Singh (Migration)

Singh (Migration) [2017] AATA 3164 (24 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Robin Singh
CASE NUMBER:  1515221
DIBP REFERENCE:  CLF2009/134591
MEMBER:Deborah Morgan
DATE:24 February 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 24 February 2017 at 11:29am
CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Whether there is a genuine relationship – Validly married – Co-habited for a period of time – Child born of the relationship – Credibility issues – Lack of sharing of financial information – Several statutory declarations submitted by friends – Lack of detail about the relationship – Inconsistent family information provided by the Sponsor and Applicant – Decision under review affirmed
LEGISLATION
Migration Act 1958 ss 5F, 65
Migration Regulations 1994 r 1.15A Schedule 2 cl 801.221
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 November 2015 (the delegate) to refuse to grant Mr Robin Singh (also known as Robin) (the applicant) a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 October 2009 on the basis of his relationship with his sponsor, Ms Hannan Gabriel (the sponsor). At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant. Relevantly to this matter the primary criteria include cl.801.221 which must be satisfied at time of decision.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate failed to be satisfied on the evidence that the relationship between him and his sponsor was genuine. The delegate gave weight to adverse information with respect to the genuineness of the relationship that was obtained during a site visit to the applicant’s parental home in India. Accordingly, the applicant’s relationship with the sponsor did not meet the definition of ‘spouse’ as defined in the Act.
The applicant appeared before the Tribunal by video link from Perth to Adelaide on 19 October 2016 to give evidence and present arguments. The Tribunal received oral evidence in person from the sponsor, Ms Hannan Gabriel, and from the sponsor’s mother, Ms Ahlam Gabriel. The Tribunal also took oral evidence from the applicant’s mother, Mrs Haribinder Kaur, by telephone.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
The applicant was born in India on [date].
The sponsor was born in Australia on [date].
The parties married in Perth, Western Australia, on 27 October 2008, neither having been previously married (refer marriage certificate folio 64, Department’s file).
There is a child of the relationship, Miss Jazleen Kaur Gabriel, born on [date]. Her birth certificate names her father as “Robin” and the sponsor as her mother.
The sponsor has two older children, Joseph Gabriel and Armani Gabriel.
The applicant was granted a Subclass 820 Partner visa on 13 March 2010 on the basis of his relationship with the sponsor.
Departmental officers from New Delhi conducted interviews with a number of persons at the applicant’s mother’s home on 1 May 2015.
The issue in the present case is whether the applicant’s relationship with the sponsor meets the definition of ‘spouse’ as defined by section 5F of the Act.
Whether the parties are in a spouse or de facto relationship
Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. The applicant claims to be the spouse of the sponsor who is an Australian citizen by birth and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.
‘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 husband and wife 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 as to 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 applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.
The certified copy of the parties’ marriage certificate states they were married on 27 October 2008 in Perth, Western Australia and that their marriage was registered on the same date. The Tribunal is therefore satisfied on the evidence that the applicant and the sponsor were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a) and the Tribunal proceeds to assess the relationship on the basis that it is a ‘spouse’ relationship.
Consideration of regulation 1.15A (3) factors
The applicant provided a copy of the delegate’s decision record to the Tribunal and particular information in that decision is referred to in these reasons.
The applicant has submitted quite a considerable amount of new material to the Tribunal during the review.
The Tribunal refers to the relevant material and to the relevant aspects of the oral evidence received during the hearing in its findings that follow.
The Tribunal took oral evidence from the applicant first, then from the applicant’s mother, next from the sponsor, and lastly from the sponsor’s mother. The other witnesses left the hearing room while the Tribunal took evidence from the applicant.
Financial aspects of the relationship – including joint ownership of assets, and joint liabilities; extent of pooling of financial resources, any legal obligations owed to the other party; any sharing of day-to-day household expenses
The Tribunal expressed its concern to the applicant that the files contain only a small amount of financial material and that material is not current.
The Tribunal acknowledged the provision of a bank account in the applicant’s name for the period 14 August 2015 (date of opening account) to 25 November 2015. The bank account shows three salary payments to the applicant during that period and a transfer of $215 to the sponsor on 5 October 2015.
The applicant’s oral evidence
The applicant challenged the Tribunal’s need to consider financial information. He said he was incarcerated for two and a half years from February 2013 and has not worked much.
The applicant told the Tribunal that he pays the household’s “bills and food” and that the sponsor “sometimes” pays for those items. The sponsor pays their rent and he contributes towards it.
