parties lived with her for about 3-4 weeks when Cindy was overseas for a period of about 6 weeks and apart from that they lived in Wollongong but would come up and visit. Departmental movement records indicate that Cindy was overseas from 1 February to 21 February 2015.
·     If either of the versions the applicant gave was correct (either that they lived there for three months or for 6-12 months), then this would suggest that they were living there at the same time as Cindy (contrary to her evidence).
·     Also contrary to the evidence that the couple lived with the sponsor’s mother in 2015 was the evidence of the sponsor who said that they didn’t move in officially with her mother until 2016/2017; at the time of application (18 February 2015) they were living in Wollongong and going to visit her mother on the Central Coast but the parties were not living with her mother, and the Terrigal address was not their residential address at the time of application.
In response to the Tribunal’s concerns with the above inconsistencies:
·     The applicant’s representative stated that the applicant and sponsor lived with the sponsor’s mother at the time of the application, and used that address as their permanent address since university was not in session. During semester-time, the applicant and sponsor lived in Wollongong, and visited the sponsor’s mother during semester breaks and on weekends.
·     The applicant stated that they lived at the sponsor’s mother’s house at the time of the application, and during breaks between semesters. They did not have any other address to put on the forms when they lodged it, and that it was more permanent than their student accommodation.
·     The sponsor stated that they lived at her mother’s house at the time of the application and during university breaks. They did not have any other permanent address, so they put the mother’s address down as their address.
The Tribunal is not persuaded by these responses. It notes that the applicant gave changing periods of time when he resided at the sponsor’s mother’s address which, in addition to being internally inconsistent, were also inconsistent with the sponsor’s evidence and the witnesses’ evidence. The Tribunal considers that the evidence in relation to where they were living at the time of application was not satisfactory.
The applicant’s lack of knowledge of the sponsor’s degree
The Tribunal decided to give the applicant the benefit of the doubt in relation to his inability to recall the name of the degree to which he helped the sponsor transfer. In this regard the Tribunal has decided to accept the response that the sponsor transferred her course four times, and that the applicant knew the name of two subjects she had studied.
The sponsor’s inheritance, the applicants control of the finances, and the applicant’s willingness to tell untruths concerning his work
The sponsor received an inheritance of $188,000 of 2017 when her father passed; her bank statements show:
·     Her bank account (9606) received direct credits from a superannuation fund on 1 August 2017 ($72,288) and on 4 August 2017 ($35,359.04)
·     Her bank account (9606) shows that she received a total of $80,000 described as “Alice’s money” transferred from her mother’s account between 11-14 October 2017. Her mother gave evidence that she transferred the money directly to her daughter and thereafter had no idea what happened to this money
It was the applicant’s evidence that in 2017 his sponsor received about $100,000 after her father passed away and he managed the finances. He said that the funds have not been saved, they have been used because after the application was rejected by the first Tribunal he couldn’t get a job and so the money went on various expenses. When it was noted that he had transferred significant sums out of the joint account and into an account in his name and he was asked why, he said “no reason”. It was also noted that on 5 and 6 August 2017 $20,000 was transferred on both days from the joint account to “HB”. The applicant stated that HB might be a reference to himself, but was unsure what happened with the $40,000. A further concern was that the inheritance received was double what the sponsor thought she had received (she said when her father passed away she received about $80,000 to $100,000). The Tribunal also noted that there was no documentary evidence (bank statements) showing where the applicant had transferred, and how he had applied (as the person who managed the finances), the additional $60,000 from his wife’s father’s superannuation funds ($40,000 to HB and $20,000 to “Alice”).
Both parties claimed that the inheritance was used on certain expenses (although some was not accounted for).
Although the Tribunal had brought to the applicant’s attention at the first hearing that there were concerns about where his wife’s inheritance had gone, when the Tribunal asked him at the second hearing about for example where the $40,000 to HB had gone, he was not able to say other than it was for “joint expenses”. Further, when asked if he had disclosed all of his bank accounts during these proceedings he would not confirm that he had disclosed all of his bank accounts to the Department and the Tribunal.
