TRAN (MIGRATION) - [2024] ARTA 224

TRAN (MIGRATION) [2024] ARTA 224 (13 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Minh Tam Chuong Tran
Tribunal number:  2200353
Respondent:  Minister for Home Affairs
Tribunal:General Member, B Maiden
Date:13 November 2024
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations;
·cl 820.221(1)(a) of Schedule 2 to the Regulations; and
·reg 2.03A.

Statement made on 13 November 2024 at 5:00pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – not in de facto relationship for 12 months before application made – passage of time and relationship now registered – limited evidence of joint finances – consistent evidence of household and social aspects of relationship and nature of commitment – supporting statements and photos – future plans – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a)
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Statement of reasons

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicant, a 28-year-old Vietnamese national applied for the visa on 28 June 2019 on the basis of his relationship with his 28-year-old Australian citizen sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant.
The delegate refused to grant the visa because the delegate was not satisfied that the parties had been in a de facto relationship for 12 months or more prior to the visa application lodgement on 29 June 2019. The delegate found that there was no compelling reason to waive the requirement, and that none of the exceptions in reg 2.03A(3) applied. Accordingly, the delegate found that the parties had not been in a de facto relationship for 12 months at the time of application and did not meet reg 2.03A or cl 820.211(2) of Schedule 2 to the Regulations.
The applicant appeared before the Tribunal on 29 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. Section 348A(1) of the Act states that the “Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or reviewable protection decision for the purposes of the ART Act.” [1] Accordingly, the Respondent did not appear so there was no contradictor present.
[1] ART Act is the Administrative Review Tribunal Act 2024 (Cth).
The applicant applied for review on 10 January 2022 and in doing so attached a copy of the notification and decision from the Department.
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 parties are in a de facto partnership, and whether the parties were in a de facto partnership for 12 months prior to the time of the visa lodgement on 28 June 2019. The Tribunal has also had regard to evidence of events subsequent to the date of the visa application.[2]
[2] 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.
Are the parties in a spouse or de facto relationship?
Clause 820.211(2)(a) 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. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen. A copy of the sponsor’s Australian passport appears on the Department file. The applicant also submitted a copy of the sponsor’s Australian citizenship certificate.
Are the parties in a de facto relationship?
'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).
In forming an opinion about whether the parties are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
The applicant has provided evidence that the relationship was registered on 20 July 2022 as a domestic relationship under the Victorian Relationships Act 2008 as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5). Accordingly, the 12 month requirement does not apply and the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.
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.
Do the parties have any joint ownership of real estate or other major assets? Do the parties have any joint liabilities?
The parties gave consistent evidence that that they have no joint ownership of real estate or major assets together.
Although the parties’ updated statement dated 27 October 2024 states that they purchased a car together, the information submitted about the car tends to indicate it was purchased by the applicant and registered in the applicant’s name. For these reasons the Tribunal does not accept that the car is jointly owned or that the parties have any joint assets together.
(a)What is the extent of any pooling of financial resources?
The Department file contains copies of the parties’ joint ANZ interim statement of accounts from 26 April 2019 to 14 May 2019. In that statement, although there are various transfers into the account, the only transfer which is clearly made by a party is from the applicant. Payments were also made by Encore, Footscray which the applicant told the Tribunal is the pizza shop owned by his cousin on the ground floor below his residence. The applicant used to work at the pizza shop and thought it was his wages. The Tribunal discussed its concern that it did not appear that the sponsor was contributing to the joint account at that stage. The applicant did not clarify the position.
The applicant submitted numerous copies of the parties’ joint bank statements between 26 April 2019 until 26 June 2024. The first statement shows that the account was opened on 26 April 2019. Statements that were submitted from that time until 26 April 2021 show the Barkly Street, Footscray address (except statement 7 which appears to be missing from April to June 2020).
Statements 13 starting from 26 April 2021 until statement 18 from 25 February 2022 until 26 April 2022 show the address details as “Address not found”. It is not clear what the position was for statement 19 from April to June 2022 as it was not submitted. From statement 20 which starts on 24 June 2022 to statement 30 from 26 February 2024 to 26 April 2024 the Barkly Street, Footscray address details appear again. Additionally, in statement 30, it is clear that the applicant is making deposits into the account but it is not obvious that the sponsor is making any deposits. The Tribunal discussed this with the applicant and he told the Tribunal that the sponsor was paid into her own account and the parties’ transferred money into the joint account when they need to pay bills. The Tribunal indicated that it was not sure that the parties were combining resources financially but noted a lot of deposits were coming into the joint account but it was not clear whose account they were coming from. The applicant did not respond. When the Tribunal asked the sponsor how it would know that the money coming into the joint account was coming from her, she said her money was mostly used for saving for a house. She also had a salary packaging card (the applicant had a card too) that they could use for groceries and bills. No statements from the sponsor’s accounts or salary packaging was submitted.
The parties’ updated relationship statement dated 27 October 2024 states that the parties use the joint bank account:
for household expenses, including rent, groceries, dining, and transportation. Both of us have bank cards for this account, and we also access this account through internet banking on our phones…
Although we maintain individual bank accounts for personal finances, we are open with each other and can access each other’s accounts through internet banking on our phones…
Chuong’s salary is deposited into his personal account, and he transfers money into our joint account to cover shared expenses like rent and bills. Trang’s salary is deposited into her own account, which she primarily uses for saving toward our future home. While saving, Trang also contributes to household expenses by covering some groceries and other daily needs.
Pay slips submitted for the applicant from May to October 2024 indicate that his wage goes into an account ending in 1560. However, in the interim statement of the parties joint account submitted from the applicant from 26 April 2024 until 21 October 2024, there does not appear to be any transfers from his account ending in 1560. The applicant told the Tribunal he had been transferring money into the sponsor’s personal bank account as the parties obtained a loan pre-approval in May 2024. He transferred all his savings to the sponsor for that reason. However, there were times during that period where the narration on the joint account indicates that the applicant had made deposits into the account.
The Tribunal accept that the parties had a joint account at the time of application and time of decision though the Tribunal does not accept that the joint account shows demonstrates pooling of financial resources as it is not clear that the sponsor deposits funds into the joint account. Although the parties claim to pool financial resources in other ways, there was limited evidence submitted to support the parties’ claims. At the time of decision, there is little evidence that the parties’ combine financial resources together and the Tribunal affords it little weight.
What is the extent that one person in the relationship owes any legal obligations in respect of the other?
Both parties gave consistent evidence that the parties’ respective phone bill was under the sponsor’s name as the sponsor is the Australian citizen and the applicant cannot sign the phone contract. To this end, the applicant submitted numerous phone bills from Optus with the first on 26 October 2022 until 26 October 2023 and then bills from Vodafone to the sponsor from 4 December 2023 until 4 May 2024. The Tribunal accepts that at times the sponsor has owed legal obligations to the applicant and affords this some weight. There is no evidence of this at the time of application.
What is the basis of any sharing of day-to-day household expenses?
The parties’ first bank statement from 26 April until 26 June 2019 shows some day-to-day household expenses including telecommunications, supermarket purchase, fuel, fast food, bakery products, purchase of accessories, clothing and department store purchases. However, it is not clear from the statement that the sponsor is making any contributions to the account and therefore, the Tribunal does not accept that the joint statement demonstrates that the parties’ share day-to-day household expenses. For this reason the Tribunal affords this little weight at the time of application.
The applicant submitted the parties’ joint car insurances showing a garaging address at Barkly Street, Footscray from: 5 February 2021 until 5 February 2022; 5 February 2022 until 5 February 2023; 3 June 2022 until 2 June 2023 and 3 June 2023 to 2 June 2024. The Tribunal affords this a small amount of weight at the time of decision.
The applicant told the Tribunal that the parties pay the applicant’s cousin $1,200 for rent and other expenses and the parties share the groceries. The applicant pays for car registration and the applicant pays for car insurance and groceries which come out of her personal account or the joint account (the Tribunal has already discussed that it is not clear that the sponsor contributes to the joint account and the sponsor’s accounts were not submitted). The applicant pays sums from his personal account or joint account for fuel, dining, paying and other things.
