Soeson (Migration)

Soeson (Migration) [2024] AATA 3037 (24 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mart Soeson
CASE NUMBER:  1900025
HOME AFFAIRS REFERENCE:               BCC2016/933408
MEMBER:David Barker
DATE:24 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 24 July 2024 at 9:36am
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – sponsor is deceased – cognitive, hearing and visual impairments – sponsor was the widow of the applicant’s maternal grandfather – sponsor was not the biological mother of the applicant’s mother – not satisfied the claim that the parties commenced a de facto relationship on 1 January 2013 is made out – no joint ownership of real estate or other major assets– financial aspect of the parties’ relationship – parties cohabited at the Bankstown residence until the sponsor entered residential aged care – lack of insight into the sponsor’s mental health conditions – at the time of the sponsor’s death the parties were living separately and apart on a permanent basis – not satisfied that the applicant would have continued to be the de facto partner of the sponsoring partner if the sponsoring partner had not died – not satisfied that the applicant and the sponsoring partner were in a genuine and continuing relationship – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 35
Migration Act 1958, ss 5, 65, 361, 365
Migration Regulations 1994, rr 1.09, 2.03, Schedule 2, cl 801.221
CASES
He v MIBP [2017] FCAFC 206
Re MILGEA and Dhillon [1990] FCA 144
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 Home Affairs on 20 December 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 7 March 2016 on the basis of his relationship with his 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 (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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 because they were not satisfied on the evidence presented that the applicant and the sponsoring partner (the parties) were in a genuine and continuing relationship.
The applicant appeared before the Tribunal on 31 January 2024. Also present at the hearing were Ms Elfriede Riit (the sponsor), Ms Merike Kuusk, Ms Tatsiana Rubleuskaya and Mr Moreno Gialdini. The hearing on this date was adjourned part heard.
The hearing resumed on 22 February 2024, at which time the applicant appeared before the Tribunal to give evidence and present arguments. There was insufficient time on this occasion to take evidence from the witnesses and as a consequence the hearing was adjourned part heard and resumed on 17 May 2024, at which time the Tribunal received oral evidence from the applicant as well as Ms Kuusk, Mr Gialdini and Ms Rubleuskaya. In relation to the latter witness, the Tribunal was assisted by an interpreter of the Russian and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal’s decision to not hold the hearings in private
The Tribunal’s powers in relation to reviewing decisions are derived from specific enactment provisions in relevant Commonwealth legislation, in conjunction with s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Section 35 of the AAT Act relates to the form of the hearing that the Tribunal is to undertake. Section 35 provides that the hearing of a proceeding before the Tribunal must be in public, albeit that the Tribunal has the discretion to, amongst other things, direct that a hearing or part of a hearing is to take place in private;[1] and give directions in relation to the persons who may be present.[2] Section 35(5) states that in considering whether to give such a direction the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction.
[1] s 35(2)(a) of the AAT Act.
[2] s 35(2)(b) of the AAT Act.
The position in relation to observers at hearings in the Migration and Refugee Division of the Tribunal differs between Part 5 (migration) reviews and Part 7 (protection) reviews. Hearings in relation to Part 7-reviewable decisions must be in private[3] whereas hearings in relation to Part 5-reviewable decisions are required to be in public, subject to two exceptions, which are: where the Tribunal is satisfied that it is in the public interest to do so, it may direct that particular oral evidence, or oral evidence for the purposes of a particular review, be taken in private;[4] or, where the Tribunal is satisfied that it is impracticable to take particular oral evidence in public.[5]
[3] s 429 of the Act.
[4] s 365(2) of the Act.
[5] s 365(3) of the Act.
Noting the presence of members of the public, who the Tribunal understood to be journalists, were wishing to observe the proceedings on 31 January 2024, 22 February 2024 and 17 May 2024, the Tribunal took oral submissions from the applicant on each occasion as to whether he would suggest the hearings should be not open to the public.
On the occasion of the initial hearing on 31 January 2024, the applicant told the Tribunal that he had no concern in relation to a member of the press observing the proceedings before the Tribunal.
However, on 22 February 2024, in response to the Tribunal clarifying if this remained the applicant’s position he asked that the hearing proceed in private and that the media be excluded from the proceedings. When asked why, the applicant did not indicate he had a personal objection to the hearing proceeding in public but contended that the sponsor had informed him that this was what she wanted as the issue is a personal one for her and she was not comfortable with details of the parties’ personal circumstances being published in the media. The applicant contended that details of the relationship had already been published in the media and this drew too much attention from the media and the sponsor did not like that. The applicant contended that the sponsor does not want to be a celebrity. The applicant contended that the sponsor told him that it was too much for her to deal with and that people had come to where she is living seeking interviews.
For the following reasons, the Tribunal declined the request that the hearing on 22 February 2024 be closed to the public.
Following the initial part heard hearing on 31 January 2024, the Tribunal decided it would not take oral evidence from the sponsor at hearing. As to the applicant and three witnesses he had called for the hearing, the Tribunal was unaware of any reasons that it would be impractical to take oral evidence from them in public and as a consequence found that the provisions of s 365(3) were not met and the hearing could not therefore be held in private on that basis.
The Tribunal considered whether the sponsor’s reported concern about her personal circumstances being discussed in the media and feeling like she is at risk of becoming a celebrity provide reasons why it would not be in the public interest to hold the hearing in public. The Tribunal understood the applicant’s contention to be that the sponsor expressed concern to the applicant as a consequence of media articles written following the initial part heard hearing on 31 January 2024. Of interest, the Tribunal notes that the initial hearing was, for reasons discussed above, adjourned part heard before any evidence was taken at hearing in relation to the parties’ relationship. As a consequence, any information about the parties’ relationship that appeared in the media following 31 January 2024 was provided by a source other than by an observer at the Tribunal hearing and that information is now clearly in the public domain.
In relation to the sponsor’s reported apprehension about further detail regarding the parties’ circumstances and their relationship appearing in the media, the Tribunal is reliant on the applicant for the indication that the sponsor held these concerns. In light of the visual and hearing impairments, and cognitive factors which appeared to constrain the sponsor’s awareness of what was occurring around her when she appeared before the Tribunal on 31 January 2024, the Tribunal is surprised the sponsor would be across topics appearing in current media outlets. The Tribunal is open to the possibility that such information may be to some degree conveyed to her by other people, such as the applicant. In relation to any such conversations, the Tribunal was satisfied that the applicant and other people with whom the sponsor has contact in her residential aged care setting could exercise their own discretionary judgment with regard to what information they endeavoured to convey to the sponsor during the course of their interactions with her.
As to the concern that people, presumably journalists, had attempted to interview the sponsor in her residential aged care setting, if this had occurred, it was as a result of information in the public domain and not as a consequence of Tribunal proceedings. Further to this, the Tribunal would be surprised if it were not the role of a residential aged care provider to have some oversight into who was seeking to visit residents and if appropriate take action to prevent residents becoming upset by the intrusion of unwanted visitors. The applicant was the sponsor’s appointed guardian with a range of decision-making functions and the Tribunal was of the view that it would be open to him to apply to the NSW Civil and Administrative Tribunal and seek guardianship powers having the function of deciding who has access to the sponsor, if he deemed this necessary to protect the sponsor’s wellbeing if it were the case that less formal mechanisms at the residential aged care setting were not adequate.
When considered both separately and cumulatively, the Tribunal was not satisfied the reported concerns held by the sponsor provided a sufficient reason for it to be in the public interest that the hearing on 22 February 2024 be held in private. As a consequence the provisions of s 365(2) of the Act were not met and the hearing was held in accordance with the usual procedure in relation to Part 5 (migration) reviews.
Prior to the third hearing listed for 17 May 2024, by way of an email on 8 May 2024 the applicant asked that the forthcoming hearing be held in private and in support of this request made the following comment:
The Member is aware that my case has garnered a significant amount of media attention, much more than the general exposure a witness may have from the public hearings. I am concerned this fact may impact their willingness to talk freely and openly about their evidence. Also, further privacy of witnesses will be disturbed if their statements are made public along with their identities.
On the occasion of the hearing on 17 May 2024, a member of the public who identified themselves as a journalist was present. Prior to taking evidence on this occasion the Tribunal invited any further comment from the applicant as to whether he would suggest there were reasons that it was in the public interest that the hearing on that date be closed to the public. In response, the applicant reiterated his request that the hearing be closed to the public due to his perception that the witnesses may be constrained in giving evidence during the hearing if the media were to be present, as their names and corresponding identities may be connected to their evidence. In support of this submission the applicant contended that the circumstances of his relationship with the sponsor had appeared in media articles both within Australia but also in a number of other countries.
In relation to whether it was in the public interest to close the hearing and take evidence from witnesses in private, the Tribunal also sought comment from the witnesses.
Ms Rubleuskaya told the Tribunal that she had not thought about the issue before being asked and that it was all the same to her if a journalist was present whilst she gave her evidence during the hearing. Ms Rubleuskaya noted that people could theoretically be distressed if their names appeared in the media and were subsequently discussed on social media platforms. The Tribunal enquired as to whether Ms Rubleuskaya suffered from a health condition, such as a stress-related mental health condition, which could be adversely affected by media attention such as referred to by herself or the applicant. In response Ms Rubleuskaya stated that whilst she tries to avoid stress-inducing situations, she is a level-headed person and has no health conditions which would be adversely affected by stress. Ms Rubleuskaya told the Tribunal that she would not be under stress if a journalist was present whilst she gave her evidence.