He purchased a washing machine for the household in March 2016 for $1,500. After the hearing the Tribunal received a copy of the invoice issued to the sponsor for the purchase of a washing machine on 10 May 2016 (folio 111, Tribunal file) and states “husband Robin to pick up”.
His mother gave the sponsor some Indian jewellery worth $10,000. He has never had the jewellery valued. He bought the sponsor’s wedding ring and buys her clothes, jewellery, shoes and perfume from time to time.
The applicant has had work related superannuation since February 2016. He has not nominated a beneficiary.
The sponsor has not ever been employed during their relationship. She receives Centrelink benefits “sometimes when I am not working much”. The sponsor receives additional government benefits because her son, Joseph, is disabled. The sponsor does not receive any child support from the father of her two other children who do not have any contact with their father.
The applicant has a debt of several thousand dollars in India but no debts in Australia. The sponsor has no debts.
The sponsor’s oral evidence
She and the applicant have individual bank accounts.
The Tribunal suggested that she and the applicant provide their bank accounts from November 2015 onwards for the Tribunal’s consideration.
She has not worked owing to long term [medical condition].
The applicant has not worked much.
The Tribunal asked how the applicant’s wages have affected her Centrelink benefits. She said that she has not yet advised Centrelink the applicant is working. She said she will repay Centrelink if necessary.
The Tribunal asked the sponsor to describe in general terms how she and the applicant manage their financial affairs. She responded that the applicant pays if she asks. They have shared household costs but not equally.
Neither of them has any debts.
The father of her children does not provide her with any financial support. Her children have no contact with their father and regard the applicant as their father.
After the hearing the Tribunal received the following additional financial material:
·ATO notices of assessment in the applicant’s name for 2012 (taxable income $817), 2013 (taxable income $12,534) and 2014 (no taxable income).
·Hakea Prison statement of financial transactions for the period 4 to 18 February 2013 and a receipt from the prison showing a deposit of $200 in “private cash” on account of telephone costs.
·Bank statements in the applicant’s name for 2012 and 2013.
·Bank statement in the applicant’s name for the period 30 November 2015 to 31 December 2015 which shows two payments of wages to him, one payment of a gas bill, a transfer to the sponsor of $500 and various debits that appear to be for sports clothing, alcohol and two small debits for food shopping.
·Letter to the applicant from his health insurer for period ending 30 June 2016 showing $96 paid during the relevant period.
·Evidence of ambulance cover in the applicant and the sponsor’s names, last payment 7 October 2016 (folios 112 and 113, Tribunal file)
·Letters from two superannuation funds asking the applicant for information.
·Generic receipts from cinemas, adventure world and food outlets dated 2015 and 2016, the most recent being 2016.
·Three money transfers from the sponsor to the applicant’s mother, Haribinder Kaur totalling AUD4,950 from November 2015 to February 2016.
·The sponsor’s Centrelink statement dated 21 October 2016 on which a handwritten note states she is considered partnered although she receives a single rate of pension (Parenting Payment) owing to a “section 24 review” on 9 September 2015 (Tribunal file, folio 121).
The Tribunal acknowledges the evidence of money transfers show that the sponsor provided financial support to the applicant’s mother in the period late 2015 to early 2016.
The receipt for the washing machine does not indicate if the applicant paid any part of the purchase price. Owing to the absence of the applicant’s bank records for 2016 the Tribunal fails to be satisfied regarding his claim that he paid for the washing machine.
As the summary of financial evidence demonstrates, the applicant and the sponsor have not provided any bank statements for 2016.
The lack of bank statements for 2016 leaves the Tribunal unable to make findings in relation to whether the parties pool their financial resources at time of decision.
The Tribunal records a high level of concern that the applicant gave oral evidence that the sponsor’s Centrelink benefits have been significantly affected by his wage payments whereas the sponsor was frank that she has not yet advised Centrelink in relation to the applicant’s employment. The Tribunal prefers the sponsor’s oral evidence in this matter because the Centrelink benefits relate to her pension and benefits for the children and considers that the applicant’s oral evidence reflects very poorly on his credibility and hence his reliability as a witness.
The sponsor’s lack of awareness that the applicant owes money in India indicates a lack of sharing of financial information between the parties.
The combined oral evidence from the applicant and the sponsor was that they share some household costs. In this context, the Tribunal takes into account the sponsor’s oral evidence that she asks the applicant to pay for items. That evidence indicates the applicant does not voluntarily contribute to household costs. The Tribunal acknowledges that the applicant’s bank statements for the period August to December 2015 include two transfers to the sponsor in that period totalling $715. Those transfers are the only evidence provided at review of the applicant’s monetary contributions to the sponsor.