According to the parties’ updated relationship statement dated 27 October 2024, “[e]very month, we use this account to withdraw around $1,200 AUD in cash to pay rent, as Chuong’s cousin prefers cash payments for the house we rent. Our bank statement show regular usage of this joint account for groceries (e.g. Coles, Woolworths), dining out, and transportation costs (e.g., Uber, VicRoads), showing how we share responsibility for our living expenses.”
However, in the latest statement of the parties’ joint account that was submitted from 26 April 2024 until 21 October 2024, in October, the only purchases that were made were for Snap Fitness and VicRoads. No groceries or dining out was paid. The period of September 2024 shows the following purchases: Chain Retail Pty Ltd, Snap Fitness, Foodle Asian Grocery for a purchase of $2.99, Dumpling Alley purchase of $16.15, and the remaining debits were transfers out of the account. It does not appear that groceries or transportation costs came out of the account in that time. The Tribunal discussed these matters with the applicant. He stated that this was the period after he transferred his savings to the sponsor’s bank account (no evidence of this other than the parties’ claims was provided), and for convenience he uses his own bank account. The parties are going to Sydney on 30 October 2024 and the applicant thought he paid for it out of the parties’ joint account. The Tribunal noted that it was not in the statement submitted, but that may have been because the applicant claims to have paid for the trip the week before the hearing and the joint account statements submitted to the Tribunal may not have covered that period. The Tribunal is not satisfied at the time of decision that the joint account shows the parties’ sharing day-to-day household expenses. Although the parties claimed to share household expenses including using their personal accounts and the applicant’s salary packaging card, no evidence of this was submitted to the Tribunal. For this reason, the Tribunal affords this little weight.
Conclusion on the financial aspects of the relationship
At the time of application, in relation to the financial aspects of the parties’ relationship the parties have no joint ownership of real estate or other major assets together. There is no evidence that one party owes any legal obligations to the other. Although the Tribunal accepts that parties had a joint account, it is not clear from the statements how the sponsor contributes to that account and therefore, the Tribunal does not accept that the parties pooled their financial resources into that account. Although the joint account shows the purchase of day-to-day household items, it is not clear how the sponsor contributes to the joint account and therefore, the Tribunal is not satisfied that the joint account shows the sharing of day-to-day household expenses. No other evidence of the sharing of household expenses was submitted at the time of application. On balance, at the time of application, the financial aspects of the parties’ relationship do not support the parties being in a genuine and continuing relationship.
At the time of decision, the parties still have no joint ownership of real estate or major assets together. The parties continue to maintain a joint account, but it remains unclear how the sponsor contributes to it. Although the parties claim to pool their financial resources in other ways there is little evidence to support their claims. The Tribunal accepts that for certain periods the sponsor has owed legal obligations to the applicant by way of the phone contracts. There is a small amount of evidence of day-to-day household expenses, but it is not clear from the joint account (given that the sponsor’s contribution to it is not obvious) that these expenses are shared. On balance, at the time of decision, given the parties’ claimed relationship duration, the financial aspects of the parties’ relationship do not provide much support for the parties being in a genuine and continuing relationship.
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.
(a) Do the parties have any joint responsibility for care and support of children?

There is no evidence before the Tribunal at the time of application that the parties had any joint responsibility for the care and support of any children.
(b) What are the parties' living arrangements?
The applicant’s statement on the Department file dated 11 February 2021 states that the sponsor moved in with the applicant on 20 April 2019. The parties continue to reside at the same address at the time of decision, and the parties’ updated relationship statement dated 27 October 2024 indicates that they have two housemates.
Both parties gave consistent evidence at the hearing as to their address and the individuals that resided with them at the time of application and time of decision. The Tribunal affords this some weight.
(c) Do the parties share the responsibility of housework?
The applicant’s statement on the Department file dated 11 February 2021 states that the sponsor moved in with the applicant on 20 April 2019 and the sponsor helps the applicant with “cooking, domestic cleaning and doing the laundry”. On the applicant’s day off, the parties buy groceries, shop and have lunch. The parties joint statutory declaration dated 27 May 2024 states that the parties love cooking, the applicant takes care of the car and heavy duties and the sponsor prepares meals. On applicant’s days off, the parties buy groceries have lunch and shop.
The parties’ updated relationship statement dated 27 October 2024 states that the applicant usually cooks on the weekends and the sponsor cooks during the week when he has time off. Cleaning is shared equally between the parties.
The Tribunal accepts that there is some sharing of the responsibility of housework at the time of application and time of decision and affords this some weight.
Conclusion on the nature of the household
At the time of application and time of decision, the parties have no children of their own and no joint responsibility for the care and support of their children. At both times, the parties gave consistent evidence as to their living arrangements together which the Tribunal accepts and there is some evidence at both times that they share the responsibility of housework. At both times, the nature of the household provides some support of the parties being in a genuine and continuing relationship and living together and not separately apart on a permanent basis.
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 in a de facto relationship with 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.
(a) Do parties represent themselves to other people as being in a de facto relationship with each other? (b) What is the opinion of the parties friends and acquaintances about the nature of the relationship?
The Department file contains form 888 statutory declarations from:
a.Mr Khoa Duc Pham dated 11 February 2021. At the time of the declaration he knew the applicant for five years and the sponsor for three years as he was the former housemate of the parties. The statement indicates that parties were living at a share house but it does not say when. The parties show affection to each other in front of others, and go hand-in-hand and are proud of their relationship. The applicant is open about his relationship with the sponsor and is more “joyful” since he met the applicant. The sponsor understands the applicant, cheers him up and helps him overcome his issues.
b.Mr Ilya Katanos dated 11 February 2021. At that time he had known the applicant for five years and the sponsor for three. He is the business partner of the applicant’s cousin. He met the sponsor some time in June 2018 at the applicant’s house. The sponsor moved in with the applicant in April 2019. The parties “complement each other & encourage each other to work hard at their relationship.” They are like minded, agreeable on many life aspects and express their affection by hugging and holding hands. The parties discuss their intention to marry.
The applicant submitted form 888 supporting statements from:
(a)Ms Alexis Sukri dated 26 May 2024, who has known the applicant for four years as he is employed at her family owned business Gami Chicken Restaurant. She sees him weekly during his shifts and the sponsor who she has known for four years at staff parties. Ms Sukri speaks to the sponsor about future family, and kids. She has discussed with the parties their future plans “such as planned holidays, property purchase and starting family”.
(b)Mr Edwin Sukri dated 26 May 2024, who has known both parties for four years. He owns the restaurant where the applicant is employed. He sees the applicant’s “partner” two or three times a week as she picks him up and drops him off. He speaks to the applicant about future family, financial investments and savings and potential areas for houses. He speaks to the applicant about the parties’ “future together, from providing a potential area to purchase a house, how to best get a loan, to even advice on kids”. The applicant is a hardworking and dedicated to providing and supporting the applicant for their future goals.
(c)Mr Ilya Katanos dated 24 May 2024. This is Mr Katanos’ second statement. At the time of the statement he had known the applicant for eight years and the sponsor for six. He met the sponsor more regularly after she moved in with the applicant in April 2019. He often dropped in once a week for a catch up, and still catches up regularly with the parties The parties have been together for more than six years and live together. “They are constantly talking about wedding plans, buying a house, which suburb, starting a family before they hit their 30’s. They are proud of each other…” The parties were there celebrating Vietnamese lunar new year in 2017, 2019, 2020, 2022, 2023 and 2024. They are a like minded agreeable couple on many aspects of life & understand each other.” They express their affection, want to get married, buy a house and have two children.
(d)Mr Khoa Duc Pham dated 25 May 2024. This is the second statement of Mr Pham. He has known the applicant since 2015 and the sponsor since 2019. The parties “share the same values of hard work, kindness, and giving back to the community…”. During the time he lived with the parties he saw them daily. After he moved out he sees them once a week to “hang out and have dinner together”.
(e)Mr Marvin Vuong, dated 25 May 2024. He has known the applicant for three years and the sponsor for 2.5 years. He is the applicant’s friend and met the sponsor through the applicant at the staff party. Sometimes she picks the applicant up. He goes out with the parties to cafes and dinners. They have sometimes invited him to their house in Footscray and are looking to buy a house together. The parties make time for each other and travel a lot.
(f)Ms Nhu Quynh Cam Ly dated 26 May 2024. She has known the applicant, her cousin for 28 years and the sponsor since 2017. She used to live together with the parties at Barkly Street, Footscray in 2018 and it was there that the applicant introduced her to the sponsor and announced they were dating. The applicant announced the parties’ relationship in 2018. The parties moved in together in 2019. Ms Ly has shared day-to-day activities and special events with the parties. The sponsor supports the applicant. The parties share similar values in life and have a passion for travel. Ms Ly’s family recognises them as a couple and supports their relationship. The parties have shared their future plans to obtain their first home together, start a family and have a wedding.
(g)Mr Tan Phong Tran dated 25 May 2024. He has known the applicant for nine years through his cousins when he came to Australia in 2019 and became good friends. The applicant introduced him to the sponsor as a couple in 2018. They usually catch up a few times a month. The parties have resided together since 2019. The parties “…interactions exude warmth, laughter and genuine affection… they’ve confided in me about acquiring their first home and planning their upcoming wedding.”
(h)Mr Ricky Quang dated 25 May 2024, who has known both parties for five years He met the applicant in 2018 and saw him weekly at work. He met the sponsor at that time, and saw her more frequently after the parties moved in together in 2019. The parties are loving and understanding to one another and are in love.
(i)Mr Huu Tam Nguyen dated 25 April 2024. He has known both parties for four years, and the applicant from work at the Crown Casino since 2020 where they work in the same restaurant and became friends. They spend time together having dinner and holidaying at Lakes Entrance. The parties have planned to buy a house and to have children and get married.
(j)Mr Tony Nguyen dated 24 May 2024 who has known both parties for 1 year. He and the applicant are co-workers and became friends. He sees the sponsor visit the applicant during breaks and after hours he goes to drinks with the parties. The parties share the same goal of obtaining a house together and getting married.
(k)Mr Alex Chan dated 24 May 2024, who has known both parties for three years. He met the applicant through work as he is currently employed at Gami Fried Chicken and Mr Chan is a co-owner. He sees the applicant’s partner, the sponsor weekly when she comes in to visit. He chats with the parties about their future of buying a house and staring a family together. The parties relationship is loving and true.
The Tribunal is satisfied that at the time of application and time of decision the parties represent themselves to other people as being in a de facto relationship and there is opinion of evidence from the parties’ friends and acquaintances as to the nature of their relationship. The Tribunal gives some weight to both matters at the time of application and time of decision.
(c) Is there any basis on which the persons plan and undertake joint social activities?
The Department file contains a Tigerair booking reference dated 30 December 2018 for flights for the parties from Melbourne to Brisbane on 6 January (though the year is not clear). It is not clear from the documents on the Department file whether the parties actually stayed together or not. Photographs were submitted of the parties’ in front of a Brisbane sign but it is not clear from the photograph when it was taken as it is neither labelled nor date stamped. An Airbnb receipt dated 6 January 2019 was submitted from 6 January 2019 until 8 January 2019 for an entire home/apt with “2 beds – 1 guest”, indicating that the parties may not have stayed together.
The Department file contains various photographs of the parties at different locations together, with others seemingly at a birthdays and the parties in Sydney and in Brisbane. The photographs are neither labelled nor date stamped so it is not clear who is the photographs nor where they were taken.
The applicant submitted:
a.Tigerair tax invoice showing the parties being booked on to flights from Melbourne to Brisbane on 6 January (though the year is not clear but the cover pages of the documents submitted indicates that it was in 2019);
b.Jetstar boarding passes for both parties to travel on 6 February 2023 from Melbourne to Brisbane;
c.Jetstar boarding passes for both parties to travel on 15 January 2024 from Melbourne to Hobart returning on 19 January 2024.
Photographs submitted to the Tribunal by the applicant which are labelled and dated show the following:
a.2018: The parties holidaying on the Gold Coast.
b.2019: The parties holidaying in Brisbane and in Sydney. The parties celebrating birthdays with others and the parties together in various locations in Melbourne.
c.2020: The parties in various locations together in Melbourne, the parties with others on the applicant’s belated birthday and the parties in various locations in Melbourne.
d.2021: The parties at Peninsula Hot Springs, the parties at a family gathering, the parties at the Yarra Valley, the parties at Sorrento, and the parties and family celebrating the sponsor’s birthday.
e.2022: The parties attending a lunar celebration at the applicant’s cousin’s house, the parties celebrating New Years Eve, the parties at various locations together in Victoria, the parties at the applicant’s cousin’s birthday.
f.2023: The parties at various locations in Victoria, the parties at the Lunar New Year celebration with others, the parties at Quang Minh Temple, the parties at Moreton Island and North Stradbroke Island, the parties at the Fo Guang Shan Chung Tian Temple in Queensland, the parties at various locations in Victoria and the parties at a Christmas party.
g.2024: The parties at various locations in Victoria, the parties in Tasmania and the parties in Sydney.
The Tribunal also notes the evidence in statements submitted that indicates that the parties socialise together with others.
Based on the evidence before it, at the time of application and time the time of this decision the Tribunal is satisfied that the parties have planned and undertaken joint social activities and affords this a small amount of weight at the time of application and some weight at the time of decision.
Conclusion on the social aspects of the relationship
At both the time of application, the Tribunal is satisfied that the parties represent themselves to other people as being in a de facto relationship with each other, there is opinion evidence from the parties’ friends and acquaintances about the nature of their relationship and there is evidence that the parties have planned and undertaken numerous joint social activities together. On balance, at both times, the social aspects of the parties’ relationship support 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.
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.
(a) What is duration of the parties’ relationship?
The applicant’s statement on the Department file dated 11 February 2021 states that the parties met on 2 December 2017 when the applicant was visiting his cousin’s restaurant Mix and Match Pizza. The sponsor was their new employee and in training. The parties had their first date on 12 March 2018. On 15 April 2018 the applicant confessed his feelings for the sponsor. On 7 August 2018, the applicant picked the sponsor up and went to a restaurant for a surprise candle-lit dinner for the sponsor’s birthday that the applicant had organise. On Christmas and New Years Eve (seemingly in 2018-2019) based on the earlier dates in the statement, the parties presented themselves as a couple. This date is consistent with the parties’ joint statutory declaration dated 27 May 2024.
At the time of application, the parties had been in a relationship for approximately 6 months. The Tribunal gives this a small amount of weight. At the time of decision, the parties have been in a relationship for over five and half years. The Tribunal affords this moderate weight.
(b) What is the length of time that the parties have lived together?
The applicant’s statement on the Department file dated 11 February 2021 states that the sponsor moved in with the applicant on 20 April 2019 to Barkly Street, Footscray. This is consistent with the parties’ joint statutory declaration dated 27 May 2024, the representative’s submissions dated 29 May 2024, the parties’ oral evidence at hearing and some of the witness evidence in the statements.
The applicant told the Tribunal that the parties had lived together since April 2019 except when the sponsor went to visit her family in 2019, went to Japan with some workmates for a holiday and went to the conference on the Gold Coast. The Tribunal accepts this evidence.
The Tribunal has sighted numerous pieces of correspondence and e-mails confirming delivery of various items addressed to both parties noting the Barkly Street, Footscray address as well as the sponsor’s Victorian learner permit and the applicant’s Victorian probationary driver licence. Some of the documents are undated, but the documents that are dated range from April 2019 until October 2024.
At the time of application, the parties were living together for approximately two months. The Tribunal affords this a small amount of weight. A the time of decision, the parties have been living together for over five years which the Tribunal affords moderate weight to.
(c) What is the degree of companionship and emotional support that the parties draw from each other?
The Department file contains a voluminous amount of untranslated chat records between the parties from February 2018 until November 2018 (these were also resubmitted to the Tribunal but started from January 2018 and ended in December 2020). The messages are very brief. Because the Tribunal cannot decipher what the parties are saying to each other, it cannot decipher the degree of companionship and emotional support that the parties draw from each other, save to say that the parties have communicated between this period.
The parties’ joint statutory declaration dated 27 May 2024 states that in May 2022, the applicant’s grandmother died, and the sponsor provided support and understanding and offered him a shoulder to lean on and listened to him. She was a source of strength and allowed him to navigate his grief with love and support. Both parties gave evidence consistent with this at the hearing.
The applicant told the Tribunal that when the sponsor is struggling at work he cheers her up. He wants her to feel safe. During COVID the sponsor was mentally breaking down. She had to do overnight shifts and was too busy. He picked her up and took her workplace and picked her up daily. When they were dating and before they moved in together the sponsor was doing work placements and he often picked her up and dropped her home. The sponsor said that the applicant has helped her with her exams and took her to university and her placements. Whenever they have gone house hunting the sponsor has taken time of work to inspect houses with her. Through COVID she worked a lot and it is important that the applicant is by her side making decisions with her. She does not have family here and he is the most reliable person for her.
The Tribunal accepts that at the time of application and time of decision that the parties obtain emotional support from each other, and affords this some weight at both times.
(d) Do the parties see the relationship as long-term?
The applicant’s statement on the Department file dated 11 February 2021 states that after the COVID-19 pandemic has been resolved the parties plan to return to Vietnam to visit the applicant’s parents and discuss their wedding preparation with them. After the parties wedding the parties want to have children together, but want to have a home first which they plan to purchase within the next five years.
The parties’ joint statutory declaration dated 27 May 2024 indicates that the parties are saving for their first home deposit which has been a goal since they committed to a de facto relationship. The parties wish to purchase a home prior to planning to have a wedding. The parties want to have children, and plan to purchase a home within the next five years.

The parties’ updated relationship statement dated 27 October 2024 states that the applicant is not a permanent resident, and the parties cannot apply for a joint home loan, as the applicant is a “foreigner” and faces higher taxes on property purchases. The parties have decided that the sponsor will take the loan out in her name. To this end the applicant submitted a conditional approval dated 4 September 2024 addressed to the sponsor only. However, the parties do not own any assets together or have any liabilities together at either the time of application or time of decision.
The parties’ updated relationship statement dated 27 October 2024 states that the parties plan to:
·Open our own business in the hospitality industry, with Chuong taking the lead as he has experience in this fiend.
·Stabilize our financial situation to ensure we can provide a secure and comfortable future for ourselves.
·Start a family and have children in the coming years.
·Bring both of our parents to Australia, allowing us to support them in their later years and create a closer family unit.
·Continue traveling and exploring new places together, as we both enjoy travel and have made several trips together.
At the hearing the parties gave generally consistent about their travel plans for the future, the countries that they wanted to visit including going to see their families in Vietnam. The sponsor gave evidence that if the applicant could not stay in Australia she would move to Vietnam to be with him, but would prefer to stay in Australia as her work is here. The parties would find a way to stay together.
The Tribunal accepts that at the time of application and decision there is some evidence that the parties see the relationship as long-term, and the Tribunal affords this some weight at both times.
Conclusion on the nature of the persons’ commitment to each other
In relation to the nature of the persons’ commitment to each other, at the time of application, the parties had been in a relationship for approximately 6 months. The parties had lived together for approximately two months. There is evidence that the parties draw emotional support from each other and see their relationship as a long term one. On balance, 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.
In relation to the nature of the persons’ commitment to each other, at the time of decision, the parties had been in a relationship for over five and a half years. The parties had been living together for over five years. There is evidence that the parties draw emotional support from each other and see their relationship as a long term one. On balance, at the time of decision the nature of the persons’ commitment to each other supports 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.
Are the parties related by family?
There is no evidence before the Tribunal that the parties are related by family.
For the reasons set out in the reg 1.09A matters, the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time the visa application was made and at the time of this decision.
Therefore the applicant meets cl 820.211(2)(a) and cl 820.22(1)(a) of Schedule 2 to the Regulations.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations;
·cl 820.221(1)(a) of Schedule 2 to the Regulations; and
·reg 2.03A.
Date(s) of hearing:  29 October 2024
Representative for the Applicant:           Mr Hunter Te (MARN: 1804811)
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).