TRAN (Migration)

TRAN (Migration) [2022] AATA 3275 (29 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr QUANG ANH TRAN
REPRESENTATIVE:  Mr Alan Duri (MARN: 1684393)
CASE NUMBER:  1819799
HOME AFFAIRS REFERENCE(S):          BCC2017/1867380
MEMBER:Meena Sripathy
DATE:29 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 29 September 2022 at 10:00am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – living with family members reduces documentary evidence – age and duration of relationship – travel separately or with others – study, work and financial limitations – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a), (4)
CASE
He v MIBP [2017] FCAFC 206
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 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 applied for the visa on 25 May 2017 on the basis of his relationship with his sponsor, Ms Dieu Ly Nguyen. 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied the applicant was the spouse of the sponsoring partner within the meaning of that term in s5F of the Act, having regard to the evidence before the Department, including inconsistent responses provided in a Department interview.
The applicant applied for review of the decision to the Tribunal on 6 July 2018.
On 16 August 2022, the Tribunal received a bundle of evidence in support of the application from the applicant, through his representative, in response to an invitation to provide updated evidence and information from the Tribunal.
The applicant appeared before the Tribunal on 9 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, her sister Ngoc Linh Nguyen and the applicant’s cousin, Thi Kim Khanh Tran. 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 and the representative attended the hearing.
The issue in the present case is whether the applicant is the spouse of the sponsoring partner.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Consideration of claims and evidence
The visa applicant is a 27 year old Vietnamese national. He has parents and an elder sister residing in Vietnam. He is sponsored by Ms Dieu Ly Nguyen, who is a 24 year old Vietnamese born, Australian permanent resident. She has parents and an elder sister residing in Australia. The parties first met in February 2016 and married on 21 May 2017 in Fairfield NSW. Neither party declared any previous relationships.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, 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 spouse of the sponsor who is an Australian citizen.
Among the documents provided in support of the application to the Department were: a copy of the NSW Marriage Certificate evidencing the marriage that took place on 21 May 2017; Statutory Declaration Form 888 dated 24 May 2017 from Hung Cang Tran, uncle of the applicant with whom the applicant and sponsor live; Statutory Declaration Form 888 dated 25 May 2017 from Hang Le Nguyen, friend of two years of the applicant who attended the marriage; applicant’s CBA statement dated 10 April 2018 showing transactions from January – February 2018; Statement from applicant and sponsor regarding their relationship and addressing matters set out in 1.15A.
In their statement the parties say they met by introduction of a common friend “Linh”, initially started texting each other and then met at Darling Harbour on 4 February 2016. They dated after that for a year or so and the applicant proposed marriage to the sponsor on 14 March 2017 and married on 21 May 2017 in a small ceremony. The reception was attended by the applicant’s uncle, cousins, sponsor’s mother, colleagues and friends. They pool their financial resources and share financial responsibilities. The applicant is working and the sponsor is studying at TAFE. They live with the applicant’s uncle’s family and do not pay rent. The applicant cooks most of the time, the sponsor helps with cleaning, washing up. They have future plans to have their own place and children when they are financially stable.
Department file notes indicate that the applicant was interviewed by a local officer on 5 June 2018. Notes of the interview are included in the Department file. The applicant was questioned about the history and inception of the relationship. He repeated the claim made in the written statement that they first met in person on 14 February 2016, Valentines Day. When questioned how this was possible given movement records show he was outside Australia, and only returned on 15 February 2016 he clarified that he was first introduced to her by her sister (Nguyen Ngoc Linh) at his farewell party before he went back to Vietnam, and then asked her out for a date when he returned from Vietnam. In response to questions about whether the sponsor contributes to the costs of their accommodation, which he said were contributions to the electricity and water rates only, he said she does not because she has no job as she is studying. In response to questions about why he did not accompany the sponsor when she went overseas after their marriage, he said she went with her sister for a friend’s wedding and he did not accompany them because of work and also uncertainty of his visa status. He also referred to her having travelled to Thailand before marriage with her sister and mother but he did not accompany them because he was working. The sponsor told the officer the sponsor does no housework because she does not know what to do and how and he does everything. He said she often stays at her mother’s place when he is at work and he picks her up in the evening. In response to the question of why they decided to get married, the applicant said that his parents are old and he needs to settle down quickly and take care of his family. He needs to have a baby and invite his parents and take care of his wife and protect her as she is young. In response to questions about the wedding and who attended, he said the wedding was on 27 May 2017, attended by his uncle, aunt and cousins and her mother. Her father did not attend because he was in Vietnam for a funeral and her sister had chicken pox. He said they plan to have a wedding in Vietnam in the future.