Owing to the lack of current documentary evidence with respect to financial matters the Tribunal is unable to determine to what degree, if any, the parties pool their financial resources at time of decision.
There is no evidence before the Tribunal that the parties jointly own any assets or have any joint liabilities.
For the above reasons the Tribunal fails to be satisfied that the parties are financially committed to each other at time of decision.
Nature of the household – including any joint responsibility for care and support of children, parties’ living arrangements; and any sharing of housework
The applicant’s oral evidence
He and the sponsor first resided at [Residential address 1], Western Australia. The sponsor was renting that house before the applicant lived with her.
They moved to their current address, [Residential address 2], where he, the sponsor and the three children reside.
The applicant said the rental agreement is in the sponsor’s name because he was “not around”, meaning he was incarcerated at that time.
In relation to sharing of household tasks, the applicant said the sponsor cooks except for curries which he makes (the 3 children eat curries), cleans and vacuums. He puts out bins, mops floors, cleans the air conditioner every 10 days and does the dishes. He helps the sponsor hanging out washing.
In relation to the sponsor’s older children, her son, who [has a disability], was aged 4 and her daughter was aged 2 when he married the sponsor. He is responsible for the three children.
The sponsor’s son, Joseph, had [an] operation when he was 4 and does not currently have [further] problems. The child has a good prognosis. He attends Year 7 and is a special needs student owing to his [disability]. The applicant attends Joseph’s therapy sessions with the sponsor.
The sponsor’s daughter Armani and their child Jazleen are both intelligent but Armani is careless. Armani is in Year 4 and Jazleen is in Year 1.
On the evening before the hearing the applicant and the sponsor ate stir fry for dinner together and the children had Chinese take-away.
On the weekend before the hearing the applicant worked on Saturday until 4.45pm and he and the sponsor watched television and listened to rap music in the evening. On Sunday they attended an 11 year old girl’s birthday party.
The sponsor’s oral evidence
The sponsor said she and the applicant lived at [Address 1] until April 2012. They transferred to their current address at [Address 2] because their neighbours were violent.
In relation to sharing of household tasks, she does everything but the dishes, feeding the dogs and putting out the bins which are the applicant’s domain.
She said the applicant sometimes assists her with cleaning and he cooks curries which she confirmed the children eat.
In relation to the children, the sponsor said the applicant is a good father to them. He is recorded as their step-father at their schools. Her son Joseph is in Year 7 and Armani is in Year 3 – she is quite clever but lazy.
The applicant attends Joseph’s therapy sessions with her. They are both very stressed by Joseph’s behavioural [problems].
The sponsor said on the evening before the hearing she was at her Aunty Cheryl’s home for dinner. She then changed her answer, saying her memory is not good, and said she ate stir-fry in the bedroom and the children had Chinese food.
With respect to the weekend before the hearing, the sponsor could not recall what she did on Saturday. The Tribunal asked her if the applicant worked. She said he did. She then stated that on Saturday she took her aunty to the airport late in the evening. On Sunday they attended a girl’s 10^th or 11^th birthday party.
The applicant has submitted an album of photographs that are not dated and lack information about the identities of the people in them. Many of them appear to have been taken in home situations. Looking at the ages of the children, most of the photographs appear to be taken when Jazleen was a baby and toddler but there are some more recent photographs in the album of the applicant, the sponsor and the three children in a home setting, at a school sports’ day, at a beach and in a car.
The Tribunal acknowledges that evidence in relation to the parties’ current address has been submitted including Medicare cards, driver’s licence, bank statements, letters from [organisations].
As outlined above, the oral evidence about sharing of household tasks was not consistent. For the reasons given previously, the Tribunal prefers the sponsor’s evidence to the applicant’s. The Tribunal considers the applicant embellished the level of his contribution towards household chores in an attempt to enhance his application for review.
As outlined above, the applicant and the sponsor gave inconsistent oral evidence about Armani’s school grade and in relation to events on the Saturday prior to the hearing.
Social aspects of the relationship – including whether parties represent themselves to other people as being 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
The applicant said the sponsor has brothers and sisters and that her parents live apart.
The Tribunal acknowledges that fourteen statutory declarations have been submitted at review. The declarations state that the parties have been known to the declarants for years, generally four to five years, some longer. The statutory declarations are mostly very brief. Most of the declarations declare that the declarants have contact with the couple on a regular basis, mostly weekly or more, and that the relationship is “a true relationship” or “a genuine relationship” without stating reasons for having that opinion. There is one exception, the statutory declaration from Narelle Maree Greenwell, who has provided some reasons for her opinion that the relationship is “extremely true” (Tribunal file, folio 83).