Ms Kuusk told the Tribunal that she would feel better if a journalist was not present whilst she gave her evidence during the hearing. She said that this was because she did not want to be publicly known and identified, as this would put her under stress. The Tribunal enquired as to whether Ms Kuusk suffered from health conditions, such as a stress-related mental health condition, which could be adversely affected by media attention such as referred to by herself or the applicant. Ms Kuusk informed the Tribunal that she had no such health condition.
Mr Gialdini told the Tribunal that he had no concern about a journalist being present whilst he gave his evidence during the hearing.
The Tribunal considered the submissions and comments made by the applicant and witnesses with respect to the hearing on 17 May 2024, but was not satisfied that it was established that there was a public interest reason as to why the hearing on that occasion be held in private. As a consequence the provisions of s 365(2) of the Act were not met and the hearing was held in accordance with the usual procedure in relation to Part 5 (migration) reviews.
BACKGROUND
The applicant is a national of Estonia and is 48 years old. He reports no previous interpersonal relationship prior to the claimed relationship with the sponsor.
The sponsor is deceased, having died on 13 April 2024 at the age of 104 years. Infection and Alzheimer’s disease are recorded as the cause of her death.[6]
[6] NSW Births, Deaths and Marriages death certificate, issued 23 April 2024.
The sponsor was born in Estonia and is reported to have come to Australia after the Second World War, arriving in 1948. She became an Australian citizen by grant in March 2016. The sponsor was married to the maternal grandfather of the applicant, from 1948 until the applicant’s grandfather died in 1987. The sponsor is reported to have met the applicant’s grandfather in Germany and they travelled to Italy together on a refugee boat and then to Australia where they married. There were no children from their marriage.[7]
[7] Psychologist assessment report prepared by Flora Truong, clinical and forensic psychologist, Healthy Minds Psychology, 13 January 2021 (pages 576–592 of the applicant’s submissions received 15 February 2024).
The applicant and sponsor (hereafter referred to as the parties) claim to have met for the first time in person in 1996 when the applicant made his first visit to Australia.
The visa application states that the parties commenced a de facto relationship with each other on 1 January 2013. The applicant was at that time 37 years of age and the sponsor was 92 years of age. The applicant was subsequently granted a Subclass 820 (Provisional) partner visa on 24 July 2017.
Evidence provided to the Department of Immigration and Border Protection (since that time incorporated into the Department of Home Affairs and in these reasons for decision referred to as the Department) in association with the visa application includes, but is not limited to:
·Commonwealth Bank (CBA) electronic fund transfer receipts, 2017–2018;
·Utility and telephone account invoices and related correspondence, 2016–2018;
·Receipts, sales orders and other financial documentation, 2017–2018;
·Enduring Power of Attorney (EPOA) appointing applicant as attorney, dated 13 February 2017;
·Appointment of Enduring Guardian appointing applicant as guardian of sponsor, dated 1 March 2017;
·Support letters and Form 888 witness support declarations, 2016–2018;
·Correspondence addressed to applicant and/or sponsor at a residential property in Calidore St, Bankstown (the Bankstown address), 2016–2018;
·Transcript of Academic Record for Certificate III in Spoken and Written English from TAFE NSW addressed to the applicant;
·Photographs;
·Statutory Declaration of the sponsor dated 14 March 2018;
·Statement of sponsor dated 6 March 2016;
·Skype call records September – December 2017.
Evidence provided to the Tribunal in association with the review application includes, but is not limited to:
·CBA transaction statement for applicant’s Smart Access account (**3064), 2018–2023;
·CBA transaction statement for applicant’s GoalSaver account (**1395), 2023;
·Westpac transaction statements for sponsor’s account (4645), 2018–2023;
·Westpac transaction statements for sponsor’s eSaver account (**1049), 2019–2020;
·Utility and telephone account invoices and related correspondence, 2020–2023;
·Health-related invoices, Medicare correspondence, Centrelink correspondence, bills, receipts, taxation-related documents and other financial documentation, 2018–2024;
·Documentation regarding the applicant’s superannuation;
·Doctors’ reports, assessments and related medical evidence pertaining to the sponsor and applicant;
·Psychological assessment report prepared by Flora Truong, clinical and forensic psychologist, Healthy Minds Psychology, dated 13 January 2021 (the HMP psychology report);
·Other correspondence evidence, invitations, cards, etc.;
·Photographs of the applicant and the sponsor with friends in various social settings 2016–2023;
·Support letters and Form 888 witness support declarations, 2020–2023;
·Flight booking confirmation for the applicant and sponsor dated 3 May 2019;
·Applicant’s Centrelink online profile information – undated;
·Statutory Declaration of the applicant, declared 24 January 2024;
·Further copy of EPOA appointing applicant as attorney dated 13 February 2017;
·Further copy of Appointment of Enduring Guardian Form appointing applicant as sponsor’s guardian dated 1 March 2017;
·Sponsor’s Wills – executed 5 July 2000, 9 March 2006, 2 August 2007, 17 July 2008, 2 October 2017;
·Applicant’s Will – executed 29 March 2017;
·Email from applicant dated 23 April 2024 regarding death of sponsor;
·NSW Births, Deaths and Marriages death certificate, regarding death of sponsor on 13 April 2024;
·Collated summary of payments made by the applicant for the sponsor – filed 16 May 2024.
The hearing on 31 January 2024

By way of placing in context the Tribunal’s decision to adjourn the initial hearing part heard, as part of progressing this matter to hearing the Tribunal, on 20 November 2023, emailed the applicant to clarify the parties’ circumstances and the sponsor’s capacity to attend an in-person hearing. In response, the applicant on the same date emailed the Tribunal stating that the parties’ relationship was ongoing but that the sponsor did not have the capacity to attend an in-person hearing as it would be too tiring for her.
The Tribunal subsequently listed a brief case management hearing by video, on 8 December 2023, to deal with procedural matters in relation to the review application and, in particular, to discuss whether the sponsor had a capacity to provide evidence regarding the circumstances of the parties’ relationship, and if so ways in which this may occur in a manner that was not harmful to her health or wellbeing. Following this, on 13 December 2023, the Tribunal wrote to the applicant and requested that he arrange for a letter from the sponsor’s treating geriatrician or general practitioner detailing: the sponsor’s current diagnosed medical conditions; opinion as to whether the sponsor has current cognitive capacity to give oral evidence in a Tribunal hearing, for a period of 15 to 30 minutes; and any factors which may constrain the sponsor’s ability to participate in a Tribunal hearing, either in person, or remotely by video.
On 13 December 2023, the Tribunal also sent the applicant a hearing invitation in relation to the hearing listed for 31 January 2024. Within the hearing invitation the Tribunal requested contact details for the sponsor so that if appropriate, the Tribunal could take evidence from the sponsor either in person, or if more appropriate, remotely. The Tribunal received a response from the applicant, on 21 December 2023, in which it was indicated the sponsor would appear in person at the hearing.
On 22 December 2023, the Tribunal received a letter from the sponsor’s treating general practitioner, Dr John Joshua Wan from the Glory Medical Care Practice in Bankstown, dated 19 December 2023. This letter indicated that amongst other medical conditions, the sponsor’s current and past medical history includes: cognitive impairment, anxiety and hearing impairment, glaucoma and macular degeneration. In relation to Dr Wan’s opinion as to whether the sponsor has current cognitive capacity to give oral evidence in a Tribunal hearing, for a period of 15 to 30 minutes, the doctor states that in his professional opinion the sponsor’s cognitive capacity can fluctuate quite significantly from day to day, and also can be affected by multiple factors such as her level of tiredness, heat and her ability to sleep at night.
In the letter Dr Wan reported that the sponsor scored 18/30 on the MMSE on 19 December 2023, with that score being indicative of a moderate level of cognitive impairment. Dr Wan opined that the sponsor’s capacity to participate in the hearing may also be affected by her advanced age and medical conditions. Dr Wan reported that the sponsor has a severe hearing impairment, general frailty, reduced concentration levels, fatigue/low energy levels and on some days she has difficulty staying alert and concentrating on conversations beyond a short period of time. Dr Wan opined that the sponsor’s memory has deteriorated compared to 12 months ago and that in regard to factors that may constrain her ability to participate in a Tribunal hearing, either in person or remotely by video, the sponsor’s hearing and vision impairment would be a severe barrier to her participating remotely by video. Dr Wan provided an overall opinion that the sponsor may attend the hearing, but her capacity to engage may be moderate, but also may be very limited, depending on how she is on the particular day.
On 31 January 2024, the Tribunal made the decision to adjourn part heard shortly after the hearing commenced. This decision was taken as, during the Tribunal hearing officer’s preliminaries and when I, as the Presiding Member, entered the hearing room, the sponsor appeared visibly agitated, distressed and not oriented to the proceedings. The sponsor repeatedly cried out ‘take me home’, ‘I want to go home’ and made incoherent noises which were in an agitated and distressed tone of voice. The sponsor did not respond to me in a number of attempts to introduce myself, engage her attention and clarify if she knew why she was at the Tribunal hearing, or was otherwise aware of her surroundings.
The applicant repeatedly contended that the sponsor’s hearing impairment was the issue and that she was otherwise fine and able to give oral evidence at hearing. This was not my impression, but out of an abundance of caution I moved from the rear to the front of the bench and sat beside the sponsor, with the applicant also sitting next to her so as to physically reassure her, and again attempted without success to engage the sponsor’s attention. The sponsor at this point continued to cry out in an agitated and distressed manner.
