Thiruchelvam (Migration)

Thiruchelvam (Migration) [2023] AATA 4627 (8 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Nirojan Thiruchelvam
VISA APPLICANT:  Mrs Tharsika Nirojan
REPRESENTATIVE:  Mr Don Susantha Katugumpala (MARN: 9601070)
CASE NUMBER:  2009846
DIBP REFERENCE(S):  BCC2018/3806244
MEMBER:Brygyda Maiden
DATE:8 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.211 of Schedule 2 to the Regulations; and
·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 08 December 2023 at 7:52pm
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – Tribunal accepts that the marriage was valid –applicant shares his financial resources with the visa applicant – nature of the parties’ household provides a small amount of support for the parties being in a genuine and continuing relationship – parties had been in a relationship for approximately 11 years and married for eight years – couple view their relationship as a long-term one – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F,65, 359
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
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 11 June 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the “Act”).
The visa applicant, a 30-year-old Sri Lankan national, applied for the visa on 18 June 2018 on the basis of her relationship with her 39-year-old sponsor (the “review applicant”). At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”). The primary criteria must be satisfied by at least one applicant.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 due to the limited evidence before the delegate in support of the parties’ relationship.
On 26 April 2023, a representative of the Registrar of the Tribunal wrote to the review applicant through his representative requesting further information and supporting evidence and providing examples of the types of information that could be submitted. A response was requested by 10 May 2023. The representative submitted a number of documents to the Tribunal which were attached to his 10 May 2023 e-mail.
The review applicant appeared in person before the Tribunal on 22 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by video conference. The Tribunal was assisted by a Tamil (Sri Lankan) interpreter. The parties told the Tribunal that they could understand the interpreter and had no issues with using the interpreter.
The review applicant was represented in relation to the review. There was no contradictor present.
The Tribunal allowed the review applicant an additional two weeks, post-hearing to submit additional documentation before the Tribunal would make its decision. The representative submitted submissions and additional documents in time.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is the “spouse” (as defined in s 5F of the Act) of the review applicant.
Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:
This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.
Accordingly, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.
Section 359AA of the Act
Towards the end of the hearing, the Tribunal followed the procedure under s 359AA of the Act and put information that the Tribunal considers would be the reason, or a part of the reason, for the affirming the decision that is under review to the review applicant. The Tribunal stated it received information at the hearing from the review applicant and the visa applicant. The information received was:
A.the review applicant said there were 200 – 250 people at the parties’ wedding, however, the visa applicant said there were about 100 people;
B.the review applicant said he was in Sri Lanka for a period of 2 months in 2022 and the review applicant lived with the visa applicant during that period. However, the visa applicant said that the review applicant was in Sri Lanka for one month and she could not remember the month;
C.in relation to the visa applicant’s hobbies and interests, the review applicant said that she likes make-up and making sweet snacks. The visa applicant said she liked making sweet snacks and watching television.
The Tribunal explained that the information was relevant to the review because the information may indicate that the review applicant’s relationship with the visa applicant was not genuine. It appears to show that the review applicant’s wedding was not as claimed, the review applicant had limited personal knowledge of the visa applicant’s personal circumstances, and the parties may not have visited and lived with each other as claimed. This may lead the Tribunal to doubt that the parties are in a genuine and continuing relationship and doubt that the parties lived together as claimed. It also casts doubt upon the credibility of some of the review applicant’s and visa applicant’s evidence. In order for the visa applicant to be granted the visa, the Tribunal needs to be satisfied that the review applicant and the visa applicant are in a spousal relationship as per s 5F(2) of the Act. The Tribunal asked the review applicant if he understood what the information is and how the information the Tribunal shared with him was relevant to the review, and the review applicant answered “yes”.
The Tribunal explained that the consequences of the Tribunal relying on this information is that it may lead the Tribunal to find that the review applicant is not a ‘spouse’ of the visa applicant within the meaning of s 5F of the Act, and as a consequence, that the visa applicant does not satisfy cl 309.211 and cl 309.221 of Schedule 2 of the Regulations for the grant of a Partner (Provisional) (Class UF) (Subclass 309) visa. This would be the reason, or a part of the reason for the Tribunal to affirm the decision of the delegate to refuse the visa. The Tribunal asked whether the review applicant understood the consequences of the review if the Tribunal relies on the information it shared with him to which he answered “yes”.
The Tribunal made clear that it had not formed any view about the information it shared with the review applicant, but it could, and it would not form a view until it heard from him. The Tribunal invited the review applicant to comment on or respond to that information. The Tribunal advised that he did not have to comment on or respond to the information now and he may seek additional time to consider the information before he commented on or responded to that information. The review applicant indicated he wanted additional time and given that the information was not particularly complex a 10-minute adjournment was granted by the Tribunal.
Section 359AA of the Act response
The review applicant provided an oral response at the hearing, as did the visa applicant with some oral submissions from the representative. The representative requested additional two weeks to provide additional submissions which the Tribunal agreed to.
A.The number of people at the wedding
The review applicant told the Tribunal that there were 200-250 people that attended the parties wedding however, the visa applicant said, with her relatives and the review applicant’s relatives nearly 50 or 60 people would have come. The Tribunal asked whether that was the number of all the guests or just the relatives. The review applicant said including her relatives and her husband’s the total would have been about 50 or 60 people. The Tribunal then queried whether any people attended who were not friends or relatives, and the visa applicant said friends and neighbours also attended. The Tribunal again asked how many people in total attended. The review applicant said that she did not know the exact number. The parties had the wedding in a big hotel and said that maybe 100 people came. The Tribunal expressed its concern about the that the review applicant had said 200-250 people had attended and the visa applicant had said 100 people attended. The visa applicant then changed her evidence again and said maybe 100 or 200 people came.