Because some of the declarations were silent on the issue, the Tribunal asked the applicant about the regularity of contact with the declarants of the fourteen declarations. In relation to most of the declarants he said he and the sponsor see them at least weekly. They see most of Jessie Chalmers who is a very old friend of the sponsor’s and has 3 children.

The Tribunal put it to the applicant that all of the fourteen declarants fail to mention that he was incarcerated for 2.5 years. In response, he said he was released 16 months ago.
The Tribunal considers it is not plausible that the declarants would have spent time with the couple at their home during the 2.5 years the applicant was incarcerated. The Tribunal considers that by withholding the information that the applicant was incarcerated for 2.5 years of the period they have known the parties, the authenticity of the declarations is therefore significantly reduced. The Tribunal therefore gives the fourteen statutory declarations no weight.
The Tribunal said that of photographs submitted to the Tribunal, none of them are with other adults. The applicant said in response that one cannot force aboriginal people to have their photographs taken.
The Tribunal expressed its concern to the applicant that his mother said he married the sponsor to obtain permanent residency in Australia. The applicant denied his mother said those words and he also denied that his mother made the other statements she is reported to have made at interview which were: she did not know when the applicant and the sponsor married; she did not know the date of his child’s birthdate; she had not sent gifts for his child; and, there were no photographs of the sponsor or of his daughter in her home (refer pages three and four of the delegate’s decision record).
The applicant said that the untrue report about the home visit to his mother indicated “corruption” in the Department. The Tribunal warned the applicant not to make unfounded allegations with respect to officers of the Department.
The applicant said that his mother suffers from recurring [medical condition] which concerns him. His mother later denied that she has recurring [medical condition]: refer paragraph 87 below. This is another example of the applicant’s unreliability as a witness.
The applicant requested the Tribunal to telephone his mother.
The sponsor’s oral evidence
She is estranged from her father who has [a medical condition] . Her mother has moved to Melbourne from Perth in 2004 but returned to Perth after three years. Her mother currently lives two minutes away from them.
The sponsor stated she has four brothers. The Tribunal prefers her evidence in relation to her siblings against the applicant’s. This is a further example of the applicant’s unreliability as a witness.
Oral evidence by telephone from the applicant’s mother
Mrs Haribinder Kaur told the Tribunal that the applicant is the eldest of her three children. She stated the sponsor’s name and said that her son and the sponsor have three children. She named the sponsor’s child, Joseph, and said that the sponsor’s second child’s name commenced with an “A.” she knew the child Jazleen’s name and her date of birth.
Mrs Kaur confirmed that Departmental officers visited her home. She said that at that time she had photographs of the sponsor and Jazleen on display. The Tribunal referred her to the delegate’s decision which states no such photographs were on display. She said “maybe photographs were lying around and they did not see them.” The Tribunal treats that evidence as an admission by Mrs Kaur that photographs of the sponsor and Jazleen may not have been visible to the officers. The Tribunal takes this matter no further.
The Tribunal asked Mrs Kaur why her son married the sponsor. She responded that was because they loved each other. She regards the sponsor as her child and loves her very much. The Tribunal referred Mrs Kaur to the part of the delegate’s decision that states she said the applicant married the sponsor to obtain permanent residency in Australia. She denied making that statement. The Tribunal put it to her that it was not acceptable to state that the Department’s record was untrue. She repeated that she never said her son married the sponsor to obtain permanent residency.
The Tribunal asked Mrs Kaur about her health. She said she has arthritis and blood pressure problems. The Tribunal asked the witness if she has recurring [medical condition]. She said [medical condition] was in the past and it is not a problem. The Tribunal prefers Mrs Kaur’s evidence on this matter.
The Tribunal rejects Mrs Kaur’s contentions about the Departmental officers’ report with respect to the home visit because it considers she gave her evidence on notice of the report of the Department’s site visit and was attempting to correct her evidence in the applicant’s favour. The Tribunal prefers and gives weight to the report of what Mrs Kaur is reported to have said during the site visit as stated in the delegate’s decision.
After the hearing the sponsor sent a photograph of her brother-in-law standing in front of a cabinet that contains photographs of her, the applicant and their children (Tribunal file, folio 128). The Tribunal is unable to give weight to that photograph because there is no indication of the date the photograph was taken.