In response to this situation I, as the Presiding Member, formed the view that there was no benefit from further endeavouring to swear in the sponsor or take evidence from her. I formed the view that as a result of the impact of her cognitive, hearing and visual impairments, in conjunction with the anxiety affecting the sponsor, she lacked the capacity to provide oral evidence of probative value to the Tribunal in relation to the review application. Further to this the Tribunal took the view that it was not in the best interests of the sponsor to sit in the Tribunal waiting area in an anxious, confused and distressed state for the three hours set aside for the hearing, as the Tribunal was concerned this may adversely affect her physical or emotional wellbeing.
In these overall circumstances the Tribunal took the decision to adjourn the hearing part heard and for it to be relisted forthwith, without the requirement the sponsor appear as a witness.
CONSIDERATION OF CLAIMS AND EVIDENCE
What is the impact of the death of the applicant’s sponsor?
The criteria for the grant of the Subclass 801 visa are set out in Part 801 of Schedule 2 to the Regulations. They include the criterion in cl 801.221 which requires that at the time of decision the applicant meets the requirements of cl 801.221(2), (2A), (3), (4), (5), (6) or (8). These provisions include the requirement that the applicant is sponsored by a person with whom they are in a spousal or de facto relationship. Exceptions to the sponsorship requirement apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved.
In the unfortunate circumstances of this case the sponsor is deceased. As a consequence it is necessary for the Tribunal to determine whether one of the exceptions exist to the legislative requirement that in order to qualify for a Subclass 801 Residential Partner visa, an applicant needs to at the time of decision be sponsored by a person with whom they are in a spouse or de facto relationship.
Relevant to the current matter, cl 801.221(5) provides that:
(5)An applicant meets the requirements of this subclause if the applicant:
(a)is the holder of a Subclass 820 visa; and
(b)would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and
(c)satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.
Clause 801.221(5)(d), which had provided that an applicant meets the requirements of this subclause if the applicant has developed close business, cultural or personal ties in Australia, was repealed through the action of the Migration Amendment (Family Violence Provisions for Partner Visa Applications) Regulations 2024, which have the effect of, from 1 July 2024, removing the requirement for Subclass 820 and 801 visa applicants to have developed close business, cultural or personal ties to Australia in order to meet the death exception.
In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files and oral evidence provided by the applicant and witnesses at hearing. As discussed elsewhere in this decision record, the Tribunal does not have the benefit of oral evidence from the sponsor. This is because on the occasion she was brought to a hearing before the Tribunal on 31 January 2024 the Tribunal formed the view that due to the cumulative impact of impairments affecting the sponsor, she did not have the capacity to communicate in an effective and meaningful way with the Tribunal. The sponsor was unable to respond to questions put to her, or to make what comments she may have considered relevant to the circumstances of her relationship with the applicant.
The Tribunal would note that it did form the view that the applicant wanted the Tribunal to take evidence from the sponsor at hearing, however, whilst having regard to this factor, for reasons outlined in an earlier section of this decision record, the Tribunal exercised the power available to it under s 361(3) of the Act, which alleviates it from the requirement to comply with a request it take evidence from a witness. Further to this and whilst mindful of the way this could constrain the sources of information relevant to the issues under consideration in the review, the Tribunal decided that it would not seek oral evidence from the sponsor during any further hearings listed in association with the review. This was because the Tribunal did not consider it appropriate to put the sponsor through further potential distress and confusion due to the adverse impact this could cause to her health and wellbeing, and also because the Tribunal was not satisfied, due to the nature and extent of the impairments affecting her, as to the sponsor’s capacity to meaningfully communicate during any further hearings.
At a number of points during the hearings the applicant made contentions with regard to the sponsor’s views. That is, the applicant gave evidence and made contentions as to what the sponsor thought and felt. He did not tend to qualify his contentions by indicating that such and such was his understanding of what the sponsor thought or felt. Rather, the applicant conveyed what the Tribunal took to be clear assertions as to what the actual thoughts, feelings and motivations of the sponsor were in relation to a range of factors and circumstances. It is for the Tribunal to assess the evidence before it and contentions made with respect to that evidence. In relation to evidence given by the applicant regarding the thoughts, feelings and motivations of the sponsor, the Tribunal is not of the view that one person can definitely speak for another person, as each person’s thoughts and feelings are intrinsically internal phenomena. The Tribunal has taken the applicant’s comments and contentions to reflect his subjective interpretation of these factors, or a perspective he would want the Tribunal to take in relation to thoughts, feelings and motivations held by the sponsor prior to her recent death.
Concern with regard to the reliability of information provided by the applicant in support of his claims about the circumstances of his relationship with the sponsor
The concern held by the Tribunal is not that the applicant is motivated to remain in Australia as a permanent resident or citizen of Australia, as having any such motivation is not in and of itself necessarily a concern to the Tribunal. With respect to this factor, the Tribunal is guided by the Court in Re MILGEA and Dhillon [1990] FCA 144 where the Federal Court noted that:
People enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as 'community expectations'. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.
Concerns, which in the view of the Tribunal detract from the reliability of information put forward by the applicant in support of his claims with respect to his relationship with the sponsor include the following.
Reference to the connection between applicant and sponsor being other than a couple in a de facto relationship
In this matter there are both references to the connection between the applicant and sponsor being that between a couple in a de facto relationship or being that between a grandparent and grandchild. Whilst the Tribunal accepts there is not a biological connection between the parties, the sponsor was the widow of the applicant’s maternal grandfather. As the sponsor was not the biological mother of the applicant’s mother, there is not a biological connection between the parties. There is also not a connection between the parties which would regard them as being related by family for the purposes of s 5CB(2)(d) of the Act, as a connection between what could be construed as a step-grandparent and a step-grandchild does not fall within the definition of two persons related by family in s 5CB(4) of the Act.
However, given it is claimed that there was a connection between the parties from the time of the applicant’s first trip to Australia in 1996,[8] the Tribunal considers the way the nature of this connection is described to have significance in this matter. This is because in the view of the Tribunal it is necessary for the Tribunal to assess whether a transition to a state where the parties were a couple in a de facto relationship occurred from 1 January 2013, or whether the connection between the parties remained as it had been prior to that date.
[8] It is claimed there was contact by letter prior to the applicant’s first trip to Australia in 1996, being the sponsor’s response to a letter from the applicant enquiring about his grandfather’s circumstances in Australia and their subsequent exchange of Christmas cards. However, at hearing the applicant gave evidence that he did not regard there having been a connection between him and the sponsor from the time of this earlier written correspondence.
At hearing the Tribunal noted that the date upon which the parties commenced a de facto relationship marked a significant change in the nature of the parties’ relationship. The Tribunal explained that it was interested in understanding how the applicant characterised his connection with the sponsor at different points in the timeline of their relationship.
In response to the applicant seeking clarification of what the Tribunal meant by the term ‘characterised his connection,’ the Tribunal explained that by this term it meant how the applicant would describe or conceptualise the nature of the connection between himself and the sponsor. When asked to provide further clarification, the Tribunal noted that the applicant is referred to as the sponsor’s grandson in a number of the documents which he has filed with either the Department or Tribunal in association with the visa and review applications and that this was an example of how his connection to the sponsor is characterised in some of the documentation before the Tribunal. By way of response, the applicant gave evidence that he has never thought of himself as the sponsor’s grandson and that whilst the sponsor may have on occasion referred to him as ‘grandson’ what she meant by this is that he is the grandson of her deceased husband, not her grandson.
As previously discussed in this decision, the Tribunal does not have the benefit of oral evidence from the sponsor as to what she meant by references made by her to the applicant being her grandson. The Tribunal acknowledges the confidence with which the applicant on this and other occasions during the hearings informed the Tribunal what the sponsor meant by references to him being her grandson. The Tribunal does not however consider it appropriate to accept the applicant’s contentions uncritically with respect to this factor as in the view of the Tribunal one person cannot objectively know what another person may have ‘meant,’ especially when contending the ‘meaning’ other than what at face value would appear to be the meaning of references made about the applicant by the sponsor.
As to instances where the sponsor has referred to the applicant as her grandson the applicant is reported to have conceded this to Australian immigration officials in December 2018, where he is reported to have said ‘She (your sponsor) used to call me her grandson for some time, she only recently stopped calling me that.’[9] The information before the Tribunal contains references to the applicant being the grandson of the sponsor in four Wills executed by the sponsor on 5 July 2000, 9 March 2006, 2 August 2007 and 17 July 2008. In these instruments the applicant, along with his biological mother, are identified as beneficiaries and respectively described as the sponsor’s grandson and stepdaughter. The Tribunal has the view in an instrument of this type in which accuracy is important, it is noteworthy that the applicant and his mother were not identified as the grandson of the sponsor’s deceased spouse and the daughter of the sponsor’s deceased spouse. As such, the characterisation of the connection between the applicant and sponsor in these instruments does not in the view of the Tribunal support the applicant’s contention as to what the sponsor meant when referring to him as her grandson, with that contention being that he is the grandson of her deceased husband, not her grandson.
[9] Delegate’s decision record dated 20 December 2018 (page 3 of 35).
As to what the sponsor meant when referring to the applicant as her grandson, for the reasons outlined above, the Tribunal does not know, and acknowledges that in a 2017 Will the sponsor refers to the applicant as her de facto partner. The Tribunal considers it reasonable to surmise from this that the sponsor’s reference to the applicant in previous Wills was indicative of there being a connection to him other than as her de facto partner. It would also appear noteworthy that the sponsor, in the initial four Wills saw fit to differentiate between a ‘grandson’ and a ‘stepdaughter’ and the Tribunal has taken it that the sponsor did this intentionally and had in mind a connection which to her was a familial connection with a qualitive difference between that between a stepparent and stepchild. Whilst such a connection may not, as previously discussed, fall within the provisions of s 5CB of the Act and the Tribunal did not have the opportunity to talk to the sponsor about these instruments, this does not in the view of the Tribunal diminish the importance a person such as the sponsor may have deemed the connection with someone she chose to describe as her grandson to have.
As to how the applicant would characterise the connection between himself and the sponsor from 1996 to January 2013, when it is contended that the parties made the decision to become a de facto couple, at hearing he gave evidence that for him, the sponsor was the wife of his deceased grandfather and that for the sponsor, he was her late husband’s grandson. In the view of the Tribunal, this is not entirely consistent with information previously given by the applicant where he stated the sponsor had in December 2018 only recently stopped from time to time referring to him as her grandson. At hearing, the applicant emphasised that he and the sponsor were not blood relations and that he had not experienced any actual relationship with his grandfather, as there was no communication between them at any stage of the applicant’s life. The Tribunal accepts the applicant did not have contact with the deceased spouse of the sponsor, his maternal grandfather, but does not consider this precluded a close connection between the parties whereby the sponsor considered him to have the status of a grandchild. In making this finding, the Tribunal is of the view that how people define their connection to others and place significance on those connections is not defined by the law, unless those connections require testing by legislative requirements, such as may be the case in the current visa-related matter. The relevance of such considerations in the current matter is that the applicant contends there was a transition in his connection with the sponsor such that they commenced a genuine and continuing de facto relationship on 1 January 2013 and for the Tribunal to be satisfied this took place it considers it to be relevant that there be indications of aspects of the parties’ relationship that are not merely a continuance of how the relationship was prior to the date on which it is claimed a de facto relationship commenced on 1 January 2013.

In light of the applicant’s consistent evidence that the parties commenced their de facto relationship in January 2013, the Tribunal asked the applicant at hearing why he had, when interviewed by immigration officials and asked the purpose of his return to Australia in October 2013, some 10 months later, said that the purpose of his trip was to visit his grandmother. By way of response, the applicant gave evidence that he just said that because the sponsor called him ‘grandson’. The Tribunal does not consider this to be a satisfactory explanation. The question put to the applicant by Australian immigration officials was not ‘how does Elfriede Riit refer to you,’ it was regarding the purpose of the applicant’s trip to Australia. The applicant is by his own admission an experienced lawyer and the Tribunal is satisfied it can take it that as such the applicant is aware of the need to be truthful and accurate when responding to questions put to him by government officials such as Australian immigration officers. The Tribunal does not accept the contention that an action by the sponsor, being the way she referred to the applicant, adequately explains the choice made by the applicant when responding to questions put to him in October 2013 by Australian immigration officers. The question, in the view of the Tribunal therefore arises, is whether the applicant’s statement to Australian immigration officials was truthful and accurate and if so, what concern does this raise.
When asked at hearing why he had not described the sponsor as his partner when interviewed by the Australian immigration officials in October 2013, the sponsor said it was because he was scared that they would discriminate against him. The applicant contended that the parties had been subjected to discrimination because of the difference in their ages. However, the applicant did not particularise in what way he feared Australian immigration officials may have discriminated against him, or provide examples of specific instances in which he and the sponsor had been subjected to discrimination because of the difference in their ages. No such circumstances are referred to in the detailed statutory declaration prepared by the applicant in January 2024. In this document whilst discussing people’s possible perceptions about the significant difference in ages between the parties, the applicant does so in terms of hypothetical perceptions people may have regarding his motivation for entering into the relationship[10] and not as to ways the parties or a hypothetical couple where there is a significant age difference are discriminated against. Indeed elsewhere in this document the applicant in discussion of the progression of his relationship with the sponsor declares ‘our relationship has moved in a straightforward manner, and has been relatively uncomplicated.’[11]
[10] Applicant’s statutory declaration signed 24 January 2024 (paragraph 100).
[11] Ibid (paragraph 27).
The Tribunal is aware of the concern the applicant and reportedly the sponsor had about media coverage in 2024 regarding the circumstances of their relationship, however the Tribunal is not satisfied this would have influenced the applicant’s choice of how to respond to a question put to him by Australian immigration officials over a decade earlier regarding the purpose of a trip made by him to Australia in October 2013.
In the view of the delegate the applicant’s failure, when questioned by the immigration officials upon his arrival in Australia on 24 October 2013, some 10 months after the claim the parties commenced a de facto relationship, to declare that he was intending to visit his de facto partner indicated that the applicant himself viewed the existence of a de facto relationship between the parties to be implausible. The Tribunal is open to this possible explanation and to the applicant’s claim he was ‘scared’, but considers there is another possible explanation, namely that the applicant gave a truthful and accurate response to the question put to him and that at that time he regarded the sponsor as a grandparent figure, rather than as a person with whom he was in a genuine and continuing de facto relationship.
When asked at hearing whether at that time in October 2013 he regarded the sponsor as his grandmother, or whether, by saying that visiting his grandmother was the reason for his return visit to Australia he was seeking to mislead Australian immigration officials and misrepresent the nature of his connection to the sponsor, the applicant gave evidence that he did not at that time in October 2013 view the sponsor as his grandmother. Taken at face value this presents as an incident where the applicant has conceded that he knowingly sought to deceive immigration officials and misrepresent the nature of his connection to the sponsor. As such, in the view of the Tribunal this gives rise to concern as to whether information provided by the applicant in support of his claims about his relationship with the sponsor can be relied upon. However the Tribunal is not persuaded the applicant’s claim as to why in October 2013 he gave visiting his grandmother as the purpose of his visit to Australia is made out. The Tribunal considers this to give rise to concern as to the reliability of the claim that the parties had, as is claimed, commenced a de facto relationship in January 2013.
The Tribunal’s review of the available information indicates that circumstances where the applicant is represented as the partner, de facto partner or de facto spouse of the sponsor include the following:
·Sponsor NSW Births, Deaths and Marriages death certificate, issued 23 April 2024;
·In association with the HMP psychology report of Ms Flora Truong;
·Last Will and testament dated 29 March 2017;[12]
·Bankstown Uniting Centre – sponsor resident profile;
·Witness support declarations and evidence at hearing;
·Letter of Dr Jeanne Du Toit dated 28 August 2020.
·Suncorp Superannuation beneficiary information;
[12] Registered with the Public Trustee NSW.
The Tribunal acknowledges information provided by the applicant to the following entities identified the parties as de facto partners: NSW Births, Deaths and Marriages; Public Trustee NSW; Suncorp Superannuation; and Bankstown Uniting Centre. However the weight given by the Tribunal to these entities is limited by the lack of independent assessment undertaken by these entities of claims made by persons as to their relationship status.
Witness support declarations and evidence at hearing
With respect to witness support declarations prepared by Ms Kuusk and Mr Gialdini, the delegate found that they made similar generic claims and provided limited details regarding why they consider the relationship between the parties was genuine.
In association with the visa application, the applicant has filed a number of witness support declarations. These include a handwritten declaration prepared by Lea Steinbach dated 7 September 2020. Ms Steinbach states her opinion that the parties’ relationship is genuine is based on her observations of the parties together and from the sponsor telling her frequently how lucky she is to have the applicant as her partner. However Ms Steinbach also states that the sponsor told her that the applicant was her ‘late husbands grandson.’ In providing reasons for her opinion, Ms Steinbach highlighted the support provided by the applicant to the sponsor when she was in hospital and how this was reciprocated when the applicant himself was briefly hospitalised.
A declaration prepared by a friend of the applicant from Estonia, Mr Tarmo Hellat, dated 2 November 2020 states that he has visited the sponsor in Australia on a number of occasions, including in the company of his mother. Mr Hellat refers to the sponsor as the applicant’s partner and gives the opinion that the parties are in a genuine relationship. Mr Hellat notes that the sponsor appears to be a bit of a recluse as she doesn’t like to go out much and that the applicant is very supportive towards the sponsor ‘in all things’. Mr Hellat saw fit to emphasise that ‘I have no doubts that after [the applicant] settles in Australia their committed relationship won’t change but will continue as it is become for now.’
A further declaration from Mr Hellat, dated 25 May 2023, reiterates the opinion that the parties are in a genuine relationship and explains he had by that date visited Australia six or seven times since an initial trip in 2020 and on each occasion visited the sponsor. In this declaration Mr Hellat expresses concern regarding the admission of the sponsor into residential aged care due to what appears to be Mr Hellat’s perception this may not have been necessary and may detract from the perception of the genuine commitment the applicant has towards the sponsor’s welfare. Mr Hellat evidenced this commitment through referencing the assistance the applicant provides the sponsor in changing the batteries for her hearing aid.
A written statement from Ms Viive Soeson, the applicant’s mother, dated 30 May 2023, states that she had not met the sponsor in person, as she has not visited Australia, but that she had spoken to her over the phone. Ms Soeson makes reference to the sponsor being her son’s wife, rather than de facto partner. The Tribunal does not consider this descriptive term to be problematic as it may be due to cultural factors. Ms Soeson states her opinion that her son’s relationship with the sponsor is genuine and provides a quite detailed description of support provided to the sponsor by the applicant, including his role in assisting to change her hearing aid batteries.
As to evidence provided by witnesses at hearing, the Tribunal noted that there was an element in the content of the witnesses’ evidence, whether at hearing or in declarations prepared by them, which appeared rehearsed and at times duplicated. The emphasis on certain points across the witnesses’ evidence, as discussed in further sections of this decision, has influenced the Tribunal’s view regarding this factor.
When considered both separately and cumulatively, the Tribunal considers it appropriate to give some positive weight to the witness support in this matter, however the Tribunal’s assessment of this material has given rise to concern regarding the extent of duplication which is apparent in the material and the extent to which some of the witness evidence at hearing appeared rehearsed. The concern the Tribunal has, which has influenced the weight accorded to this material, is that the opinions expressed by the witnesses may not reflect the unique views of the respective witness, but rather an agreed range of points to highlight in either written witness support declarations, or in witness evidence at hearing.
Medical evidence
Whilst it is for the Tribunal to determine, for the purposes of the application for the Subclass 801 visa, if the applicant was in a genuine and continuing de facto relationship with the sponsoring partner and would continue to be so but for the death of the sponsoring partner, the Tribunal has given consideration to the information contained in documents prepared by health professionals. This is because the Tribunal is satisfied references to the nature of connection between people made by health professionals in reports would be made on the basis of their training and expertise. The Tribunal is satisfied this is the case, whether these be the opinion sought from Ms Truong, or of health professionals who assessed the sponsor’s medical condition and/or care and support needs.
The Tribunal has not had the opportunity to test at hearing the information or opinions provided by the health professionals and has taken this into account when attributing weight to this material. In general, the Tribunal considers there to be a qualitative difference between indications of how the connection between the applicant and sponsor were represented within, or external to the context of the visa and review applications. That is, the Tribunal considers the manner in which the applicant and/or sponsor represented themselves or were viewed by people outside of the migration context, such as health providers, is likely to provide a more authentic picture of this representation factor than how the connection between the applicant and sponsor is represented in situations which are more directly focussed on the applicant’s visa uncertainty. In forming this view the Tribunal assesses the applicant to be a person with a strong motivation to achieve permanent residency in Australia, but does not view this to be an inherently problematic factor if the evidence otherwise demonstrates the parties’ relationship was, until the death of the sponsor, genuine and continuing. The Tribunal rather considers the assessment of health professionals undertaken outside of the visa context to be less potentially influenced by that context.
Letter prepared by Dr Du Toit
In the letter by Dr Du Toit the doctor states that the sponsor is their patient and that the doctor is aware the parties are in a de facto relationship and whilst no information other than this brief sentence is contained in this document, the Tribunal acknowledges the doctor’s opinion but is mindful of a lack of clarity as to upon what basis this opinion was formed. The Tribunal has nonetheless given some weight to this document.
The HMP report
The report of Ms Truong indicates that she undertook an assessment of the parties’ relationship in December 2020 at the request of an immigration lawyer who was at that time assisting the applicant. The assessment was prepared in the context of the Department’s refusal of the applicant’s Subclass 801 partner visa, with documentation provided in association with the request for the report including a copy of the delegate’s decision record. The history and information about the circumstances of the parties and their relationship which is referred to in the report is broadly consistent with that contained in statements and declarations filed with either the Department or Tribunal in association with visa and review applications. In the conclusion section of the report Ms Truong wrote:
Conclusion
78. Although their relationship appears unusual by conventional standards, based on this assessment, I believe that their relationship extends beyond that of grandmother-grandson or carer relationship. Their relationship demonstrates mutual care and genuine interest in each other. The couple share a strong commitment towards each other in sharing their life, to the degree of enmeshment whereby they spend most of the day and do most activities together to the exclusion of all others.
In response to specific factors Ms Truong was asked to comment on, she wrote the following:
Terms of Reference
80. You requested that the following terms of reference be addressed specifically in this report:
• Your commentary as to their presentation at the consultation and your professional opinion/commentary thereon as to them respectively as well as how they present as a couple: [the applicant and sponsor’s] presentations are outlined in detail respectively above the sections entitled “Presentation.” More specifically, [the sponsor] had limited capacity to respond participate meaningfully in her interview due to her hearing impairments. [The sponsor] was severely anxious and dependent on [the applicant] for support which was seemingly understood by [the applicant] as can be seen in his caring response to her needs.
• To the extent which you are able to, comment on whether in your view, [the applicant] and [the sponsor] are in a genuine and continuing de facto partner relationship (and provide examples of why you believe this to be the case). Based on this assessment, I am convinced that [the applicant] and [the sponsor] are a genuine and continuing defacto couple that care and love each other. They showed a strong degree of commitment to one another and are invested in sharing a life together. I have outlined in more detail as to my opinion in the above section titled “Opinion.”
The Tribunal is satisfied that in December 2020, in relation to an assessment with a clinical and forensic psychologist arranged for the purpose of gathering evidence in support of the review application, the applicant presented as the de facto partner of the sponsor. It is less clear to the Tribunal, due to the reported difficulties Ms Truong experienced communicating with the sponsor, the extent to which the sponsor presented as the de facto partner of the applicant rather than as a frail elderly person displaying a strong dependency on the applicant. The Tribunal is however mindful that the latter does not exclude the possibility of the former and the Tribunal has made the aforementioned observation due to the lack of what it would deem to be the clear ‘voice’ of the sponsor, expressed to the report author in a form which is not to a lesser or greater extent interpreted or represented by the applicant.
Noting that a specific opinion sought from Ms Truong was her view as to whether the parties were in a genuine and continuing de facto partner relationship, the Tribunal perceives nothing untoward with regard to such a question. However, it is important to note that it is for the Tribunal to determine whether the relevant legislative criteria are met and as such, whether an opinion, such as that provided by Ms Truong, is of potential benefit to the Tribunal in its deliberations to the extent it is deemed by the Tribunal to have probative value. Having made this observation, the Tribunal is satisfied that Ms Truong has provided a basis on which she expressed her opinion regarding the parties’ relationship. The Tribunal has accordingly given some weight to this evidence.
March 2020 Occupational Therapy report of Nhung Huynh
References to the applicant being the grandson of the sponsor appear in an occupational therapy report prepared in March 2020.[13] Examples of which put to the applicant at hearing from this report for his comment included, but are not limited to:
·‘Contact: Mart (grandson)’
·the sponsor ‘lives in her home with her grandson Mart’
·‘Present at Assessment: occupational therapist – [name supplied], allied health assistance – [name supplied], client, grandson.’
·‘Social Supports – lives with: grandson’
·‘Long-term modification needs: … Grandson to install additional peak for handheld shower hose to increase client safety and independence with using same, grandson to change existing shower curtains to reduce water coming out of the shower recess…’
[13] Occupational Therapy report, Southwestern Sydney local health district, dated 31 March 2020, applicant’s submissions received 15 February 2024.
At hearing, the Tribunal invited the applicant to respond to concern arising from the references in the occupational therapy report to him being the sponsor’s grandson. This concern being that the assessment of a health professional, such as the occupational therapist, in the context of the parties’ day-to-day life in 2020 where the focus was not upon the applicant’s visa application but rather on the home environment of the sponsor, is that the connection between the applicant and sponsor was that between a grandchild caring for their grandmother, rather than that between a couple in a de facto relationship. By way of response the applicant contended that the occupational therapist had not asked about the parties’ relationship and he does not remember discussing this factor with the occupational therapist. The applicant contended that the occupational therapist just assumed that he was the sponsor’s grandson.
The Tribunal did not find this contention persuasive as the Tribunal considers it implausible that in an assessment of the sponsor’s home situation and support needs, as would be undertaken by a health professional such as an occupational therapist, the connection between members of the household and the subject of the assessment would not be discussed and assessed by the occupational therapist. In forming this view the Tribunal is aware that the scope and purpose of the occupational therapy report is in relation to the sponsor, not the applicant, for it is an assessment of the sponsor’s care and support needs on discharge from hospital. However, references such as those quoted above, encompass: who is the appropriate contact person, who was present during the assessment, what social supports are available to the sponsor and who lives with the sponsor. The Tribunal is not satisfied the applicant’s claim the occupational therapist made assumptions in relation to these factors is made out, as they would appear to be core factors to be assessed and understood in the type of discharge planning assessment undertaken by the occupational therapist.

The Tribunal considers the references to the applicant being the grandson of the sponsor in the occupational therapy report prepared in March 2020 give weight to a contention that this is the way the connection between the parties was presented to this medical specialist.
November 2019 Geriatrician report of Dr Fiona Tran
References to the applicant being the grandson of the sponsor appear in a report prepared in November 2019 by a geriatrician from the South Western Sydney Local Health District.[14] This report states that the sponsor ‘was accompanied by her grandson, Matthew, who is her main carer.’
[14] Geriatrician report, South Western Sydney local health district, dated 11 November 2019, applicant’s submissions received 15 February 2024 (pages 594–595).
At hearing the Tribunal invited the applicant to respond to the concern arising from this and other references to the applicant being the sponsor’s grandson in the geriatrician report, as this appears to be a further example of how the connection between the applicant and sponsor was assessed in circumstances where the focus was upon the everyday circumstances of the sponsor, rather than upon the applicant’s visa application. The Tribunal invited the applicant to comment as to why the Tribunal should not place weight on the view formed by a medical specialist, such as a geriatrician, on the basis of information given by either the applicant or the sponsor. By way of response the applicant pointed out that the geriatrician got his name wrong, referring to him as ‘Matthew’ rather than ‘Mart’ and further to this contended that the geriatrician made an assumption that he was the sponsor’s grandson. For reasons similar to that discussed in relation to the occupational therapy report, the Tribunal was not persuaded by this contention. The Tribunal considers the error made regarding the applicant’s name to be of a minor nature which does not establish a reason to otherwise discount or disregard the contents of this document, or of the basis on which the geriatrician has formed a view as to the connection between the parties.
The Tribunal considers the references to the applicant being the grandson of the sponsor in the geriatrician report prepared in November 2019 give weight to a contention that this is the way the connection between the parties was presented to this medical specialist.
April 2020 Australian Government Aged Care Assessment Team (ACAT) assessment summary
The Tribunal noted that in an April 2020 ACAT assessment summary[15] there are references to the applicant reporting that he is under a lot of stress due to his caring role but it is not mentioned that the applicant is the sponsor’s partner. By way of response the applicant emphasised that whilst he has looked after the sponsor, he is not and has not been the sponsor’s formal carer, as he has not been paid to perform this role.
[15] ACAT assessment summary, Australian government – My Aged Care, generated 17 April 2020, applicant’s submissions received 15 February 2024 (pages 608–609).
The Tribunal is mindful that whilst there was not a reference to the applicant being the de facto partner of the sponsor in the ACAT assessment summary, there is also no reference to him being the grandchild of the sponsor, or to her being his grandmother, step or otherwise. The Tribunal is mindful that assessing whether or not the applicant had a carer/care receiver connection to the sponsor is not the test it is applying in this matter. The relevant test, in part, is whether the evidence establishes that the applicant would be assessed as being in a de facto relationship with the sponsoring partner, except that the sponsoring partner has died; and would have continued to be the de facto partner of the sponsoring partner if the sponsoring partner had not died. The Tribunal has not therefore attributed weight, positive or negative, to the ACAT assessment summary, as an indication of the relationship status of the parties. This is because whilst a carer/care receiver relationship can be present in a genuine and continuing de facto relationship, it is not solely a feature of this type of relationship. It can be a feature between two people in a range of other relationship contexts.
March 2023 Bankstown Uniting Care care plan review
In a Bankstown Uniting Care care plan review regarding the sponsor, dated 1 March 2023, there are references to the sponsor’s family and friends and to the applicant being a person with whom the sponsor would like to maintain contact. In an extract from a Bankstown Uniting Care resident profile detailing the primary contact for the sponsor the applicant is identified as ‘Partner’. On the basis of this evidence the Tribunal is satisfied the applicant was identified as the sponsor’s partner within the residential aged care centre to which she was admitted in September 2022. The Tribunal has given positive weight to this evidence.
Comment on reference to the connection between applicant and sponsor being other than a couple in a de facto relationship
The Tribunal’s review of the material before it leads it to consider there are indications that the connection between the parties is that of a couple in a de facto relationship, but also that the nature of their connection, in more recent times than the claimed date on which a de facto relationship commenced, was understood by health professionals to be that between a grandparent and grandchild. The Tribunal is not satisfied the applicant has provided convincing reasons as to why the health professionals formed their view on the basis of erroneous assumptions. The Tribunal is mindful that Dr Du Toit provides a contrary view but given the brief nature of Dr Du Toit’s letter, literally one brief sentence, the Tribunal has not given this document the weight it has given to the more comprehensive reports of Ms Truong, Ms Huynh or Dr Tran. With respect to the report of Ms Truong, the Tribunal accepts this psychologist opines that the parties are in a partner relationship, however for reasons discussed above, the Tribunal gives more weight to the reports of the occupational therapist Ms Huynh and the geriatrician, Dr Tran, who refer to the applicant as the grandson of the sponsor, rather than as her de facto partner.
The Tribunal is satisfied that there is witness support which refers to the parties being a couple in a partner-type relationship. The Tribunal has given this some positive weight, albeit limited somewhat by the extent of duplication and rehearsal which it perceives in this material.
The Tribunal is not satisfied the applicant has adequately explained why he stated his reason for his trip to Australia in October 2013, some 10 months after the claimed commencement of the parties’ de facto relationship, was to visit his grandmother not his partner.
For reasons the Tribunal has outlined, it is not persuaded the applicant is in a position to explain what the sponsor meant when referring to him as her grandson. The Tribunal notes there are documents where she has so referred to the applicant and evidence from the applicant that she had in December 2018 only recently ceased doing so from ‘time to time’. The Tribunal is also mindful that in a written statement signed by the sponsor on 6 March 2016 there is reference to the parties being in a de facto relationship.
The relevance which the Tribunal places on references to the applicant being the grandson of the sponsor is that the Tribunal is of the view that one cannot plausibly be a couple in a de facto relationship where there is a grandparent–grandchild relationship between the two people, albeit one that does not meet the particular provisions of s 5CB(4). The Tribunal has no difficulty accepting a strong connection existed between the applicant and sponsor. The material before the Tribunal indicates that this was demonstrably the situation. The Tribunal is satisfied this connection commenced in or around 1996 and continued to the time of the sponsor’s death in April 2024. The concern of the Tribunal is as to whether a genuine and continuing de facto relationship between the parties commenced on 1 January 2013, or whether there was rather a continuance of a relationship of another type. The Tribunal considers there to be sufficient instances where the applicant is described as the sponsor’s grandson to give rise to concern that that circumstance was the case.
The relevance of whether the parties commenced a de facto relationship on 1 January 2013, or whether there was rather a continuance of a relationship of another type is if the Tribunal found the former claim to be unreliable, it would in the view of the Tribunal call into question the general reliability of information provided by the applicant regarding the circumstances of his relationship with the sponsor, including those as at the time of her death in April 2024.
Centrelink
With respect to how the sponsor’s relationship status was portrayed to Centrelink, the available information is that it remained as ‘widow’, that is, not ‘partnered’, until after this factor was put to the applicant as a concern by the delegate. A Services Australia document states that Centrelink was informed on 17 December 2018 that the sponsor had been partnered to the applicant from 24 July 2017.[16] The Tribunal has taken 17 December 2018 as the date on which Centrelink was notified of a change in the sponsor’s relationship status from ‘widow’ to ‘partnered’ and that this date is congruent with a view the notification occurred after interaction between the applicant and the delegate for the Minister. The relevance of this, in the view of the Tribunal, is that the notification of a change in the sponsor’s relationship status was likely prompted by the applicant seeking to resolve an evidentiary concern rather than for another reason.
[16] Correspondence from Services Australia addressed to sponsor dated 1 September 2022.
In discussion of this factor the delegate noted the applicant’s contention that neither he nor the sponsor were aware that it was a requirement for the sponsor to have notified Centrelink of a change in her relationship status. The delegate did not accept this explanation, noting that all Centrelink benefit recipients were regularly reminded of a requirement to update any changes to their circumstances.
At hearing the Tribunal noted that whilst the parties claim they had been in a de facto relationship since January 2013 and that the applicant had applied for the Partner visa in March 2016, the Services Australia document indicated that Centrelink was informed that the sponsor had been partnered from 24 July 2017.[17] By way of response the applicant said all of this occurred after he gave Centrelink a lot of documents. The applicant did not otherwise provide an adequate explanation as to why Centrelink would not have been advised as far back as January 2013 that the sponsor’s relationship status had changed, given it is claimed that is when the parties’ de facto relationship commenced. The applicant also did not explain or comment on why 24 July 2017, some four and a half years after the date on which the applicant has elsewhere claimed he and the sponsor commenced their de facto relationship, was identified as the date on which the sponsor’s relationship status changed from ‘widow’ to ‘partnered’. The Tribunal is aware that 24 July 2017 was the date on which the applicant was granted a Subclass 820 (Provisional) Partner visa, however this does not explain why this date given to Centrelink as the date on which the sponsor’s circumstances changed and that she was no longer a widow as she had commenced a de facto relationship with the applicant.
[17] Correspondence from Services Australia addressed to sponsor dated 1 September 2022.
The Tribunal is aware of evidence given at hearing by a witness called by the applicant, Mr Gialdini, who informed the Tribunal that he gave the applicant some assistance at a time he was dealing with Centrelink, due to the applicant’s lack of understanding of Australian law. The Tribunal did not find this contention persuasive, given the applicant is a lawyer, albeit with qualifications and experience from a country other than Australia, who felt competent to take on the roles of guardian, attorney and Centrelink nominee for the sponsor. With respect to this factor the Tribunal shares concern held by the delegate that a contention of ignorance of the requirement to notify a change in circumstances is most unlikely given the need to do so is highlighted frequently in Centrelink correspondence. The Tribunal is satisfied that as a lawyer the applicant would understand the need to provide accurate and truthful information to Centrelink. As to any contention that the sponsor would not have understood her responsibilities to Centrelink with respect to notifying changes in her circumstances, the applicant has elsewhere reported the sponsor declined to accept rent from him during periods he stayed with her on his trips to Australia out of a fear this would affect her Centrelink age pension.[18] In the view of the Tribunal such a fear would be based on an awareness of Centrelink notification requirements and does not give weight to any suggestion the sponsor may have been unaware she should report changes to her circumstances to Centrelink.
[18] Report of Flora Truong, HMP, dated 13 January 2021 (page 6, paragraph 24).