In response to the s 359AA invitation, the review applicant told the Tribunal that what can be seen with the naked eye could vary. The wedding was nearly seven or eight years ago, and the parties could have forgotten. The Tribunal stated that it considered it reasonable for parties to know how many people attended their wedding given that it was a momentous relationship occasion. The review applicant told the Tribunal that the wedding was organised by both families and the visa applicant paid for the wedding expenses. The review applicant also said that the visa applicant had some memory issues (though no medical evidence of this was submitted).
Post hearing, the representative on the review applicant’s behalf submitted:
a.a copy of the parties’ wedding invitation;
b.a copy of a plaque which indicates that the parties wedding was on 5 February 2015;
c.numerous photographs of the parties’ wedding including (but not limited to) the parties in traditional attire, a photograph showing many tables of many guests and the parties with guests;
d.documents from the Green Grass Hotel which are partially obscured by a bill which appears to be affixed to the top left corner of the document. Because of this, it is not clear whether the documents from Green Grass Hotel are receipts or invoices and it is also not clear to whom it is made out to. One of the bills refers to a “SPECIAL LUN” [sic] for 300. This appears to be for 300 people, but it is not clear for what.
e.a document described to be confirmation of marriage at the hotel. It is not clear from the face of the document, whether that is the document’s purpose or not. The document submitted indicates that the parties as bride and groom and their dates of birth, and states that it was on their wedding day 5 February 2015.
The representative’s submissions dated 6 December 2023 state:
Please refer to the actual receipts for the venue/lunch for expenses incurred for Tharsika [the visa applicant’s] and Nirojan’s [the review applicant’s] wedding. Receipts indicate “Special Lunch order for Qty: 300, which could indicate roughly up to 300 attendees. [The Tribunal has already discussed this document and that it is not clear what it is for and to whom it is addressed].
Contrary to the response given by both the Applicant and Spouse during the hearing, the potential number of attendees approximately was 300, as such it must be noted that both Applicant and Spouse were incorrect in their recollection of the number of guests. Furthermore, it must be noted that although the Applicant contributed financially, all arrangements for the wedding was handled by the respective families of the couple. It is an acceptable form of conducting marriages to have an informal RSVP process and for additional family members of invitees to attend. In respect of the Tribunal’s concerns on the above, we wish to respectfully submit that the material factor to prove the relationship is that the Applicant and spouse had a valid marriage which is significant and substantial in terms of the people who attended and further proves that the said wedding was genuine. As such it is our position that the Applicant and spouses’ incorrect recollection of the number of guests should not be an adverse finding.”
The Tribunal considers it reasonable for parties in a genuine spousal relationship to be aware of how many people attended their wedding despite a number of years elapsing since the wedding day. In this case, there is a substantial disparity between the numbers provided by the parties in oral evidence at the hearing. If the representative’s submission is to be accepted (which the Tribunal has concerns about as discussed above) then approximately 300 people attending the wedding. Due to the inconsistency in the parties’ oral evidence, and that neither party appears to be particularly consistent with the documentation submitted, the Tribunal has concerns about the genuineness of the parties’ marriage and whether the parties are in a genuine spousal relationship.
In respect of the submissions made by the representative pertaining to the validity of the parties’ marriage, the Tribunal accepts that the marriage was valid. This is discussed below.
B.The amount of time the review applicant spent in Sri Lanka in 2022
Numerous documents were submitted post hearing to indicate that the review applicant was in Sri Lanka from 12 March 2022 and departed on 9 May 2022. The Tribunal accepts that the review applicant was in Sri Lanka for this period.
The review applicant told the Tribunal that he had met with the visa applicant on the 12 March 2022 at the airport and returned to Australia on 9 May 2022. The parties stayed in a hotel for two days by themselves. Post hearing, photographs of the parties were submitted at the airport. It is not clear from the photographs which airport they are at or when the photographs were taken as they are neither labelled nor date stamped. For these reasons, the Tribunal gives them some weight.
The review applicant indicated at the hearing that he had submitted a copy of a lease agreement for the time he spent in Sri Lanka in 2022. The lease agreement submitted was entered into by both parties on 5 February 2022 for a property in Colombo. The lease was for a period of two months commencing on 16 March 2022 and ending on 15 May 2022. The lease is inconsistent in part as in one part it says that the premises is a “Master Bedroom with attached bathroom with separate entrance.” Elsewhere in the lease, namely at clause 1, it states that it is a “Two bedroom fully furnished Apartment.” Inventory items also list 2 double beds.
The representative’s submissions dated 6 December 2023 attached documents for the parties claimed stay at Citrus resort including hotel receipts and photographs of the couple during their stay. The Tribunal notes that the invoice for Citrus resort in is in the visa applicant’s name only and it appears to be for two rooms from 6-8 May 2022. The reference is made to “Pax 4” and the Tribunal is not clear whether that is the maximum occupancy of the two hotel rooms or whether there were four people staying in the rooms booked by the visa applicant. Because of this, although the Tribunal is satisfied that the parties stayed in the same hotel (photographs were submitted indicating that the parties were at the hotel and having meals/drinks at the hotel), the Tribunal is not satisfied that they stayed in the same room (despite a photograph of the parties seemingly in a hotel room together standing in front of a made double bed because it does not appear to be consistent with two hotel rooms being booked and there was no evidence to suggest that the parties were travelling with anyone else).