In an email to the Tribunal dated 21 October 2016 (folio 129) the sponsor states she does not believe her mother-in-law would state what she is reported to have said during the home visit interview. The sponsor queries the nature of the evidence the Department has of the interview with her mother-in-law apart from what was written by the officers. The sponsor alleges there are “corruptions in every department agencies all round the world including Australia” and that the matter should be investigated.
The report of the interview with Mrs Kaur during the site visit refers to the applicant having gone to Australia to study and quitting his studies to marry the sponsor “to get permanent residency in Australia” (Department file, folio 162). The record of interview of Mrs Kaur reflects she was aware of the applicant’s incarceration in Australia and aware of a number of other factors concerning the relationship. The Tribunal rejects the sponsor’s contentions that the report in relation to Mrs Kaur’s interview is incorrectly reported because the report includes the information that the Department officer checked that Mrs Kaur understood all questions at the end of the interview; and the interview report indicates that she volunteered the information about the applicant marrying the sponsor to obtain permanent residency in Australia.
For the above reasons the Tribunal considers there is no need for any further investigation of the Department’s interview of the applicant’s mother.
Oral evidence from the sponsor’s mother
Mrs Gabriel told the Tribunal that she returned to live in Perth 2.3 years ago (i.e. in mid-2014). This is inconsistent with the sponsor’s evidence that her mother returned to Perth in 2007.
Mrs Gabriel said she visits the applicant and the sponsor’s home daily and the applicant is a respectful son-in-law.
The parties are in a continuing relationship. They argue about simple things. When asked, the witness did not think the parties suffer stress.
She did not attend the parties’ marriage because she was living in Melbourne at the time.
She has no doubts that the applicant is a good husband and he loves the three children.
When the applicant was in gaol, the sponsor was upset and she went to her home daily to assist her during that period.
Nature of persons’ commitment to each other - including 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.
The applicant told the Tribunal that he and the sponsor plan to buy a house together, have another child, bring his mother to Australia and, possibly, operate a transport business.

100. The sponsor cares for him and worries about him when he is not employed. She also worries for their mother because of her recurring [medical condition]. On the basis of Mrs Kaur’s evidence the Tribunal rejects the applicant’s claims about his mother suffering from recurring [medical condition] because Mrs Kaur’s oral evidence was that she does not suffer from that condition. This is a further example of the applicant’s unreliability as a witness.
101. The Tribunal asked the sponsor her reasons for marrying the applicant. She said he would not leave her alone and “almost stalked” her. However, he took on her two children. He buys her gifts. She said the applicant is doing his best to correct his mistakes and she is by his side. They plan to buy a house, start a business and have another child when they are mentally stable.
102. The sponsor told the Tribunal that the applicant physically comforts her when she is upset and if she is angry he calms her.
103. The Tribunal received oral evidence from the sponsor that she [suffered a medical condition] in 2012 and that affected both her and the applicant significantly.
Conclusions
104. For the reasons given above, the Tribunal considers the applicant’s mother’s statement during a Departmental interview in 2015 that the applicant married the sponsor in order to obtain permanent residency in Australia indicates the applicant’s motives for marriage were not honourable.
105. The parties claim to live together at time of decision and to have cohabited in a spouse relationship from the time of their marriage in October 2008 until the applicant’s incarceration from February 2013 to August 2015.
106. The Tribunal acknowledges the evidence demonstrates that the sponsor and the applicant have a form of relationship and that they appear to have lived under the same roof for some periods since their marriage in 2008.
107. The Tribunal acknowledges the female child of the relationship, Jazleen.
108. The Tribunal also acknowledges that the documentary evidence on the files indicates the applicant has had some responsibility for the three children.
109. However, against the positive evidence in relation to the children of the relationship, this decision records a number of instances of the applicant’s unreliability as a witness and there is the matter of the Tribunal having expressed its grave concerns in relation to the applicant’s credibility in relation to the sponsor’s Centrelink benefits.
110. For the reasons given above, in relation to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the parties commitment to each other, the Tribunal is not satisfied that at time of decision the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others; the relationship is genuine and continuing; or that they live together or do not live separately and apart on a permanent basis. The Tribunal is therefore not satisfied that the applicant is the spouse of the sponsor at the time of decision.
111. Given these findings the Tribunal is not satisfied that at the time of this decision the applicant and the sponsor are in a spousal relationship. Therefore the applicant does not meet cl.801.221(2)(c).
112. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).
113. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
114. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Deborah Morgan
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).

[2017] AATA 3164

24 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice