Tieu (Migration) - [2025] ARTA 294

TIEU (MIGRATION) [2025] ARTA 294 (18 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ngoc Tri Duc Tieu
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2212156

Tribunal:General Member T. Quinn
Place:Melbourne
Date: 18 March 2025

Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 18 March 2025 at 2:22pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – relationship registered – financial, household and social aspects of relationship and nature of commitment – inconsistent evidence and unpersuasive explanations – relationship to secure positive migration outcome – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 338(2), 347
Migration Regulations 1994 (Cth), rr 1.09A(2), (3), 1.15A(3), 4.12, Schedule 2, cl 820.211(2)
CASES
Chand v MIEA (unreported, FCA, 7 November 1997)
He v MIBP [2017] FCAFC 206
MIBP v Angkawijaya [2016] FCAFC 5
MIMA v Lay Lat [2006] FCAFC 61
MIMA v Rajalingham (1999) 93 FCR 220
Nejad v MIMA [1999] FCA 1827; [2000] FCA 741
Re MILGEA and Dhillon [1990] FCA 144
Re MIMA; ex parte Durairajasingham [2000] 168 ALR 407
Sein v MIMA (2001) 114 FCR 370
Selvadurai v MIEA [1994] FCA 1105, (1994) 34 ALR 347
“T” v MIMA [2000] FCA 467
Wang v MIMA [2000] FCA 963
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 15 February 2019, the applicant (‘the applicant’ or ‘Mr Tieu’) applied for a Partner visa[1] (‘the visa’) based on his relationship with Phuong Ta Kieu Nguyen (‘the sponsor’ or ‘Ms Nguyen’).[2]
[1] Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
[2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 820 of Schedule 2 to the Migration Regulations 1994 (‘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.
On 1 August 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that the applicant was the genuine de facto partner of the sponsor as defined by section 5CB of the Act (‘the delegate’s decision’).[3]
[3] See clauses 801.221 or 820.211 of the Migration Regulations 1994 (‘the Regulations’).
On 19 August 2022, the applicant applied for a review of the delegate’s decision with the Administrative Appeals Tribunal (‘AAT’).[4]
[4]Pursuant to sections 338(2) and 347 of the Act. This application for review was in relation to the decision to refuse the subclass 820 temporary partner visa as is customary in the review of combined partner application refusals given only one decision can be the subject of a review application by the same person pursuant to regulation 4.12 of the Regulations.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 6 March 2025, the applicant and the sponsor appeared before the Tribunal in person to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s mother, Ms Ta. Ms Ta’s evidence was conducted with the assistance of an interpreter in the Vietnamese and English languages who attended the hearing via video.
The applicant was represented in relation to the review and their representative also attended the hearing on 6 March 2025. The applicant was granted a week to file post hearing submissions, primarily with a view to dealing with inconsistent evidence given during the hearing of 6 March 2025. The applicant’s representative has filed post hearing submissions on 17 March 2025 which have been considered.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant(s), in as much detail as necessary to enable the decision maker to properly consider the case that is being put.[5]
[5]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.
I have proceeded to a decision having regard to all the information before me. For the following reasons, the decision under review is affirmed. In reaching this decision, I have regarded:
a.the oral evidence of the applicant and the sponsor at the hearing;
b.the submissions of the applicant’s representative;
c.all material filed by or on behalf of the applicant (including after hearing); and
d.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.
STATUTORY AND LEGAL FRAMEWORK
The issue in this case is whether the applicant and the sponsor (together referred to as ‘the applicants’) are in a de facto relationship as defined by section 5CB of the Act.
Clause 820.211(2) of the Regulations requires that at the time the visa application was made the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
‘De facto partner’ is defined in section 5CB of the Act and provides that for a person to be the de facto partner of another, there must be a mutual commitment to a shared life 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.[6] 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 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[7]
[6] Section 5CB(2)(a)-(d).
[7] He v MIBP [2017] FCAFC 206.
The matters outlined in clause 1.09A(3) of the Regulations (and any other circumstances of the relationship under clause 1.09A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.09A is relevant and applicable, independently of any conclusions reached by the delegate.
Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[8] In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants, and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[9]
[8] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.
[9]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].
If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[10]
[10]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].
It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[11]
CONSIDERATION OF CLAIMS AND EVIDENCE
[11]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].
Sponsorship
In the present case, the applicant claims that he is the de facto partner of the sponsor, Ms Phuong Ta Kieu Nguyen (‘the sponsor’), who is an Australian born Australian citizen with Vietnamese heritage.[12] Based on the information before me I am satisfied that the sponsor is an Australian citizen.[13]
Timeline[14]
[12]See birth certificate in the Department file.
[13]Ibid.
[14]See Department and Tribunal files.
The applicant first arrived in Australia in 2013 on a student visa.
The applicant started his own export business in or around 2017 which runs in Australia and Vietnam.
The applicant and sponsor claim to have first met at a party held at Ms Ta’s house, where the applicant was living, in May 2018.
The applicant completed his Bachelor of Electrical Engineering in June 2018.
The applicant’s student visa expired in August 2018, and he remained in Australia on a visitor visa.
The applicant and sponsor claim they commenced living together in November 2018.
The applicant made the application which is the subject of this review three months later in February 2019.
The applicant ravelled with the sponsor’s mother, Ms Ta, to Vietnam in March 2019. The sponsor did not accompany them.
The applicant and sponsor obtained a relationship certificate from Births, deaths and marriages on 5 April 2019.
The couple claim to have got engaged in January 2020.
In 2021, the sponsor’s brother bought a house in which the sponsor, her mother and four siblings live. The applicant claims to also reside in this property.
The sponsor travelled to Vietnam for the first time in September 2024, staying for a period of three weeks, four days of which the applicant was also in Vietnam.
The applicant has travelled many, many times to Vietnam for his work.
Evidence Generally
Although there was some consistent evidence given at hearing, there were many inconsistencies regarding critical matters that suggest to me this is not a genuine spousal relationship. The applicant has filed post hearing submissions regarding some of the inconsistencies at hearing. These submissions have been read and carefully considered, even if not expressly referred to. I note they also do not address much of the very problematic evidence given by the sponsor’s mother at hearing, in particular the relationship between the sponsor and her father and the nature of the relationship between the sponsor’s parents with each other. I took the applicant’s representative through many of the aspects of Ms Ta’s evidence which I was concerned about when indicating that I would grant the parties a further week to file any post hearing submissions. I am troubled by the fact that nothing has been filed addressing the inconsistent evidence given by Ms Ta compared to the sponsor’s and the applicant’s evidence at hearing.
Financial aspects of the Relationship
Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.
The applicants have filed evidence of a joint bank account; however, the transactions appear to reflect relatively limited use of the account.
The evidence before me is that the applicant and sponsor have lived with the sponsor’s mother and the sponsor’s four siblings since November 2018. The evidence at hearing was consistent that the sponsor’s brother Tommy bought a house in 2021 where the family currently live. However, the applicant and sponsor gave evidence that this is a four-bedroom house whereas Ms Ta gave evidence that it is a five-bedroom house.
The evidence at hearing was consistent about the sponsor and applicant’s workdays and hours. The applicant was well versed in the working environment and history of the sponsor including that she presently works at the same company as two of her brothers.
The evidence was relatively consistent about the applicant and sponsor’s income. However, the applicant gave evidence that his income from his exporting business goes directly to his family in Vietnam whereas the sponsor originally said that his income from this business went into their joint account. When I indicated that the joint account statements provided did not seem to indicate this, she said it goes into his own account. When I put this inconsistency to the applicant, he said he used to put the money into their joint account and after that he spends it for his family in Vietnam. I was not persuaded by this explanation.
The evidence was consistent that the sponsor commenced work shortly after completing high school and gives the majority of her income to her mother to support family and household expenses. The evidence at hearing was that Ms Ta does not work and receives government benefits.
Some gas and electricity bills in the applicant and/or the sponsor’s name at the same address have been filed.
The applicant’s tax documents listing the sponsor as his spouse for the last three years have been filed. I requested the sponsor’s tax returns at hearing. In post hearing submissions, the sponsor’s tax return of 2024 has been filed and this makes no mention or reference to the applicant or a spouse.
The applicant and sponsor gave evidence that they wish to buy a house together. When I asked if they had money saved for this, the applicant gave detailed evidence about tens of thousands of dollars of his savings that he has spent for health care for his family in Vietnam, most particularly hi grandmother, his father and two of his uncles who have had various expenses such as surgery and cancer treatment. He gave evidence that because of this they do not have savings for a house at this time and that his partner was not happy about him using such significant funds for his family. When I asked the sponsor, she said she has AUD2,000 saved for a house and that the applicant has funds saved and when I asked how much she said, ‘more than me’. When I asked the applicant if either she or the applicant had had any large expenses over the last few years, she said she did not think so. When I put this inconsistency to the applicant, he said he did have savings, but he spent it and that the AUD2,000 was his partner’s money and he is ‘not checking on her’. When I reminded him that he had said earlier that his partner was not happy about him spending the savings he gave evidence that he had tried to hide his spending. I did not find this consistent with his earlier evidence. I reminded him that when I asked her about any significant spending, she did not seem to know about it at all and the applicant said that was because he did not want to tell her. I reminded him that he had given evidence that they had argued about this and do not consider he was able to offer a meaningful explanation for this. In post hearing submissions, the applicant claims that he assumed his wife would ‘be ok with’ him using funds for urgent health issues of his family. This is also not consistent with the evidence he gave at hearing. I am very troubled by this evidence. I consider the applicant and sponsor do not have the level of knowledge about each other’s savings and significant spending that one would expect of a genuine de facto relationship.
I consider there has been minimal practical pooling of financial resources. The applicant and sponsor do not have any significant joint ownership of assets. They do not have any significant joint liabilities. There is no evidence that the applicants owe any legal obligations to each other.
I acknowledge there is evidence weighing in favour of the applicants in in relation to the financial aspects of the relationship. However, I consider the evidence weighing against the applicants outweighs the evidence in their favour in relation to the financial aspects of the relationship.
Nature of the Household
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.
I refer to and repeat paragraphs 32-39 above.
The evidence given by each witness at hearing was different regarding the sleeping arrangements of the sponsor’s family. Ms Ta gave evidence that the house has five bedrooms, and the applicant and sponsor gave evidence it has four bedrooms. The evidence was consistent that the sponsor and the applicant share a room and that the sponsor’s youngest sister sleeps with Ms Ta. However, Ms Ta gave evidence that all three of her sons have their own room, whereas the applicant gave evidence that Tommy and Kevin share a room and Bao has his own room, in contrast again the sponsor gave evidence that Tommy has his own room and Kevin and Bao share. When I put these inconsistencies to the applicant, he said that he often sees Kevin go into Tommy’s room to play games with him there, that he himself just goes to sleep and when he goes to work, they are not there as Tommy has a very large room with a big bed. I did not find this explanation persuasive.
The applicant is ten years older than the sponsor. The applicant gave evidence that he wants children, but his partner is too young. He gave evidence that he would like just one child as he sees how hard it is for Ms Ta with five children. I asked if the sponsor wanted children eventually and the applicant said she did and would want one or two. The sponsor gave evidence that she does not want children at the moment but if she did have children, she would want three or four and her husband wants two.
The evidence before me about household arrangements is relatively consistent with the applicant and sponsor helping Ms Ta and the sponsor’s children as much as they can.
The evidence was consistent that both the applicant and sponsor enjoy gaming.
The applicant was well versed in his wife’s habit of attending the gym most afternoons, although he did not know what sort of exercise she does there.
The evidence about the sponsor’s father was very concerning. The applicant gave evidence that the separation between Ms Ta and her husband was an amicable one and that the sponsor’s father still often came to the house for parties. When asked about a photo with the balloons ‘daddy’ in the background, he gave evidence that this was a celebration for the sponsor’s father that they had held at home. When asked if the sponsor’s father had re-partnered, he said he did not think so as he has not seen the sponsor’s father with a lady when he comes over. I found the applicant’s evidence about how often the sponsor saw her father evasive – initially he said he sees his father-in-law once or twice a month or even less because he (the applicant) is often at work. When I asked again how often his partner sees her father, the applicant said ‘any time when he comes’ and when I asked again, he said she saw her father about once a week. In contrast, the sponsor gave evidence that she sees her father most weekends when he comes over. The applicant and sponsor gave evidence that the sponsor’s father does not sleep over unless he has drunk too much in which case he sleeps on the couch. When I asked the sponsor if her father has re-partnered, she gave evidence that he has a new wife and helps with his new wife’s two children. When I asked whether he brings his wife when he comes over the sponsor gave evidence that he does sometimes. When I asked if the applicant had met the sponsor’s new wife, the sponsor gave evidence that her partner had met her father’s new wife a few times at family gatherings. When asked about a photo with the balloons ‘daddy’ in the background, the sponsor gave evidence that this was definitely not for her father and might have been for her uncle. When I asked the applicant about this inconsistent evidence, the applicant said most of the time he sees his father-in-law he comes with a friend and he is not sure, he does not ask much about that. I did not find this explanation persuasive.

In post hearing submissions, the applicant claims that he did not ask the sponsor about whether the balloons ‘daddy’ were for her father and just assumed it was her father’s birthday because her father also attended that party as well as her uncle. In post hearing submissions, the applicant repeated h is claim that he did meet his sponsor’s father’s new wife but did not realise it was his partner and thought she was just a friend. I do not find these explanations persuasive and note that the applicant’s lack of knowledge of these details suggest that the parties do not share the level of knowledge about each other’s family reflective of a genuine de facto relationship.
Exacerbating the already inconsistent evidence, when I asked Ms Ta about her relationship with her ex-husband she said, ‘I have no idea where he is, when I got pregnant, he left me’. She confirmed that this was relating to her pregnancy with her fifth child. When I asked if she had seen him since her pregnancy with her fifth child, she said sometimes if she has attended a party, she has met him, but this was vey occasionally. When I asked if her children have a relationship with their father, she gave evidence that only her youngest daughter (who is not the sponsor in this case) keeps a relationship with her father.
I am deeply troubled by the inconsistent evidence regarding the nature of the relationship of the sponsor and sponsor’s family with the sponsor’s father and the sponsors’ father’s current marital situation.
The evidence was consistent that the applicant travelled to Vietnam for four of five days of the sponsor’s trip in late 2024. The evidence was consistent that the sponsor stayed in Vietnam for around three weeks and that the purpose of her trip was to see her great aunty. However, the evidence about the applicant and sponsor’s living arrangements during the applicant’s stay in Vietnam was not consistent.
When I asked the sponsor why she did not travel with her partner and mother to Vietnam in 2019 she said she did travel there and that she just was not in the photos and that she was ‘sleeping or something. She gave evidence that she first met the applicant’s parents and sisters in 2019. I noted the sponsor’s movement records suggested that she did not travel to Vietnam prior to 2024. When I reminded the sponsor that she had given evidence earlier in the hearing that she first met the applicant’s parents in 2019 and said she had travelled to Vietnam with her mother and partner in 2019 she did not seem able to respond. When this inconsistent evidence was put to the applicant, he gave evidence that the sponsor was confused and had not remembered correctly.
The applicant has travelled to Vietnam for his work many, many times and the sponsor has only travelled to Vietnam during one of these trips. The evidence was consistent that this is because the sponsor has a lot of difficulty getting time off work.
A number of statutory declarations have been filed in this case. Some refer to accompanying the applicant and sponsor on camping trips. When I asked the applicant about this, he gave evidence that he has only been camping once and that Ms Ta and the sponsor’s four siblings accompanied them. He gave details about how far away the camping place was and that although this was his first camping trip, the sponsor’s family had been camping before. In contrast, the sponsor gave evidence that she has never been camping and is not an outdoors person. She gave evidence that her family might have been camping once when her parents were still together with her mother’s side of the family. I note that the sponsor’s parents separated prior to her claimed relationship with the applicant. Ms Ta gave evidence that she has never been camping before. When I asked if her daughter or the applicant had ever been camping before she said yes but was unable to recall where they went. I asked if her other children went with them, and she said no. I asked if she had ever been on a holiday with the sponsor and applicant and she said ‘no, I never went with them’ and that this is their ‘own issue’ and she does not interfere with their routines. When I put these inconsistencies to the applicant, he said that when referring to ‘camping’ he meant places in nature and where ‘you go outside with family to have food’. The applicant repeated these submissions in his post hearing statutory declaration and has filed a photo where the space between two vehicles is covered by a tarp with individuals picnicking underneath it with the ocean in the background. I remain troubled by this evidence. Whilst there may have been some confusion about what was meant by ‘camping’, Ms Ta gave clear evidence that she has never been away with her daughter and the applicant, and that her other four children did not accompany them when they went away.
I find the inconsistent evidence given regarding living arrangements and other matters regarding household arrangements concerning. I consider the evidence weighing against the applicants regarding the household aspects of the relationship outweigh the evidence in their favour.
Social Aspects of the Relationship
Whether the applicants represent themselves to other people as being in a de facto relationship with each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
I refer to and repeat paragraphs 43-56 above.
The applicants have filed some photos together and out with others including photos with the sponsor’s siblings. The quantity of photos filed is relatively small given the length of the claimed relationship, being over five years now.
The evidence at hearing about the applicants’ engagement was inconsistent – the applicant and sponsor both gave evidence that this occurred at a restaurant and that Ms Ta was present. The applicant said he proposed at the end of the night whereas the sponsor said he proposed when she arrived. Ms Ta, however, gave evidence that she had not been present when the couple got engaged and they told her when they got home.
The evidence at hearing was consistent that the sponsor’s father was having eye surgery on the day of the hearing and that the sponsor’s brother Tommy was taking him to the hospital.
The applicants have filed statutory declarations or statements from friends who have known them for a number of years attesting to the relationship although I find these documents to be relatively generic. There are no statutory declarations or statements from the sponsor’s siblings or the applicant’s family.
Documents addressed to ‘Kim Nguyen’ have been filed. At hearing, I asked who this was and the sponsor and her mother both gave evidence that ‘Kim’ was the sponsor’s preferred name with her friends and colleagues, although she is called ‘Phuong’ at home by her family. However, when I asked the applicant about this, he said this document was a mistake and his partner’s name had been misspelt. When I put to the applicant later in the hearing that his wife had given evidence that this was her preferred name, he said he never calls her that. I asked how it would be he does not know that this is what her friends call her, he said ‘I’m not in contact with her friends’. I am very troubled by this evidence and am concerned that the applicant would now know his partner of five years preferred name socially.
The evidence falling against the applicants regarding the social aspects of the relationship outweighs the evidence in their favour.
Nature of the applicant and the sponsor’s commitment to each other
The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.
I refer to and repeat paragraphs 59-64 above.
The applicants claim to have been in a relationship for five years now and gave evidence that they plan to buy a house together, get married and possibly have children.
The applicants have filed text message exchanges.
At hearing, I asked the applicant if either of them had had any injuries as one of these messages referred to bleeding and bandages. The applicant gave evidence that the sponsor had had a problem with anxiety in the last few weeks feeling stressed and finding it hard to breathe. He said he took her to hospital, together with Ms Ta, and was asked to wait outside and the doctor told him not to make her stressed. He gave evidence that his partner takes evidence just when she has symptoms. When I asked who looked after the other children with Ms Ta attending hospital with them, the applicant gave evidence that Tommy and Kevin were home and could look after the younger two siblings. When I asked the sponsor if she has mental health challenges, she said she suffers from depression and anxiety but has not been to hospital for this as her siblings usually calm her down and give her a class of water. When I asked if she had ever been to hospital, she gave evidence that she took a hit to her head with her younger brother once and had to go to hospital and received pain relief. I asked her who took her hospital, and she said her brother Tommy drove her. I asked if the applicant was there and she said, ‘no he was working’. When I put this to the applicant, he said that was his mistake and that it was ‘for another reason’. When I asked why he had said he had driven her to hospital he said he could remember one time he took her to the family doctor. I did not find this explanation persuasive.
In post hearing submissions, the applicant states that he was thinking of a different time that the applicant was unwell and that her brother took her to the hospital on a different occasion that he did not know about. I do not find this explanation persuasive.
I do not consider the evidence in relation to the degree of companionship and emotional support that the applicant and the sponsor draw from each other is consistent with a genuine de facto relationship of five years.
Other Matters
The Tribunal Guidelines in relation to assessing credibility dictate that evidence is to be assessed in its entirety, not just in isolated parts.[15] The guidelines also state that Members should focus on what is objectively or reasonably believable in the circumstances. The Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.[16] Where evidence is incoherent, vague or lacking the detail or knowledge where greater detail or knowledge might be expected of a person in the applicant’s claimed position, the weight placed on the applicant’s evidence may be limited and the applicant’s credibility may be questioned.[17]
[15]Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997); Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J, with whom North J agreed, at [50]; Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
[16]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at 348.
[17]Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827 per Tamberlin J at [9], upheld on appeal, Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963 per Goldberg J at [20] to [23]; “T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [27]-[47]
Taking the evidence as a whole, I have concerns about the applicant and the sponsor’s credibility, and I am not satisfied that they have provided reliable or truthful evidence in relation to a number of aspects of the questions asked at hearing as set out above.
Although I accept that there are some aspects that fall in the applicants’ favour in this case, I give greater weight to the inconsistent evidence and evidence lacking in credibility and reliability. I consider the latter evidence raises doubts about the applicant and sponsor’s veracity in their evidence about the genuineness of the relationship.
The Full Federal Court has held that people enter into marriages with a variety of purposes and motives and 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.[18] I consider this authority is equally applicable to de facto relationships. Even allowing for the Full Federal Court’s view on this issue, I consider this case is motivated by a desire to secure a positive migration outcome and that the applicant and the sponsor are not in a genuine de facto relationship.
[18] Re MILGEA and Dhillon [1990] FCA 144.
CONCLUSIONS
There are hundreds of pages of documents before me and I have read and carefully considered each of these, although they may not all be referred to in the written decision herein. I have assessed the evidence. I accept the applicant and the sponsor have known each other for some time but I do not consider their relationship is that of genuine de facto partners.
Having regard to all of the circumstances of the relationship and the evidence taken as a whole, I am not satisfied that when the application was made and at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others or that their relationship is genuine and continuing or that they are living together, or not separately and apart, on a permanent basis.
I am not satisfied that the requirements of section 5CB are met at the time the visa application was made or at the time of this decision.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Dates of hearing(s):  6 March 2025
Representative for the Applicant:           Mr Michael Hanrahan (MARN: 1463825)
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).