The review applicant told the Tribunal that during that period (when he was in Sri Lanka), the visa applicant had an infection and was hospitalised for four or five days. Post hearing, numerous pieces of medical evidence were submitted indicating that the visa applicant was admitted to Royal Hospital (PVT) Ltd on 20 March 2022, discharged on 24 March 2022 and underwent numerous tests. Other medical documentation submitted indicated that other tests had been performed on 4 April 2022. Photographs show the parties together in hospital with the visa applicant seemingly sleeping in a hospital bed, and of the visa applicant on her own in hospital.
The visa applicant told the Tribunal that she was looking forward to that moment when he came to Sri Lanka. She had become sick, COVID came, and it became like a bad or sad memory. She travelled to Colombo with a lot of expectations and that the parties had to do a lot of things together. When she got sick and COVID came, it did not meet her expectations, it became a bad experience. She cannot remember things all the time, even now. However, the Tribunal accepts that the visa applicant was hospitalised and undergoing tests for part of the review applicant’s visit to Sri Lanka, and because of that, that her expectations regarding the review applicant’s visit may not have been met.
The Tribunal is satisfied that the parties stayed in the same hotel but is not convinced they stayed in the same room. Additionally, although the parties entered into a lease for the period of 16 March 2022 and ending on 15 May 2022, no other evidence was submitted to indicate that the parties’ both stayed there together. However, when considered in conjunction with the photographic evidence submitted and the visa applicant’s medical evidence, the Tribunal accepts that the parties lived at the same locations whilst the review applicant was in Sri Lanka in 2022.
C.The visa applicant’s hobbies and interests
At the hearing, the review applicant told the Tribunal that the visa applicant likes make-up and that is why she is studying it, and she has done some hairstyling for him. The visa applicant indicated that her hobbies and interests were to cook sweet snacks (her favourite being Kesari) and to watch television. Later, when the Tribunal was discussing what the parties’ common interests and hobbies were, the review applicant indicated that the visa applicant liked to cook sweet snacks with her favourite being Kesari.
In response to the s 359AA invitation, the review applicant indicated that he had said make-up because the visa applicant is studying that and has an interest in that which is the reason for the study. The visa applicant said that she did not see makeup as a hobby. She was mentally down and had started to study, she did not study after year 12 and took makeup on as a profession.
The representative’s submissions dated 6 December 2023 state that the review applicant indicated the visa applicant’s hobbies as movies, make up and making sweets (particular Kesari). The visa applicant said her hobbies were making sweets (particularly Kesari) and watching movies. The visa applicant did not indicate make-up as hobby as it is an interest which is now her professional career.
The Tribunal accepts the review applicant’s explanation in relation to why he mentioned make-up and the visa applicant’s explanation as to why she did not could have been attributed to the question the Tribunal asked. For this reason, the Tribunal does not attach any negative weight to this evidence.
Background

According to the visa applicant’s proof of relationship statement (undated) on the Department file, the parties met on approximately 4 February 2015 in person, but their parents had arranged their marriage proposal in approximately December 2012, and the parties started talking after that. The parties talked for around two years until they were married on 5 February 2015. The spouse visa was granted on 2 December 2015 and the visa applicant arrived in Australia on 24 January 2016. The parties applied for a second stage spouse visa on 17 July 2017. Whilst waiting for approval the application was refused as the visa applicant claimed not to have been aware that the Department of Immigration had sent her a s 56 of the Act request which she did not receive. The visa was refused and the visa applicant claimed not to have received the notification. She learned of the refusal when her employer told her that her work rights ceased in May 2018. On contacting the Department she was advised about the refusal and the parties’ representative informed them that they were out of time for an appeal. The parties decided that the visa applicant should return to Sri Lanka and make an offshore spouse visa application.
According to the submissions of the applicant’s representative dated 9 May 2023:
Upon receipt of the refusal, the Applicant’s agent handing the matter had advised the Applicant to depart the country, despite the Applicant’s eligibility to remain lawfully in Australia until a determination was made on the application for a Merits review. The Applicant’s spouse chose to follow due process and on the advise [sic] of the Agent duly adhered to the visa conditions to leave Australia in a timely manner before the expiry of her visa. Accordingly, Mrs. Tharsika Nirojan left the country depriving the couple of their time together. Had they been provided the right advise [sic], the Applicant’s spouse would not have under any circumstances taken the decision to leave the country and would have continued to live as a married couple pending the Tribunal outcome.
The review applicant gave generally consistent information at the hearing. He told the Tribunal that the visa applicant had come to Australia in 2016 to join him. They both lived in Sunshine until June 2018. He applied for permanent residency for the visa applicant with the assistance of a lawyer but admitted to making a mistake by using the visa applicant’s e-mail. Immigration had requested further information, and the enquiry came to the visa applicant’s e-mail address, and the visa applicant had language issues and did not know how to use e-mail. According to the review applicant his problems were caused by him providing the visa applicant’s email address. The review applicant also indicated that he learned of the visa refusal from the parties’ manager at work. On learning this, he attended Immigration’s office in the city and they told him he had 21 days to apply to the Tribunal, but by the time he learned of this, the period had expired. The visa applicant was given a five-week bridging visa E, and she returned to Sri Lanka. Immigration rejected the application because additional documents they had requested from the parties’ lawyer had not been provided. If the parties had been asked for the documents they would have provided them.
Evidence was also submitted by the visa applicant dated May 2020 indicating that the Department of Home Affairs sent requests to the visa applicant’s then representative in December 2019 requesting additional documents and no new documentation was provided since August 2019.
Is the visa applicant the spouse or de facto partner of the review applicant?
Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant. The review applicant told the Tribunal he came to Australia as a refugee and was an Australian citizen. A copy of the review applicant’s Australian passport was submitted to the Tribunal and shown to the Tribunal during the hearing.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a) - (d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department file contains a translated copy of the parties’ marriage certificate indicating that the parties marriage was solemnised on 7 February 2015. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a). However, this evidence alone does not in the Tribunal’s view demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing.
The review applicant told the Tribunal that none of his siblings attended the wedding. The Tribunal expressed concern about this given that a wedding is an important family event and the parties were engaged beforehand. The review applicant stated that his siblings had their own lives, and they needed to take care of that and in any event, one lived in Norway and the other in France. The Tribunal indicated that although that might be the case, it is not unusual for immediate family to travel to a wedding. The review applicant told the Tribunal that his siblings’ financial situation needed to be considered and other things too. If it were a case that there was a financial issue for the review applicant’s siblings not attend the wedding, the Tribunal considers it reasonable for the review applicant to have said this in the first instance.
The visa applicant stated that she had not met the review applicant’s siblings in person but had seen them on video and gave evidence as to their names and the countries they lived. The Tribunal gives this some weight.
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.
The parties gave consistent evidence as to how the review applicant earns an income, his employers and the visa applicant’s studies. The Tribunal gives this some weight.
Do the parties have any joint ownership of real estate or other major assets? Do the parties have any joint liabilities?
There is no evidence before the Tribunal at the time of application or time of decision that the parties have any joint ownership of real estate or other major assets together or that the parties have any joint liabilities together.
The review applicant indicated that he had purchased a house in his name because the visa applicant is in Sri Lanka. The visa applicant was able to give evidence as to the address and detailed evidence as to the property. The Tribunal affords this some weight.
To what extent is there any pooling of financial resources?
The Department file contains one page of the parties’ joint bank account which appears to show transactions from 10 to 25 May 2019 (though the date is blurry and difficult to read) and shows seven transaction which are effectively money transfers.
The representative’s submissions dated 9 May 2023 state that the joint “account was maintained in order to provide for their future and potentially to contribute and/or invest in a residential home for the couple in the long run We wish to draw your attention to the fact that the couple make deposits when convenient and consistently to maintain their savings. In this manner they were securing a future together.” Statements from the joint account were submitted from 10 May 2018 until 10 July 2018 and 10 November 2022 until 10 March 2023.
The visa applicant stated that the purpose of the joint bank account was if they both do the transaction if they want to go shopping they use the same account. However, the parties gave consistent evidence that the visa applicant could not access the joint account since 2018. The review applicant stated that the visa applicant has not accessed the joint bank account since she left Australia. The Tribunal considered this strange, and the review applicant said that the account could only be accessed from his phone not online or through a computer. The Tribunal indicated that this was also strange. The representative submitted that this may have been indicative of how the account was set up – the Tribunal accepts that this may be the case. However, given that the joint bank account has not been accessed by the visa applicant since 2018, and at the time of application it is not clear that it is used in the way the visa applicant claims, the Tribunal gives it a small amount of weight in relation to pooling financial resources at both time of application and time of decision.
The visa applicant submitted a copy of her own Commercial Bank account with a statement dated 30 April 2020 showing transactions from 31 December 2019 until 6 January 2020. The statement during that period does not provide any indication from the narrations that the parties are pooling financial resources. The review applicant gave evidence that his income continues to go in the joint account with the visa applicant’s income going into her Commercial Bank account.
Post hearing, the review applicant submitted a statement of account dated 30 November 2023 of the visa applicant’s Commercial Bank account. This account shows the visa applicant transferring funds into the account in July and September 2023. Although the Tribunal accepts that the review applicant has transferred money to the visa applicant at times, this does not indicate pooling of financial resources, but rather that the review applicant shares his financial resources with the visa applicant.
Does one person in the relationship owes any legal obligations in respect of the other?
There is no evidence at the time of application or time of decision that the parties owe any legal obligations in respect of the other.
What is the basis of any sharing of day-to-day household expenses?
The parties gave generally consistent evidence as to how when the visa applicant was in Australia they shared expenses. The Tribunal gives this some weight.
The review applicant submitted a one-year Ambulance family membership which shows that the visa applicant started being a dependent adult on 8 April 2016 when the review applicant was the primary member and had been so since 2012. The Tribunal gives this some weight.
The review applicant submitted statements from the visa applicant’s bank account showing transactions from 1 November 2021 until 8 May 2023, which show that the review applicant made deposits into her account on:
a.21 March 2022;
b.5 April 2022;
c.30 September 2022;
d.28 October 2022;
e.29 November 2022;
f.15 December 2022;
g.20 February 2023; and
h.28 March 2023.
The review applicant told the Tribunal that he sends the visa applicant money monthly and in between then if there is festival he will send her a bit extra. She use the money for clothing, food, education and transport. The review applicant stated that from the time the parties got engaged, he started to send money to the visa applicant. The Tribunal indicated that the records of money transfers it had were only from March 2022 until March 2023 and were not monthly but were close.
Post hearing, the representative on behalf of the review applicant submitted additional documents indicating that the review applicant had deposited money into the visa applicant’s bank account on 19 July 2023 and 18 September 2023. Messages were also submitted which according to the representative’s submissions dated 6 December 2023 confirm the review applicant’s other means of money transfers through friends. There are a number of instances saying that certain amounts of money had been transferred and then providing the visa applicant’s name and the name of her bank. Payment receipts were also attached for payments sent to Can Chain Supply from House (which appears to contain the banking details from the review applicant’s NAB bank account). The Tribunal accepts that the review applicant made payments to the visa applicant on 12 April 2023, 24 May 2023 and 15 November 2023. Additionally receipts for international payment indicate that the review applicant sent money to the visa applicant on 16 February 2023, 27 March 2023, 7 May 2023 and14 September 2023.