A further concern was inconsistent evidence about why the sponsor’s inheritance money was claimed to have been applied for expenses. The applicant claimed at the second hearing that he needed to use the monies from his wife’s inheritance for joint expenses because ever since June 2017 (when the first Tribunal decision was handed down), he had not had a job. He said this was because he had quit his job after the first Tribunal decision as they had both decided that he would spend time just figuring out what to do; then he had tried for all sorts of jobs and not been successful; and finally he also did not work because the sponsor needed him to look after her. When he was asked to confirm that he had not worked from June 2017 to date (December 2019) he said this was true, and he said it was for those reasons stated.
This however was inconsistent with evidence from both the sponsor and her mother as follows:
·     The sponsor said that he had started working for his current job with TNA in about mid-2018 and before that he had been working in lots of different jobs except for a brief period where he did not work. She then said that she thought that he might have had a few months break.
·     The sponsor’s mother gave evidence that he had been working for the most part and the periods of time that he could not find jobs were not long, and although there was a short time not working (spending time with the sponsor), he had mostly consistently been working (and at least since about September 2018).
The above indicated that the applicant has been prepared to tell untruths about his work situation. It also indicated that he deliberately told an untruth when he said that he was forced to use the sponsor’s inheritance for joint expenses because he had not worked at all for a period of more than two years. The above also undermines the claims about the financial aspects of the relationship namely that he has been managing the finances for the benefit of both.
In response:
·     The applicant’s representative stated that the applicant and sponsor jointly managed their finances. The couple used the inheritance for a new car, dental expenses, and that the cost for the car did not include registration and insurance costs, which was paid separately. The applicant also transferred money to the sponsor’s mother, and was used for expenses and transferred to the sponsor, her mother, and the applicant. The applicant had struggled to find a job and had to stop working to look after the sponsor, and the inheritance was used for expenses during this period.
·     The applicant stated that he and sponsor managed their finances together, using banking apps on their phones linked to the accounts. The inheritance was transferred between the applicant, the sponsor, the sponsor’s mother, and the sponsor’s old account. The sponsor’s old account was used since her mother could transfer instantly to it, which the sponsor could then transfer instantly to her new account. The $60,000 ‘missing’ was transferred to the sponsor’s mother. The sponsor was actively involved in the finances. The applicant has an account in his name, but this account is used by the applicant and sponsor as a joint account. The applicant could not give a detailed account of how the money was used since it has been several years since this occurred. The applicant worked on and off during their relationship, as it was hard to get a job due to his visa situation. The applicant stopped working in June 2017 to take care of the sponsor, as she needed him during this time, and resumed work in September 2018.
·     The sponsor stated that they manage their finances together using banking apps on their phones. The sponsor authorised the applicant to handle the inheritance money as she did not like dealing with it. The money was transferred between the sponsor’s and applicant’s accounts, the account of the sponsor’s mother, and to the sponsor’s old account so that she could transfer instantly to and from the mother. The money was spent on daily expenses. The applicant stopped working in June 2017, as he had difficulty finding jobs and also to care for the sponsor, and he resumed work in September 2018.
·     Additional bank accounts were provided after the second hearing: the bank accounts for the sponsor’s mother show that she received the $60,000 transferred with names such as ‘Alice money’ and ‘HB’. The sponsor’s mother then transferred this money to another account, 5424 with descriptions ‘Alice’. The total of $60,000 is then transferred to another of the sponsor’s mother’s account and it is then transferred to the sponsor’s account 9606, which is then transferred to the joint account.
The Tribunal was not satisfied with the applicant’s claims about his work situation and considers that he was prepared to tell untruths when giving evidence (which he subsequently modified without explanation). The Tribunal notes that there has been a long history in this matter of the parties providing bank statements on a piecemeal basis and evasive evidence for example from the applicant who claimed he didn’t know how many back accounts he had. The Tribunal is prepared to accept that there have been transfers for monies from various bank accounts however it is not satisfied that there have been credible explanations for these transfers, nor for the evidence at hearing that the parties did not know why these monies were moved around. The Tribunal also notes there is no explanation as to why the sponsor’s evidence changed from hearing (that the applicant had been working except for a short break) to then claiming post hearing that he stopped working for a period of 14 months, which the Tribunal also considers undermines her credibility.

[2020] AATA 1816

11 March 2020

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