Singh (Migration)

[2022] AATA 2606

Singh (Migration) [2022] AATA 2606 (18 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Singh

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  1821699

HOME AFFAIRS REFERENCE(S):          BCC2016/221970

MEMBER:Brygyda Maiden

DATE:18 July 2022

PLACE OF DECISION:  Melbourne

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) of Schedule 2 to the Regulations; and

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

Statement made on 18 July 2022 at 4:17pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – spouse or de facto relationship – validly married – financial, household and social aspects of relationship and nature of commitment – decision under review remitted

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

CASES
He v MIBP [2017] FCAFC 206          
Jayasinghe v MIMA [2006] FCA 1700

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 January 2016 on the basis of his relationship with his 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 cl 820.211(2)(a) because the applicant did not meet the definition of spouse or de facto partner under s 5F or 5CB of the Act.

4. Since the delegate’s decision, the applicant has submitted a considerable volume of documents to the Tribunal. In some respects, only partial and outdated records were submitted by the applicant, for instance, certain bank statements and insurance renewals. The applicant has also provided the Tribunal with a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal on 12 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

6. The applicant was represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is in a spouse or de facto relationship with the sponsor for the purposes of cl 820.211(2)(a).

9. 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. To this end, the applicant provided copies of the bio pages of the sponsor’s Australian passport.

10. ‘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?

11. If the parties are validly married, they may meet the requirements of a married relationship but not a de facto relationship. The applicant submitted a marriage certificate (which the Tribunal accepts as valid), issued in Victoria, Australia under the Births, Deaths and Marriages Registration Act 1996 (Vic) which indicates that the marriage was solemnised by the applicant and sponsor on 23 September 2015 at 43 Lonsdale Street, Melbourne. On the evidence, the Tribunal accepts that 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). However, this alone does not demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing.

    Are the other requirements for a spouse relationship met? Consideration of reg 1.15A matters

12. In order to ascertain whether the requirements for a spouse relationship are met, the Tribunal has considered the Department file BCC2016/221970, the Tribunal file, the documents submitted by the applicant to the Tribunal, and the oral evidence that was provided by the applicant and the sponsor at the hearing.

    Financial aspects of the relationship

13. The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.

14. The sponsor gave oral evidence that the only assets the parties owned outright included some cars and some bicycles. The applicant provided consistent oral evidence in relation to the vehicles, which was confirmed by letters submitted by the applicant dated:

    a.    27 July 2019 and addressed to the sponsor from Toyota Finance noting that the security interest in a Toyota Corolla vehicle had been released; and

    b.    26 October 2021 and addressed to both parties from Macquarie Leasing Pty Ltd confirming payout on a 2019 Mitsubishi Pajero (the “Pajero”) on 22 October 2021.

15. The applicant provided evidence of:

    a.    a joint loan with Macquarie Leasing Pty Ltd, signed by the parties in December 2019 for the Pajero (the “Vehicle Loan”) which as mentioned above has since been paid out; and

    b.    a joint mortgage statement with ING (the “Mortgage”). The applicant also provided a letter from Denton’s dated 21 October 2021 to both parties indicating that the loan for the Clyde property with ING was completed on 21 October 2021 and a rates instalment notice from the City of Casey dated 21 April 2022 for the property in Clyde.

16. A title search dated 21 October 2021 was submitted by the applicant showing that at the time, both parties held the property in Clyde as joint proprietors. There is no evidence before the Tribunal to indicate that this position has changed.

17. The Tribunal is satisfied that the parties have joint assets and liabilities together including the property which they currently reside in which is jointly owned and subject to a joint mortgage. The Tribunal gives this evidence weight.

18. Bank statements were submitted by the applicant of:

    a.    an ING joint Orange everyday bank account in the name of the applicant and sponsor from 1 January 2022 until 19 June 2022 (“Joint Account”); and

    b.    an ING joint Savings maximiser statement from 10 October 2021 until 19 June 2022.

19. The applicant also submitted joint National Australia Bank statements for accounts ending in:

    a.    3252 from February 2018 until August 2019. Additional statements in relation to this account that are located on the Department file indicate that the account was opened on 18 August 2015, that is, prior to date of application; and

    b.    5408 from June 2018 until December 2019. There was also a statement on the Department file for the period of 12 December 2015–12 February 2016 (statement 3) indicating that this account was also opened prior to the date of application.