The review applicant’s 9 May 2023 statement states that he has supported the visa applicant financially. He has transferred money “every month and ensured that she did not have to rely on other family members.” Based on the evidence before the Tribunal the Tribunal accepts that the review applicant sent the visa applicant money approximately once a month from March 2022 until November 2023. No evidence of money transfers was submitted prior to this time.
Conclusion on the financial aspects of the relationship
At the time of application, the parties had no joint ownership of real estate or other major assets, no joint liabilities, and there was no evidence that one party owed a legal obligation to the other. The parties have a joint bank account, the earliest statement of which is dated in May 2018 and does not indicate that it is used for the sharing of day-to-day household expenses. The representative’s submission was that the parties used the review applicant’s bank account for joint household expenses, and there is evidence of household expenses coming out of that account but it is not clear from the account itself how those expenses are shared. The parties gave consistent evidence pertaining to the sharing of day-to-day household expenses. Although the review applicant claims to have sent the visa applicant money since when the parties were engaged there is no evidence of that at or prior to the time of application. On balance, given the parties claimed to have lived together in Australia just prior to the date of application the financial aspects of the relationship do not provide much support for the parties being in a genuine and continuing relationship.
At the time of decision, the parties had no joint ownership of real estate or other major assets, no joint liabilities, and there is no evidence that one party owed a legal obligation to the other. The parties continue to maintain a joint bank account in Australia, though the visa applicant gave evidence that she has not accessed the joint account since she left Australia in 2018. Therefore, the Tribunal is not satisfied that the joint account shows any pooling of financial resources or is used for shared day-to-day household expenses at the time of decision. The parties do not share a household (as they live in separate countries: Australia and Sri Lanka) so they do not share day-to-day household expenses, though there was evidence of regular money transfers submitted from March 2023 until April 2023, which indicates the review applicant’s preparedness to share his financial resources with the visa applicant and provide her with financial support. The Tribunal affords this some weight. On balance the financial aspects of the relationship do not support the parties being in a genuine and continuing relationship. However, considering the parties have resided in separate countries since 2018 the Tribunal accepts that it would be difficult to establish the financial aspects of the relationship, and for this reason, the Tribunal affords this consideration neutral weight at the time of decision.
Nature of the household
The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.
Is there any joint responsibility for the care and support of children?
The review applicant told the Tribunal that parties had no children and had no joint responsibility for the care and support of any children.
What are the living arrangements of the persons?
According to the “Application for migration to Australia by a partner” form on the Department file (the “Application Form”) at the time of application the visa applicant was living at Ananda Road, Manipay, Jafna, Sri Lanka and the review applicant was living at 12 Isla Street, Sunshine North, Victoria, Australia. The review applicant told the Tribunal that initially the parties were told that everything [the visa process] would be finalised within six months. The visa applicant rented a house in Jaffna and the visa applicant’s parents came to live with her. The review applicant rented the property for her because in her village people would talk about her and say bad things about her. Her parents came for security and support, they did not totally move, one would stay there at a time, and after three or four months, he sent her back to the village.
The review applicant told the Tribunal that the visa applicant left Australia on 7 June 2018 and prior to that the parties were living the Isla Street address. After the visa applicant left Australia, he lived by himself for a while and then moved into a property alone in Sunshine West.
The review applicant’s statement dated 9 May 2023 indicates that at that time he was residing at Tawrrific Street, Kurunjang, Victoria. The review applicant told the Tribunal that he continues to live at the same address, it is the house he purchased, and he lives alone. The visa applicant was able to give very detailed evidence as to what the review applicant’s property looked like from the front, the number of bedrooms, bathrooms and the kitchen. The Tribunal gives this some weight.
Both parties gave consistent evidence that the visa applicant lives at Anatha Street, Manipay, Jaffna with her parents and siblings. The Tribunal gives this some weight.
Is there any sharing of the responsibility of housework?
According to the review applicant’s 9 May 2023 statement, when the parties were living together in Australia from January 2016 until June 2018, the parties shared household chores. The visa applicant cooked and the review applicant assisted her with cleaning. This statement is generally consistent with the review applicant’s oral evidence at hearing, however, he additionally added that he cut meat. The review applicant also told the Tribunal that the parties shared housework when he was in Sri Lanka in 2022. The parties shopped at the market together and shared the relatively little housework they had. The review applicant cut the meat, washed the dished and cleaned the house. The visa applicant did the cooking and cleaning as well. The Tribunal gives this some weight.

The visa applicant told the Tribunal that if the review applicant did the washing, he would hang it up, helps with the cleaning and cuts vegetables. When he came to Sri Lanka in 2022 the review applicant helped the visa applicant with cleaning. The Tribunal gives this some weight.
Conclusion on the nature of the parties’ household
In respect of the nature of the parties’ household, at the time of application the parties had no joint responsibility for the care and support of any children. The parties live in different countries, with the visa applicant living in Australia and the review applicant living in Australia. There is evidence that the parties shared the responsibility of housework just prior to the visa applicant departing Australia to return to Sri Lanka (which was just before the date of application). On balance, the nature of the parties’ household provides a small amount of support for the parties being in a genuine and continuing relationship.
At the time of decision, the parties had no joint responsibility for the care and support of any children, the parties were consistent in each other’s living arrangements despite the review applicant living in Australia and the visa applicant continuing to live in Sri Lanka. The parties claim to have shared housework when the review applicant was in Sri Lanka in 2022. On balance, the nature of the parties’ household does provide much support for the parties being in a genuine spousal relationship. However, given the parties reside in different countries, the Tribunal accepts the difficulties that the parties would have in establishing a household together. For this reason, the Tribunal gives this consideration neutral weight.
Social aspects of the relationship
The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.
Do the persons represent themselves to other people as being married to each other?
The Department file contains wedding photographs of the parties, though it is not clear from the photographs how many people attended the parties’ wedding. The Tribunal has already discussed the parties inconsistent evidence pertaining to how many people attended their wedding and the additional post hearing evidence that was submitted. The Tribunal gives the photographs some weight as to the parties representing themselves as being married to each other.
The review applicant told the Tribunal he represents himself as a married person - the friends that he mingles with know that he is married. This appears to be consistent with the statutory declarations below.
The Department file contains a copy of the review applicant’s Facebook page. The picture is cut off, and there is an event with hearts (not in English) which occurred on 5 February 2015. On 6 February 2015 there is a post of the parties in traditional wedding attire with others.
The review applicant submitted a statement from Mrs Shiyamala Ratnasegar dated 5 October 2021 which states that the parties are known to her and that their marriage was solemnized before her at the review applicant’s residence on 7 February 2015. The Tribunal gives this some weight.
The review applicant’s statement dated 9 May 2023 states that after the parties’ wedding in Sri Lanka the review applicant had to return to Australia due to work at the end of February 2015 and the visa applicant changed her surname to “Nirojan” as well as on all official documents to reflect the parties’ “loving marriage”. The Tribunal gives this some weight.
However, at the time of decision, other than the statement of Ambikaikumar Kandasamy dated 9 May 2023 (discussed below) there is little recent evidence indicating that the parties continue to represent themselves as being married to each other.
What is the opinion of the persons’ friends and acquaintances about the nature of the relationship?
During the hearing the review applicant told the Tribunal that at least 50 to 100 people know of the parties’ relationship in Melbourne (though no evidence was submitted to support this claim). He is not ashamed of telling people about the parties’ visa issues as they have not done anything wrong.
The Department file contains copies of a form 888 statutory declarations from:
a.Mr Ganeshamoorthy Selladurai, dated 6 May 2018, which other than stating that he has known the visa applicant for two years and the review applicant for eight years provides no other information. The Tribunal gives this little weight.
b.Mr Jeevarathinam Prathapan dated 9 May 2018. At the time of the declaration, Mr Prathapan had known the visa applicant for two years and seven months and the review applicant for seven years. He has known the visa applicant since her arrival to Australia and is a family friend of the review applicant. The parties have shared a household together and lived in Australia since January 2016. The visa applicant is a dedicated wife and takes care of the household and the review applicant. The parties are intending to start a family soon. The Tribunal gives this some weight in terms of the the parties representing themselves as being married, and some weight as to the nature of the parties’ relationship.
The review applicant submitted form 888 statutory declarations from:
a.Mr Ambikaikumar Kandasamy dated 9 May 2023. Mr Kandasamy has known the review applicant for more than eight years and is a very close friend and brother he met the visa applicant after the parties’ marriage in 2016. During the visa applicant’s time in Australia they met frequently, and he met the parties at social events and with friends. The parties are in a “very loving committed relationship. Despite their time apart, they have continued with their relationship and very much committed to live together as a married couple. They often call and text each even [sic] though they do not live together.” The Tribunal gives this some weight to support the parties representing themselves as being married and some weight as to the nature of the parties’ relationship.
The Tribunal notes that there has been a relatively small amount of information at the time of application and time of decision as to the nature of the parties’ relationship.
Is there any basis on which the persons plan and undertake joint social activities?
The Department file also contains a small number of photographs of the parties together.
The review applicant submitted photograph’s of the parties’ at a friend’s wedding in 2016, celebrating a friend’s anniversary, at a number of birthday celebrations in 2017, at the Tulip Festival in Melbourne with friends, at the visa applicant’s birthday with friends, at a baby celebration with friends in 2018. The photographs were submitted with narrations and the Tribunal accepts that the parties have at the times planned and undertaken joint social activities.
According to the representative’s submissions dated 9 May 2023, the review applicant attempted to travel to Sri Lanka in June 2019, but Sri Lanka was recovering from the 2019 Easter Sunday attacks and because of the security concerns and travel restrictions the couple chose to avoid travel until the country recovered. The review applicant gave similar evidence at the hearing. The Tribunal asked why the parties did not meet in another country and the review applicant stated that he did not think of that. The Tribunal indicated that given the parties had been separated for a long period of time, it was strange that they did not think of that. If COVID had not happened he would have gone to Sri Lanka in early 2020 to see her. The review applicant told the Tribunal that he had not made plans to see her in 2023 as he had bought a house and could not go. He had a plan in January 2024 to see her but as at the hearing date had not purchased tickets. The review applicant told the Tribunal that normally he purchased tickets two weeks prior to Departure. Given the lack of frequency of the review applicant’s travel in recent years, the Tribunal does not give much weight to this evidence. The Tribunal notes that there was also no evidence submitted of any attempted travel by the review applicant.
The visa applicant attempted to travel to Australia by way of a subclass 600 visa however, the application was refused. A copy of the refusal and decision record dated 27 January 2022 was submitted. In that decision, the delegate was not satisfied that the visa applicant “genuinely intends to stay temporarily in Australia…”. The Tribunal accepts that in the parties five years of separation, there is evidence of the review applicant travelling to Sri Lanka on one occasion and seeing the visa applicant (which the Tribunal has already discussed), and an attempt for the visa applicant to come to Australia in 2022. Given the parties claims about the effect that the separation has had on each other the Tribunal has concerns about the limited time the parties have spent together (either in Sri Lanka or elsewhere) in the last five years (excluding the COVID-19 period in which it was not possible to travel).
The review applicant returned to Sri Lanka in 2022. Photographs were submitted of the parties together, including of the review applicant at the airport, and of the parties together at various locations including but not limited to: the beach, an animal park, at a shrine, having coffee together, eating together, at a shopping centre, in traditional attire, together with others. The Tribunal accepts that the parties planned and undertook social activities together whilst the review applicant was in Sri Lanka in 2022 and gives this some weight.
The parties gave generally consistent evidence about the types of social things that the parties had liked to do together like going to Philip Island. The review applicant also stated the parties liked going driving together, while the visa applicant was in Australia the parties went to the Tulip Festival, Highpoint and the Laverton market. The visa applicant told the Tribunal that when the parties were in Sri Lanka together they went to the beach park and have been to friends houses for functions when they were invited. The Tribunal gives this some weight.
Conclusion on the social aspects of the parties’ relationship
In respect of the social aspects of the relationship, at the time of application the Tribunal notes that the parties had been married since February 2015. The visa was applied for in June 2018. Although there were a number of photographs submitted of the parties’ wedding and the guests that attended, there is a relatively small amount of information in relation to the nature of the parties’ relationship. There is evidence of the parties planning and undertaking social activities. On balance at the time of application, the social aspects of the parties’ relationship provide some support for the parties being in a genuine and continuing relationship.
At the time of decision there is relatively little current evidence (other than a statutory declaration of Ambikaikumar Kandasamy dated 9 May 2023) to support the parties claims that they represent themselves as being married to each other and Mr Kadasamy’s statement provides the only current evidence as to the nature of the parties’ relationship. The parties have lived in separate countries since 2018, with the review applicant returning to Sri Lanka once in 2022. There is a small amount of evidence in 2022 of parties socialising for a short period of time, though the Tribunal notes the visa applicant’s attempts to visit the review applicant in Australia in 2022 and gives this some weight. On balance, at the time of decision the social aspects of the relationship provide a small amount of support for the parties’ being in genuine and continuing relationship.
Nature of persons’ commitment to each other
The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long-term one.
What is the duration of the relationship?
According to the Application Form, the parties committed to a shared life together to the exclusion of all others on 1 December 2012 but first met on 4 February 2015. The review applicant told the Tribunal that the parties’ parents had arranged their marriage and the parties were engaged in 2012. The review applicant had not at that stage met the visa applicant but had spoken to her over the phone and over video calls. The relationship started from the time the parties were engaged in 2012, although the review applicant could not exactly remember the month of the engagement. The Tribunal queried whether the 1 December 2012 date in the Application Form was the parties’ engagement date, and the review applicant indicated that it was. The parties were married in February 2015.
At the time of application the parties had been in a relationship for approximately three years and married for a bit over two. The Tribunal gives this some weight. At the time of decision the parties have been in a relationship for approximately 11 years and married for eight years. The Tribunal gives this weight.
What is the length of time the parties have lived together?
According to the visa applicant’s proof of relationship statement (undated) on the Department file the parties started cohabiting in Australia from 24 January 2016. The review applicant’s 9 May 2023 statement states that the parties resided together at Isla Street, Sunshine, Melbourne, Victoria until the visa applicant had to leave Australia in June 2018 as her subclass 100 visa was refused, and she could not return to Australia pending the parties application for the 309 visa (the subject of this review) which as lodged in Sri Lanka. The review applicant’s evidence was that the parties lived together in the same house from the time the visa applicant came to Australia on 26 January 2016 until she returned to Sri Lanka on 7 June 2018. The review applicant and the statement of Jeevarathinam Prathapan dated 9 May 2018 provides consistent evidence. The Tribunal accepts that just prior to the time of application, the parties have lived together from January 2016 until June 2018 and gives this some weight.
For the reasons already articulated, the Tribunal accepts that the parties lived at the same locations whilst the review applicant was in Sri Lanka in 2022.
What is the degree of companionship and emotional support that the persons draw from each other?
The Tribunal has discussed the parties’ evidence in relation to the visa applicant’s hobbies and interests. The parties gave generally consistent evidence in relation to the hobbies and interests of the review applicant, and the parties gave consistent evidence that they like to watch movies together.
The review applicant submitted a small volume of chat records from 27 April 2020 until 5 May 2023 (and none prior to this time). Although the records show some calls they also show many missed calls. There are also a lot of images of “I miss you”, cartoons kissing, pictures of the parties, many pictures of the winning lottery numbers. The records do not always show daily calls. The review applicant stated that the parties mostly spoke daily, however, if the review applicant was tired because he is working two jobs so he just messages the visa applicant when he goes to bed. The review applicant indicated that the parties communicate on WhatsApp, Viber and by phone. The Tribunal gives this some weight.
The review applicant submitted a copy of a letter dated 18 September 2021 from his psychologist stating that he had been consulting with the review applicant since August 2020 due to his “significantly deteriorated mental health status.” It is the psychologist’s “clinical opinion that the uncertainty of the process of reunion with his partner is a major negative factor in his overall mental health.” “It is my developing opinion that this man’s Mental Health status is severely impacted by his continued isolation, combined with the well-established exacerbating factor of “uncertainty” in terms of the potential resolution of his request for decision which will facilitate his reunion with his partner.”
Another letter from the psychologist dated 7 June 2023 indicates that the review applicant as having “unremitting presentation of a Major Depressive Disorder.” Despite the review applicant’s efforts to move ahead, his clinical progress is regarded as “poor”. It remains the psychologist’s opinion that “the enduring state of his [the review applicant’s] mood disorder reaches the level of triggering the need for “special consideration” of his status, and the status of the application of his wife [the visa applicant].”
According to the review applicant’s 9 May 2023 statement, during his visit to Sri Lanka in 2022 he became “severely ill” and the visa applicant took care of him. No evidence was submitted of the review applicant being ill during his visit to Sri Lanka in 2022.