The failure to declare a changed relationship status to Centrelink, taken at face value, would suggest this was a true reflection of the sponsor’s circumstances, that is, she was not partnered to the applicant or any other person at the time it is claimed the parties commenced a de facto relationship in 2013. In the alternative, over the period from which the parties claim to have commenced a de facto relationship in 2013 until December 2018, the sponsor’s relationship status was misrepresented to Centrelink.

100. The Tribunal considers the sponsor’s status with Centrelink as a ‘widow’ until notified by the applicant on 17 December 2018 of a change in the sponsor’s relationship status to ‘partnered’ raises concern the parties did not commence a de facto relationship as claimed on 1 January 2013. The identification of 24 July 2017 as the date on which the sponsor’s relationship status changed from ‘widow’ to ‘partnered’ in the view of the Tribunal casts further doubt on the reliability of the claim the parties’ de facto relationship commenced on 1 January 2013. The Tribunal has further concern that the applicant’s notification on 17 December 2018 of a change in the sponsor’s relationship status was prompted by this factor being raised by the delegate in the context of the Partner visa application and motivated by the applicant’s endeavour to resolve an evidentiary concern.
Did the parties commence a de facto relationship on 1 January 2013?
101. The Tribunal has reviewed the available evidence in light of the concern held by the Tribunal that the parties did not as claimed commence a de facto relationship on 1 January 2013 and that the nature of their relationship continued from that date to be what it had been prior to that date. In doing so the Tribunal notes there is no time of application requirement such as there is to meet required criteria for a provisional partner visa.[19] However the claim as to the January 2013 de facto relationship commencement date is emphasised in material the applicant has filed in relation to the visa and review applications, and if the Tribunal was to find this claim is not made out it would in the view of the Tribunal call into question the general reliability of information provided by the applicant. If the Tribunal was not to be satisfied there is sufficient probative evidence to find the de facto relationship commenced on 1 January 2013, it may also have relevance to consideration as to whether the requirements of reg 2.03A are met, as in this matter there is no evidence that the relationship was registered under a relevant State or Territory law or that the applicant held, holds or is applying for a permanent humanitarian visa, so in the event the Tribunal found the requirements of s 5CB(2) and cl 801.221(2)(c) were met, the 12-month requirement in reg 2.03A would need to be met.
[19] cl 820.211 of the Regulations.
102. The Tribunal has reviewed the available evidence in order to consider whether it supports the claim regarding the parties commencing a de facto relationship on 1 January 2013.
103. In his statutory declaration the applicant declares that he first met the sponsor during his initial trip to Australia in 1996. He states that he saw her again when he visited Australia in 2000 and 2007 and then on an annual basis over the Australian summers of 2008/09, 2009/10, 2010/11, 2011/12 and 2012/13. He declares that the sole purpose of his trips to Australia between the summers of 2008/09 and 2012/13 was to see the sponsor. The applicant declares that it was during the latter trip that the sponsor began expressing her feelings of love for him and then, on 1 January 2013, suggested they commit to a life together as de facto partners. The applicant declares he told the sponsor that he also loved her and that on the same day they ‘went out to lunch together for the first time as an official, committed couple in a serious romantic relationship’ and also started having serious conversations about the future of their relationship and began planning how to be together permanently.
104. In his statutory declaration the applicant declares that notwithstanding the parties’ wish he not leave her in January 2013, there was a need for him to return to his home country to rearrange his affairs, which both he and the sponsor were aware ‘could take years to do’. The applicant continued to travel to Australia on an annual basis and was onshore in the period leading up to the time of application in March 2016 in the following periods:
·24 October 2013 – 21 January 2014 (89 days)
·11 December 2014 – 11 March 2015 (91 days)
·11 December 2015 – 15 June 2016 (87 days to date of visa application).

105. In his statutory declaration the applicant declares that he eventually moved in permanently with the sponsor in September 2018.
106. At hearing the applicant gave evidence about a concern held by the delegate as to apparent inconsistency given when interviewed in December 2018 and information previously provided by him to the Department in May 2017, about reasons he had resided separately from the sponsor overseas for almost 18 of the 33 months from when the visa application was lodged in March 2016. The applicant explained there was no inconsistency as a need for him to be in Estonia in 2017 was both a requirement he be a witness in court proceedings there and also ill health affecting his mother, with the latter factor also impacting his mother in 2018. The Tribunal is satisfied the applicant has provided a plausible explanation for this apparent inconsistency but notes it is not directly pertinent to consideration of whether the parties commenced a de facto relationship on 1 January 2013 and the related consideration of whether there is evidence that the parties were in a genuine and continuing de facto relationship 12 months prior to the date on which the visa application was lodged on 7 March 2016.
107. With respect to the information that is before the Tribunal, there is no material that is contemporaneous to January 2013.
108. In his statutory declaration the applicant contends that when he was in Estonia closing up his affairs he continued to pay for the electricity in the Bankstown residence owned by the sponsor and that she paid for all other bills for the home, as the applicant was also bearing the costs of his living expenses in Estonia. It is not apparent from when the applicant claims to have commenced paying for the electricity in the Bankstown residence. The earliest banking records supplied by the applicant in association with the visa and review applications are from 2017.[20] With respect to the electricity account, there is documentation which shows an Energy Australia account for the Bankstown residence in the sponsor’s name was placed in the name of both the applicant and sponsor on or around 15 April 2016.

198. The 2023 written statement attributed to the applicant’s mother makes an indirect reference to this issue in discussion of the significant difference in ages between the parties and suggests that the applicant may be a ‘sapiosexual’, which the Tribunal understands to refer to a person who considers intelligence the most sexually attractive quality in a partner. Given the applicant has indicated there was no sexual intimacy in the parties’ relationship and that this was a topic never discussed between the parties, the Tribunal does not consider the claim made by the applicant’s mother that the applicant found the sponsor’s intellect sexually attractive is made out.
199. In relation to the issue of sexual intimacy, in light of the applicant’s indication that it was not a topic ever discussed by the parties, or one that he had thought about, the Tribunal considers this circumstance, where the issue was never discussed, to not be reflective of a couple with a high degree of companionship.
200. In relation to the age factor, namely the 55-year difference in ages, the Tribunal has noted the comment by the applicant’s friend from Estonia, Mr Hellat, who stated the applicant was comfortable associating with elderly people, such as a coach who was also in his nineties. The Tribunal does consider a relationship where there is an age difference of the extent present in the parties’ relationship to be unusual and not just due to the respective genders of the applicant and sponsor. However the Tribunal does not consider the age difference to mean there could not be a genuine and continuing relationship between the applicant and the sponsor.
201. Witness declarations emphasise the close and supportive relationship between the parties and the extent to which the sponsor would become anxious and worried if the applicant was not at her side, for example, she would get anxious and panicky if he was even in a different room of the Bankstown residence. Photographic evidence provided in support of the applicant’s claims portrays a sense of comfort and familiarity between the parties which is congruent with the contention they were close companions. Given these factors, it was of concern to the Tribunal that the applicant displayed an apparent lack of insight into the mental health and dementia conditions referred to in the medical evidence.
202. For instance, the Tribunal noted that documentation from the sponsor’s residential aged care facility indicated her diagnosed medical conditions included cognitive impairment, Alzheimer’s disease and a bipolar disorder with depressive symptoms.[43] In response to a question as to when these conditions were first diagnosed and what treatment the sponsor had received for the conditions, the applicant gave evidence that the diagnosis of cognitive impairment was made after the applicant was hospitalised with COVID-19. The evidence indicates this was in 2022. The applicant gave evidence that he did not know about the Alzheimer’s disease diagnosis and did not know when the sponsor may have been diagnosed with the bipolar disorder.
[43] Centre resident information regarding sponsor updated 1 March 2023, applicant’s submissions received 15 February 2024.
203. The Tribunal noted that documentation filed by the applicant included details of a July 2019 appointment which the sponsor had with the Bankstown aged care psychiatry unit[44] and invited the applicant to convey his understanding of the mental health conditions affecting the sponsor at that time and the treatment she received for those conditions. By way of response the applicant gave evidence that the sponsor’s sleep could become very disturbed by nightmares and that this especially affected her after she had contracted COVID-19 in March 2022. Given the documentation provided by the applicant indicated that the sponsor had an appointment with the aged care psychiatry unit in July 2019 the Tribunal asked the applicant if he was aware the sponsor was experiencing mental health difficulties in 2019. In response the applicant gave evidence that at that time the sponsor just had medications to settle her sleep disruption. The applicant did not identify any other treatments recommended or provided to the sponsor for the symptoms associated with the mental health conditions from which she suffered. The occupational therapy report prepared by Nhung Huynh in March 2020 also refers to the sponsor suffering from ‘moderate – severe dementia (diagnosed 2019).’ Further to this, the report of Dr Fiona Tran, geriatrician, prepared in November 2019 details the sponsor’s anxiety and cognitive impairment in the Background medical history section and in a further part of the report refers to the sponsor’s ‘longstanding history of anxiety.’
[44] Applicant’s statutory declaration dated 24 January 2024.
204. Given the extent to which there are repeated references to the sponsor experiencing anxiety, excessive worries, panic, and to her living much like a recluse and rarely wishing to leave her home, it is surprising the applicant did not have insight into the extent to which these behaviours and traits were likely associated with her mental health conditions and cognitive decline. The Tribunal has the view that knowledge of and insight into a person’s health conditions and how they affect a person’s wellbeing is indicative of the level of companionship and emotional support present in a relationship involving those two people.