20. The sponsor gave oral evidence that both National Australia Bank accounts are still open, and both parties’ wages are deposited into the account ending in 5408. The payment of wages into this account is reflected in the statements provided by the applicant, however, the Tribunal notes that the statements are not current. The Tribunal places weight on the ING accounts and limited weight on the National Australia Bank accounts at the time of decision as current statements were not included in the documents the applicant submitted. Nevertheless, the National Australia Bank indicates that the parties have been pooling their finances prior to the date of application and continue to pool them.

21. The sponsor seems to have legal responsibility for telecommunications in that she is the account holder of two different mobile phones and the broadband at the address where the parties reside. The applicant provided some Vodafone invoices between 21 October 2019 and 21 May 2022. One of the numbers listed in the tax invoices is the number listed by the applicant as his in the application for review document submitted to the Tribunal dated 26 July 2018.

22. The Tribunal is satisfied that the parties do not have wills. The applicant gave evidence that the 100% beneficiary of his REST superannuation was the sponsor and that he was the 80% beneficiary of the sponsor’s superannuation with her mother holding the remaining 20%. The sponsor gave inconsistent evidence as to her superannuation beneficiary in that she testified that the beneficiaries for her superannuation were 50% the applicant and 50% the parties’ only child. No current documentary evidence pertaining to superannuation beneficiaries was provided to the Tribunal, and in any event, the Tribunal places little weight on this evidence due to the inconsistency between the parties’ oral evidence and the ease at which superannuation beneficiaries can be changed.

23. Joint utility accounts were provided by the applicant for:

    a.    gas (most Energy Australia invoices from 19 July 2018 until 24 May 2022);

    b.    electricity (most Energy Australia invoices from 16 October 2018 until 18 April 2022); and

    c.     water (most South East Water invoices from 27 October 2021 until 6 June 2022).

24. The Joint Account indicates, amongst other things, joint spending on items, such as, for example: takeaway (McDonald’s, Wendy’s, Hungry Jack’s, Red Rooster and Gloria Jean’s), groceries (Aldi, Costco Wholesale, Coles), shopping (Kmart, Anaconda and Ikea) and fuel (BP).

25. The applicant also provided:

    a.    numerous Baby Bunting tax invoices and layby payments for baby products (which list the applicant and sponsor as loyalty customers) for 2018 and 2019;

    b.    invoices from Spectra Australia dated 8 May 2019 and 19 July 2019 in the sponsor’s name for the purchase of baby products; and

    c.     invoices from Baby-Direct dated 24 February 2019 made out to both the applicant and sponsor for various baby-related purchases.

26. RACV certificates of insurance for motor vehicle insurance for the period of 2019–2020 as provided by the applicant indicate that:

    a.    the sponsor insured a 2016 Toyota Corolla at the address where the parties currently reside. Both parties were noted as drivers on that policy. According to that certificate of insurance, that vehicle was financed with Toyota Finance;

    b.    the sponsor insured a 2010 Holden Commodore station wagon at the address where the parties currently reside. According to the certificate of insurance, that vehicle was financed by Esanda;

    c.     both parties insured a 2019 Mitsubishi Pajero Sport at the address where both parties currently reside. According to the certificate of insurance, that vehicle was financed by Macquarie Leasing and as mentioned above has since been paid out.

27. The applicant gave oral evidence at the hearing that the parties had traded in the Holden when the parties purchased the Pajero and that the Toyota Corolla had been paid off (which is confirmed by the documentary evidence as mentioned above). The applicant’s oral evidence of the trade-in of the Holden is consistent with the Vehicle Loan which indicates that a $9,000 cash deposit/trade-in was included in the calculation of the total loan amount of the Vehicle Loan.

28. The Tribunal is satisfied that there is evidence of the financial aspects of the parties’ relationship, in that the parties jointly own a home which is subject to a joint mortgage, have paid off loans together and have combined their finances, which is indicative of being in a genuine and continuing relationship and a mutual commitment to a shared life together. At the time of application, there was also some evidence of combining finances. Joint National Australia Bank accounts have been in place prior to the time of application and remain in place at the time of decision.

    Nature of the household

29. The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.

30. The applicant submitted the birth certificate issued in Victoria, Australia, under the Births, Deaths and Marriages Registration Act 1996 (Vic) of a female child, born in July 2019. The certificate indicates that the parents of the child are the applicant and sponsor. The parties brought their daughter to the hearing. The child became quite distressed on leaving the hearing room and waiting outside with her mother, the sponsor, so that the applicant could provide his evidence indicating that the child has strong attachment and affection for her father.