The review applicant told the Tribunal that he supports the visa applicant emotionally most of the time. When he has free time, he speaks to her on the phone. Because he cannot see her in person, he tries to talk to her. He is currently seeing a psychiatrist. The visa applicant does not like that, because she is scared because the review applicant is living by himself and that he may go down a path where he becomes more unwell. The visa applicant gave consistent evidence that review applicant was seeing a psychiatrist, and she supports him as much as she can and speaks to him.
The review applicant said that he provides emotional support to the visa applicant as mostly she will cry and he will tell her not to cry that the parties are doing what they have to do. Sometimes he has the assistant of his lawyer to speak to her in Tamil in relation to the process to give her comfort. The visa applicant said when she had to return to Sri Lanka she was very distressed. She did not want to return to her village as they speak badly of women separated from their husbands. The review applicant organised for her to say in town and told her that it was only going to be for three months and comforted her, but it became a lot more. Her family also suffered a lot because of her, she does not come from a wealth family. People from her village started to say bad things about her character. Everyone thinks a girl who was married overseas and was returned assumes it was due to character issues and did not believe her visa issues. She is being judged in her village and people say bad things about her. The visa applicant said sometimes she tries to take her own life and cuts herself. The parties are in love with each other, have been separated, are now not having a life together, and want to be there for each other.
The Tribunal is satisfied that there is some evidence that the parties provide each other with emotional support.
Do the persons see the relationship as a long-term one?
The review applicant told the Tribunal that he planned to visit the visa applicant in January 2024 but had not yet bought a ticket. The Tribunal has already discussed this. Given that the review applicant has travelled once to Sri Lanka since the parties separated in 2018 the Tribunal has concerns about the explanation for the tickets not yet being purchased and gives the review applicant’s evidence a small amount of weight.
Both parties gave consistent information that they wanted to have two children together, with the review applicant telling the Tribunal that he was 39/40, and if the parties had a child they would not have had a visa issue.

The review applicant told the Tribunal that they parties want nothing other than being a family together, once the visa applicant’s visa issues are finalised and they have a child, that will be enough. His young age is going to pass and he will not have a life. The visa applicant said the parties did have a lot of plans, they want to earn as much as they can because they did not have a good life, and because they want to have a good life for their children. When the parties were both in Australia they were earning as much as they could. The visa applicant was working in a cleaning job and also supporting the review applicant in all the ways she could. The parties want to have a good life and a good loving family.
The review applicant told the Tribunal if the visa applicant cannot come to Australia their relationship will continue, because the parties are married. It has been nearly five and a half years and if the parties’ relationship was fake, he would not be continuing with this. The visa applicant said that she would not be alive. She wants to live with her husband. She does not want a life without him and cannot live without him.
If the visa applicant cannot come to Australia, the review applicant will try his best to bring her here, and if he cannot, then he will go to Sri Lanka. The visa applicant also said that the review applicant would move to Sri Lanka to be with her, because he loves her. The parties have gone through a hard life, the review applicant had a hard life when he was in Sri Lanka. Australia is a good country. Not everyone will have an opportunity to live in Australia, she does not want him to leave Australia because of her, so she does not want to live if he wants to do that. The review applicant is mentally disturbed, he is suffering a lot and not eating proper meals, he eats bread. She cannot cook for him, and she is not doing her duty.
The representative’s submissions dated 6 December 2023, indicate that because the review applicant “…obtained his residency in Australia as a refugee, as he had sought refugee status in another country, the [review] Applicant will have restrictions in obtaining citizenship and/or permanent visas in Sri Lanka. It cannot be reasonably expected that the Applicant will be able to return to Sri Lanka and join his wife permanently and/or be successful in obtaining dual citizenship, as he ceases to be a Sri Lankan citizen at time of accepting his Australian citizenship.” No evidence was submitted in support of this submission. The Tribunal notes that despite the representative’s submission, the review applicant’s evidence at hearing was that if the visa applicant could not come here he would go to Sri Lanka (which was consistent with the visa applicant’s evidence).
Conclusion on the nature of the persons’ commitment to each other
In respect of the nature of the persons’ commitment to each other, at the time of application, the parties had been in a relationship for approximately three years and married for a bit over two which the Tribunal affords some weight to. The visa applicant lived with the review applicant from the time she came to Australia in January 2016 until just before the visa application the subject of this review was submitted in June 2018, due to having to return to Sri Lanka due to visa issues. There is no evidence of communication records from when the visa applicant returned to Sri Lanka in 2018 until April 2020. There is some evidence that the parties draw emotional support from each other and a small amount of evidence that the parties’ see their relationship as long term. At the time of application, the nature of the persons’ commitment to each other provides some support for the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life and living together and not separately and apart on a permanent basis.
At the time of decision, the parties had been in a relationship for approximately 11 years and married for eight years which the Tribunal affords weight to. The Tribunal accepts that the parties lived at the same locations whilst the review applicant was in Sri Lanka in 2022. There is only evidence of communication records from 27 April 2020 until 5 May 2023 and they do not provide a great deal of insight as to the companionship and emotional support that the parties’ draw from each other. There is evidence that the parties obtain emotional support from each other and although there is some evidence that the parties see the relationship long term in respect of the parties’ future plans together, for the most part they are not particularly well developed other than to have children and live together. On balance, the nature of the parties’ commitment provides some support for the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life and living together and not separately and apart on a permanent basis.
CONCLUSION
On the basis of the above in the reg 1.15A matters, the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. Therefore, the visa applicant meets cl 309.211 and cl 309.221. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.211 of Schedule 2 to the Regulations; and
·cl 309.221 of Schedule 2 to the Regulations.
Brygyda Maiden
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day‑to‑day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long‑term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2023] AATA 4627

8 December 2023

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