205. Taking at face value the applicant’s evidence regarding these factors, the Tribunal has assessed that his lack of insight into the sponsor’s mental health conditions, which are reported to include anxiety and a bipolar disorder, and as to the length of time she was suffering from cognitive decline associated with a dementia condition, is not indicative of the level of emotional support and companionship in their relationship as has been otherwise claimed.
206. With respect to the guardian and EPOA arrangements, the delegate considered the arrangement whereby the applicant was given complete financial control of any decision related to the welfare of the sponsor a strong indicator of the existence of a grandmother/grandson or a carer relationship, rather than of a couple in a de facto relationship. It is the view of the Tribunal that appointment of an attorney, guardian or Centrelink nominee could reflect the arrangements made between a couple in a committed relationship where one member of the couple has frail health and diminishing capacity. However, in the view of the Tribunal such arrangements are not solely a feature of this sort of relationship or connection between two people. In reflecting on arrangements made between two people where there is a connection where one person takes on the role and responsibility to support the other person, such a connection could as easily exist between friends, or between relatives such as siblings, parents and children or for that matter, between grandparents and grandchildren. As a consequence the Tribunal accepts these instruments show the presence of a close connection between the sponsor and applicant, but not that this leads to a finding that there are in and of themselves clear indicators that the parties were, at the time these arrangements were made in 2017, in a de facto relationship.
Overall assessment of the commitment aspects of the relationship
207. The Tribunal considers it appropriate to give some weight to the commitment aspects of the parties’ relationship as it is satisfied the evidence establishes the parties cohabited for around four years on a full-time basis. The Tribunal has also given some weight to the degree of emotional support and companionship that is reported to have existed in the relationship, with the extent of weight given to this factor mitigated for the reasons outlined above.
Overall assessment of the de facto relationship
208. The circumstance where household arrangements change due to disruption caused by a person moving into residential aged care is not unusual in Australian society. The practical result of such a change in circumstances is that the person who has gone into care on a full-time basis, as was the circumstance of the sponsor from September 2022, is no longer a part of the household where they resided prior to going into care. The Tribunal has considered the implications which arose from this circumstance in relation to the provisions of s 5CB(2)(c), which require that the applicant and their sponsoring partner live together, or do not live separately and apart on a permanent basis.
209. In SZOXP v MIBP[45] the Court found that the definition of ‘live separately and apart’ requires consideration of both a mental and physical element, and the phrase does not require that the parties live in a different home but rather focuses upon whether they have lived their lives separately in separate households. In Nicolas v Minister for Immigration,[46] the Court dealt with the circumstance where a sponsor had entered residential aged care and in obiter comments at [63] noted the following after reviewing certain authorities suggested by the parties in that matter:[47] ‘In reviewing these authorities, the main proposition that I would draw from them is that the consideration of whether the applicant and the sponsor are living separately and apart on a permanent basis involves an emotional component as well as a physical component’.
[45] SZOXP v MIBP (2015) 231 FCR 1; [2015] FCAFC 69, Federal Court of Australia, Kenny, McKerracher and Edelman JJ (NSD 1277 of 2014, 11 June 2015).
[46] Nicolas v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 288.
[47] (a) SZOXP v MIBP (2015) 231 FCR 1; [2015] FCAFC 69 at [14]–[59], [60], [65]; (b) Nguyen v Minister for Immigration [2016] FCCA 32 at [30]; and (c) Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546; [2006] FCA 735 at [36]–[47].
210. Of particular relevance to the circumstances of this matter, at [65] His Honour noted that:
The interpretation of the phrase ‘living separately and apart’ adopted in cases such as SZOXP also provides an answer to the applicant’s concern that an applicant who is (physically) living separately and apart from a sponsor due to the sponsor’s care needs might be in a worse position than an applicant whose sponsor had died and who might still be able to meet the time of decision criteria in cl 820.221(2)1 of the Regulations. Quite clearly, there could be cases where the Tribunal could find that an applicant and sponsor do not live separately and apart on a permanent basis, and otherwise meet the definition of ‘spouse,’ notwithstanding that the applicant and the sponsor do not physically live together.

211. The Tribunal is satisfied the evidence establishes there was a close connection between the applicant and sponsor, which developed over the period from the applicant’s first trip to Australia in 1996. The Tribunal is satisfied that there was an emotional component to this connection. From the information which is available to the Tribunal it would appear that at the time the parties met in 1996 the sponsor was a reclusive person with a relatively small social network primarily stemming from the expatriate Estonian community in Australia. The initial point of connection between the applicant and sponsor was that she was the widow of his deceased maternal grandfather who had responded to enquiries made by the applicant about his grandfather’s circumstances in Australia. The contention is that a friendship developed over time, which in January 2013 at the instigation of the sponsor became a de facto relationship.
212. The difference in ages between the applicant and sponsor was considerable, some 55 years by the Tribunal’s estimation. This does not however preclude there being a genuine de facto relationship between the applicant and sponsor, prior to the death of the sponsor, which would have continued to exist, except for her death. The parties shared a household together from September 2018 until the sponsor moved into residential aged care in September 2022. That the applicant and sponsor were not living together at the time of her death is also not a factor which precludes their de facto relationship being genuine and continuing up until her death.
213. In forming a view about the parties’ relationship the Tribunal has sought to understand the nature of the connection between the parties. That the sponsor developed an emotional and psychological dependency on the applicant is in my view demonstrated by the evidence. The anxiety and worry she is reported to have displayed is consistent with the diagnosed mental health conditions she is reported to have suffered from. There are numerous references in the evidence to the sponsor being reassured and comforted by the applicant’s presence and of her anxiety being triggered by his absence.
214. The applicant has sought to reassure the Tribunal that the connection between the parties was at no stage that of a grandparent and grandchild. Whilst technically correct, in that there is no biological connection between the parties, the Tribunal has not found the applicant’s contentions with respect to this factor persuasive. This is due to the extent in the evidence of references to the sponsor, applicant or third parties referring to or contextualising the parties’ relationship as that between a grandparent and grandchild.
215. The material filed in association with the review application includes the report prepared in January 2021 at the request of a representative then assisting the applicant, by Flora Truong, clinical and forensic psychologist.[48] Ms Truong opines that the parties’ ‘relationship extends beyond that of grandmother-grandson or carer relationship’ and in support of this view notes that the ‘relationship demonstrates mutual care and genuine interest in each other’ and ‘a strong commitment towards each other in sharing their life, to the degree of enmeshment whereby they spend most of the day and do most activities together to the exclusion of all others.’ The Tribunal has had regard to this opinion but does not accept it, as it does not view the features described by Ms Truong to be solely present in a de facto relationship. The features described by Ms Truong, in the view of the Tribunal, may exist between close friends or relatives or, for that matter, in a connection that may develop between a carer and care receiver.
[48] Psychologist assessment report prepared by Flora Truong, clinical and forensic psychologist, Healthy Minds Psychology, 13 January 2021 (pages 576–592 of the applicant’s submissions received 15 February 2024).
216. The Tribunal is satisfied that there was an emotional connection between the applicant and sponsor up until the time of her death in April 2024. It is however the assessment of the Tribunal that the parties were at that time living separately and apart on a permanent basis as they were not physically residing in the same location and were in effect living their lives separately. The Tribunal finds that there was no reasonable likelihood that cohabitation between the parties at the Bankstown residence would be resumed.
217. The assessment of the Tribunal in this matter is that a connection developed between the applicant and sponsor from the time of their first direct contact with each other in 1996. This connection initially provided the applicant with somewhere to stay on frequent trips to Australia and also a sense of connection to his deceased maternal grandfather. For the sponsor, the connection with the applicant appears to have provided her with company and a sense of connection with her Estonian heritage. Over time the applicant formed a motivation to migrate permanently to Australia. Concurrently with this the sponsor formed a wish to have the applicant remain in Australia at her side. The evidence indicates there was from in or around 2013 consideration by the parties and at least one of their friends, Mr Gialdini, as to visa options which may provide a pathway for the applicant to remain in Australia. The Tribunal does not however accept a de facto relationship between the parties commenced at that time.
218. After considering all of the circumstances of the relationship, including the matters set out in reg 1.09A(3), the assessment of the Tribunal is that the financial and social aspects of the parties’ relationship, and of the nature of their household arrangements and the commitment to the relationship do show that there was a significant connection between the parties, but do not support the contention that they were in a de facto relationship.

On the basis of the above the Tribunal, noting the parties were not married and whilst satisfied they were not for the purposes of s 5CB(2)(d) related by family, finds the parties did not at the time of the sponsor’s death have a mutual commitment to a shared life to the exclusion of all others; or that the relationship between them was genuine and continuing. The Tribunal further finds that at the time of the sponsor’s death the parties were not living together and were rather living separately and apart on a permanent basis. Therefore it is the assessment of the Tribunal that at the time of the sponsor’s death in April 2024 the requirements of s 5CB(2)(a), (b) and (c) were not met.
As a consequence, the provisions of cl 801.221(5)(b) are not satisfied as the applicant would not meet the requirements of cl 801.221(2) or (2A) except that the sponsoring partner has died.

221. Further to this and for the reasons discussed above, the Tribunal is not satisfied that the applicant would have continued to be the de facto partner of the sponsoring partner if the sponsoring partner had not died.
222. As a consequence, the provisions of cl 801.221(5)(c) are not satisfied.
223. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
224. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
David Barker
Member

ATTACHMENT – Extract from Migration Regulations 1994
1.09A De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).

[2024] AATA 3037

24 July 2024

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