31. Submissions from the parties’ representative dated 8 July 2022 state that as the applicant works in the afternoon, he takes care of his daughter in the early mornings and at night‑time. The submissions also indicate that the applicant takes his daughter to swimming lessons as he does not work on Sundays and the sponsor does. Although no documentation from the swimming school was provided to confirm the swimming lessons, photographs were provided by the applicant which are consistent with him taking his daughter to swimming lessons. The difficulty with the photographs is that they are not dated, there is no narration as to the parties in the photograph and no description. In this respect, the Tribunal only provides this evidence some weight.

32. The sponsor gave oral evidence that their daughter went to childcare every Wednesday and Thursday and to the sponsor’s mother’s house on other days when both the sponsor and applicant work. The applicant gave evidence that he would often drop his daughter at childcare on Wednesday and Thursday, and on other days if the sponsor was working, he would drop his daughter at the sponsor’s mother’s house. The applicant gave evidence that he starts work at 12 pm and finishes at around 9 pm but can be home earlier depending on how busy work is. The sponsor stated that if both parties are at home, they both look after their daughter, but their daughter always goes to the applicant to have her nappy changed. The applicant testified that on weekends if there is time, they go to the park or he takes his daughter on a bike ride. This is consistent with photographs submitted by the applicant after the hearing of the applicant and his daughter at the park and in bike helmets.

33. The applicant provided the first statement of a National Australia Bank Limited bank account in his daughter’s name which was opened on 17 October 2019. The sponsor provided oral evidence that the parties had saved money prior to the birth of the child and then opened the account for the child once the child was born.

34. An undated, unsigned and untitled document which was submitted by the applicant but appears to be written by the sponsor (the sponsor confirmed its accuracy in the hearing) (the “Sponsor’s Statement”) indicates that [the sponsor] in May 2022 discovered that she was pregnant again. [Documents] were provided by the applicant of ultrasound scan appointments for August 2022, October 2022, November 2022 and December 2022 as well as ultrasound films for the sponsor evidencing her current pregnancy. A Capital Radiology document dated 29 June 2022 indicates that the sponsor is pregnant with a due date in January 2023.

35. According to the Sponsor’s Statement an undated and unsigned document headed “Relationship Story – By Sandeep Singh” (“Relationship Story”) and the oral evidence, the parties have been living together since December 2014 and continue to live together. The first property they lived in was in Kernot Crescent, Noble Park, together with the sponsor’s brother and eventually his partner, and after that they moved in with the sponsor’s mother in Keech Court whilst their house in Clyde was being built. The parties moved into the Clyde property in May 2018 and still reside there together with their daughter and dog.

36. Both parties gave oral evidence that they have a dog. Vet records in the names of both parties at their current address indicate that the parties together own a dog called “Draymond”. Vet records and invoices were provided on 15 July 2019, 19 July 2019, 18 November 2019 and 25 November 2019.

37. The Relationship Story indicates that household responsibilities are shared, with the sponsor doing all the washing and the applicant putting it away. The sponsor cooks and the applicant cleans. Gardening is done by both parties, and the applicant does “the lawns every fortnight.” This is consistent with the submissions from the parties’ representative dated 8 July 2022 which state that: “Sandeep [the applicant] prefers cleaning while Linda [the sponsor] likes cooking and Linda [the sponsor] does the washing. To spend some quality time together, they also do gardening together as it is a relaxing affair for them.” Oral evidence by the parties at the hearing was also generally consistent with the documents provided to the Tribunal, with the applicant also stating that he doesn’t know how to cook, the sponsor is a better cook and they don’t cook often and normally have takeaway. This is consistent with the Joint Account that indicates many takeaway/fast food purchases. The Tribunal affords this evidence as to the sharing of the housework some weight.

38. The evidence provided to the Tribunal about the nature of the parties’ household is consistent with a couple in a relationship that is genuine and continuing and who have lived together since 2014, which was prior to the time of application. The addition of a child and the current pregnancy of the sponsor tends to logically indicate that their relationship is genuine and continuing.

    Social aspects of the relationship

39. The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

40. The applicant submitted a number of form 888 statutory declarations from friends in relation to how the applicant and sponsor represent their relationship to others and the nature of the parties’ relationship, including that of:

    a.    Gabriel Brinduse dated 20 June 2022 who has been friends with the sponsor for 26 years and has known the applicant for 8 years. Mr Brinduse states that he sees the couple on a regular basis, they go camping together, hold barbecues, birthdays and other events as they have a large number of mutual friends. In his view, he sees “genuine love and care” between the parties and their child. Mr Brinduse states:

    “I have seen them grow from a couple dating to the loving married couple and mother and father they are today. I have watched Linda [sponsor] and Sandeep [applicant] go through the samethings [sic] I have with my wife, from buying a house together, starting a new family, going on camping trips …”

    b.    Chenda Chhay dated 20 June 2022 who has been a family friend of the sponsor for 16 years and has known the applicant since December 2013, when the parties started dating. Ms Chhay states that the parties’ relationship “… is genuine and continuing forever. Their care, love, commitment and respect for one another is beyond my believe [sic]. Their resilience and perseverance is life prove that they are determined to beat any obstacles for their long journey into their future…”

    c.     Channa Tong dated 20 June 2022 who has known the sponsor since she was born, went to the same school with her and has known the applicant for 8 years – they first met in December 2014. Ms Tong sees the parties on a regular basis. They camp together, have dinners together and have parties together as they have a lot of mutual friends. Ms Tong states the she has “… watched them grow from puppy love dating, to marriage and to starting a family … They are a loving couple. The share household chores and finances. Together they look after their daughter Isabelle and dog Draymond …”

    The Tribunal gives these statutory declarations some weight due to the lengthy duration that the individuals making them have known the parties.

1. The applicant submitted numerous photographs which are not dated, have no narration and the people are not identified. In some, it is clear that the applicant and sponsor are together with their daughter at Bright Brewery, bike riding, in the water and at birthday celebrations. There are also pictures of the parties with tents in the background. The Tribunal does not place a great deal of weight on these photographs alone as it is not clear when, where and with whom they were taken. That being said, the photographs appear to be consistent with the statutory declaration of Mr Brinduse and Ms Tong, in that the parties go camping.

2. Numerous photographs were also submitted by the applicant which include pictures of a baby (which appears to be the daughter of the parties), many pictures of the applicant with the child, for example, on the couch, swimming, sleeping and at the beach. There are also pictures of what appear to be birthdays, the applicant and sponsor at dinner with others, in the water with their child and many other photographs. The Tribunal does not place much weight on these photographs in isolation as they are not dated, it is not clear who the parties in the pictures are nor where the photographs are taken. However, when considered in light of the oral evidence of both parties that they like to go out to eat, the Tribunal gives this evidence some weight.

3. The applicant submitted:

   a.    tickets to the Pregnancy, Babies and Children’s Expo held on 19–21 October 2018 and 23–24 February 2019 and 18–20 October 2019, in the name of the applicant and sponsor;

   b.    a number of Hoyts cinema booking confirmations including some which were addressed to Linda (presumably the sponsor), indicating that the sponsor booked three tickets to see Avengers: Infinity War on 4 May 2018 and 11 tickets to see Deadpool 2 on 19 May 2018. The sponsor gave oral evidence that the parties do go to the movies but have not done so recently because of their child, which is consistent with the documentary evidence provided;

   c.     screenshots of the sponsor’s Facebook account. The Tribunal places little weight on these as although numerous events are listed and dated, it is not in most circumstances apparent who the holder of these events is and whether or not the applicant and sponsor attended;

   d.    screenshots of chat records which appear to be between the applicant and the sponsor, and much of the content involves the parties’ daughter. Given that there is no year listed, the Tribunal puts limited weight on these, save to say it seems that the applicant and sponsor text one another. Recent call logs were provided from what appears to be the sponsor’s phone. During the time period for which the phone records were provided, the sponsor called the applicant regularly. This evidence indicates that in recent times the sponsor has called the applicant regularly, and in isolation, the Tribunal places limited weight on this evidence.

4. On balance, at the time of decision the Tribunal is satisfied that the parties have represent themselves to others including their friends as being married and part of a family unit. There is evidence of the social aspects of the parties’ relationship which is consistent with parents of a toddler.  Based on the length of the time the individuals swearing the form 888 statutory declarations have known both parties the Tribunal accepts that there is also evidence of the social aspects of the parties’ relationship at the time of application.

   Nature persons' commitment to each other

5. The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see the relationship as a long-term one.

6. The Relationship Story indicates that the parties met on 11 November 2013 at Hungry Jack’s where they both were working at the time. Their relationship became official on 15 December 2013, the parties have lived together since December 2014 and have been married since 23 September 2015.

7. Both parties provided consistent oral evidence that the applicant had provided the sponsor with emotional support when she broke her leg at basketball. The applicant gave evidence that he left work to be with her and take her to the hospital and to doctors’ appointments. The sponsor stated that the applicant is very calming and calms her down.

8. The sponsor gave evidence that the applicant had also helped her when she gave birth and he gave her water when she needed it. In the Sponsor’s Statement she also stated that:

   As of 2022 we decided we were ready to start trying for another baby, we actually fell pregnant right away again [and] Sandeep [the sponsor] help [sic] me through it and thats [sic] why I love him he always knows what to say to me and keeps me calm.

9. The sponsor stated that she had provided the applicant with emotional support when his father (in India) broke his leg and when he found out about the delegate’s decision to refuse his visa. The applicant’s evidence, although not inconsistent with the sponsor’s, was not particularly specific – he stated that the sponsor is always there for him, at which point he became visibly upset.

10. Documents provided by the applicant indicate that the sponsor is pregnant with the parties’ second child. The Tribunal places significant weight on this, as having a child (and in this case the second child) is indicative of the relationship being long-term. Both parties gave oral evidence that they intended to have at least a third child, with both parties indicating that the applicant would also like a fourth child. The Tribunal places significant weight on this evidence.

11. Both parties gave consistent oral evidence in terms of future plans which involved purchasing an investment property, travelling to America and visiting the applicant’s parents whom the sponsor and the parties’ child have not met in person.

12. When asked what would happen if the applicant could not stay in Australia, the applicant gave evidence that he and the sponsor had not thought about this and had not talked about it. The sponsor’s evidence was that if the applicant could not stay in Australia, she would either rent out their house or sell it because she would not want to work so hard to keep it and would move in with her mum and have the child she was expecting alone. When pressed regarding whether the sponsor would move to be with the applicant, her evidence was that there were better opportunities for their children in Australia and that the parties would do everything they could to keep the applicant in Australia. The Tribunal found this evidence as being contrary to and inconsistent with the relationship between the parties being long-term.  It seems unusual to the Tribunal that the parties had not discussed the possibility of the applicant having to leave the country despite continuing to expand their family without considering the possibility of what might occur if the applicant had to leave Australia due to his visa situation.

13. On balance, the Tribunal is satisfied that there is sufficient evidence in relation to the nature of the persons’ commitment to each other. The parties have been validly married for almost 8 years and living together for over 8 and a half years, and both of these events occurred prior to the date of application. In the Tribunal’s view, the fact that the parties already have [one child] and have another child due in early 2023 strongly indicates a mutual commitment to a shared life to the exclusion of all others and that their relationship is genuine and continuing.

    Time of application requirements

14. The main issue for determination is whether, at the time of application on 15 January 2016, the applicant and the sponsor were each other’s spouse for the purposes of the Act.

15. Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

    This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

16. Accordingly, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

17. For the reasons provided in relation to the reg 1.15A matters, the Tribunal is satisfied that at the time of application, the applicant and sponsor:

    a.    were married to each other under a marriage that is valid for the purposes of the Act as required pursuant to s 5F(2)(a) of the Act;

    b.    had a mutual commitment to a shared life as a married couple to the exclusion of all others as required pursuant to s 5F(2)(b) of the Act;

    c.     had a relationship between them that is genuine and continuing pursuant to s 5F(2)(c) of the Act; and

    d.    live together as required pursuant to s 5F(d)(i).

18. Therefore, the Tribunal determines that the applicant and sponsor meet the definition of ‘spouse’ as set out in s 5F of the Act at the time of application and continue to meet the definition at the time of decision.

19. The ‘spouse’ requirement is not the only requirement of cl 820.211(2) which must be met. The Tribunal finds that cl 820.211(2)(a) is met as the applicant is the spouse of an Australian citizen (the applicant provided a copy of the details of the bio pages of the sponsor’s Australian passport), and there is no information before the Tribunal indicating that the circumstances in cl 820.211(2B) apply, hence the Tribunal finds that cl 820.211(2)(a)(ii) is met.

20. The Tribunal also finds that the applicant’s spouse is over 18 years old, being born in 1991, and the applicant is sponsored by his spouse. Therefore, cl 820.211(c)(i) is satisfied.

21. The Department’s decision record of 20 July 2018 indicates that on 18 September 2012 the applicant was the holder of a Student (Subclass 573) visa, and on 15 January 2016 the applicant lodged a Partner (Subclass 820/801) visa application. Accordingly, at the time of application, the applicant held a ‘substantive visa’ as defined under s 5 of the Act and, therefore, the requirements in cl 820.211(2)(d) do not apply.

22. The Tribunal finds that at the time of application, the requirements in cl 820.211(2) were satisfied.

    Time of decision criteria

23. The Tribunal finds that the applicant continues to meet the requirements in cl 820.211(2) and, accordingly, the applicant meets cl 820.221(1)(a) at the time of decision.

24. 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

25. 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) of Schedule 2 to the Regulations; and

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

    Brygyda Maiden
    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).