Department file notes indicate an initial favourable assessment of the relationship, which was subsequently overturned by a senior officer on the basis of, among other matters, inconsistencies in statement and interview regarding various matters and the sponsor’s travel without the applicant after the wedding. The application was refused on 21 June 2018.
Evidence before the Tribunal
Movement records obtained by the Tribunal indicate the applicant was outside Australia between 20 January to 15 February 2016 and again between 5 February to 29 February 2020. The movement record indicates the applicant held a Subclass 573 visa which ceased on 30 September 2018 and was later granted a Bridging visa A on 26 May 2017.
The sponsor’s movement records indicate she first arrived in Australia on 16 January 2016 on a Subclass 143 visa; and was outside Australia between 30 January to 3 March 2017; 6 December to 30 December 2017; 21 November to 19 December 2018 and 5 February to 29 February 2020.
On 16 August 2022, the Tribunal received from the applicant’s representative the following information and evidence in support of the application:
·Statutory Declaration dated 3 June 2022 by sponsor.
·Statutory Declaration dated 22 June 2022 by Thi Kim Khanh Tran, applicant’s cousin who resides at the same address as the applicant and sponsor.
·Various documents showing applicant’s addresses in Canley Vale and St Peters.
·Boarding passes for applicant and sponsor relating to two journeys - one for Hanoi to Sydney on 28 February ; another Jetstar Sydney to Melbourne dated 23 October 2019.
·Various bundles of photos, claimed to related to sponsor’s trip to Vietnam in 2017; applicant and sponsor’s trip to Vietnam in 2020; uncle’s birthday in 2018.
·Applicant’s 2021 tax return showing declaration of sponsor as his spouse.
On 5 September 2022, the Tribunal received the following further documents and information in support of the application:
·Submission dated 5 September 2022 from the representative addressing the visa criteria and matters set out in r.1.15A(3).
·Statutory Declaration of Ngoc Linh Nguyen dated 1 September 2022, sister of the sponsor.
·Receipts addressed to applicant and sponsor at St Peters address, including from Liberty Palace, relating to wedding reception, Bing Lee, Good Guys.
·CBA Joint bank account statements at St Peters address December 2017 to April 2018 .
·CBA Joint account statements at Canley Vale address July-December 2021.
·Bundle of photos of couple showing marriage ceremony, wedding reception, out with friends.
Tribunal hearing 9 September 2022
At the hearing the Tribunal took oral evidence from the applicant and sponsor separately, questioning each of them about their current living and work circumstances, inception and development of the relationship, and questions about their financial, household, social and commitment aspects of the relationship. A summary of the evidence received follows.
The parties gave consistent evidence about their current address and history of addresses since marriage. Since July 2022, they live at an address in Villawood, owned jointly by the sponsor’s sister and mother, with her sister and both parents. Previous to this address they lived with the same people at a rented property in Canley Vale, and before that they lived with the applicant’s cousin and her family in St Peters. The applicant explained that the reason they moved to Canley Vale in 2019 was because there was more room at this house, and for emotional support for the sponsor, as she wanted to be closer to her family. In her evidence the sponsor explained they moved to Canley Vale because her sister asked them to, as she was seeking to reconcile the sponsor and her father, and he was returning to live with them at this address. Later in her evidence she told the Tribunal that the applicant encouraged her to reconcile with her father by agreeing to move to live with her family.
The applicant gave evidence he works at a pie factory in Marrickville, Monday to Friday 7.30 - 3.30pm since a few months after COVID lockdown in 2020. Previously he worked for a company providing cleaning services to airlines which ended during the COVID period. The sponsor works casually and on a part time basis with a packing company, and prior to COVID she worked at a TimeZone for around 2 years. Later in her evidence the sponsor mentioned the applicant also worked weekends as a cleaner and is paid cash. The applicant did not mention this work.
The Tribunal asked the applicant and sponsor about their respective families here and in Vietnam. The applicant said he has an uncle and two cousins here, and parents and one sister in Vietnam. His parents are retired and live in a family owned property. They do not rely on him for money, but he sends gifts from time to time. However, since his retirement after the applicant came to Australia, he has had to support himself as his parents’ financial circumstances changed. The sponsor has her parents and a sister in Australia. She also has the wife of her late paternal uncle and their son, who live in Marrickville, and whom they see for traditional holidays mainly. She has another uncle here but she is not in contact with him. In Vietnam she has her maternal grandparents who is close to because they cared for her when she was young.
The applicant confirmed he came to Australia on a student visa and completed a Diploma Certificate qualification after around one year. He was enrolled in a course at Western Sydney University after that but ceased studying after he met the sponsor. He has not studied since then.
The applicant and sponsor gave substantially consistent accounts of the inception and development of the relationship. They met at a party of a colleague of his and the sponsor’s sister, several days after she came to Australia. He liked her and after returning to Australia from a visit home, started to see her, under supervision of others as she was still young. On her 18^th birthday, he decided to take the relationship to the next step and asked her to be his girlfriend. In her evidence the sponsor could not recall which year it was, though she referred to the occasion of her birthday after which the relationship got more serious. They married in May 2017. In response to the Tribunal’s question about why they decided to marry so quickly given her young age, the applicant stated that he doesn’t consider it rushed, it was the first love for both of them and he wanted to look after her. Then he hinted that, for cultural reasons they had to be married for the relationship to progress further. In her evidence the sponsor also said that she did not consider it rushed or fast. She really liked him and did not think she would meet another person like him. She considered marriage was a significant commitment of their relationship which she wanted. The sponsor in her evidence told the Tribunal that she had a boyfriend in high school prior to coming to Austral, though they broke it off when she came here. She said she did not tell the applicant about this because it was in the past. She has had no further contact with him and does not know his circumstances.
Both parties consistently stated that her sister was aware of the relationship and proposal for marriage from the beginning and supported it, but the sponsor waited to tell her mother and she was not initially supportive, but later accepted and embraced it. The marriage registration was attended by the applicant’s uncle and family and sponsor’s sister and mother. The subsequent wedding was attended by all these family members except the sponsor’s sister was unable to attend due to a last minute work commitment.
The Tribunal asked about their financial arrangements. The applicant stated that after their marriage they opened a joint account. He confirmed he also has several accounts in his own name and the sponsor also has an account in her own name. Both their salaries go into the joint account and they both use the account to make purchases and payments. The applicant confirmed that the references to accounts transferring in and out of the joint account are to his personal accounts. The Tribunal questioned him about several transactions involving significant sums in September 2021 and February/March 2022. He referred to lending a friend some money to make a purchase of property, and they would repay him in cash. The sponsor gave a similar explanation. The Tribunal asked where the money for this transaction came from and he said it was from their savings. The applicant confirmed that he and the sponsor do not, and have not to date, paid regular rent or contributions to living expenses. They have however made contributions to the applicant’s cousin and sponsor’s sister, but not regular or in set amounts. They each acknowledged that they are in receipt of substantial support from their family which is a significant motivation for their ongoing family living arrangements. When asked what the current level of savings were he stated around $25,000. The Tribunal requested the applicant provide statements from his and her personal accounts to provide a more complete picture of their finances. They have not made any significant purchases together and have no property assets.
Regarding household arrangements the applicant and sponsor consistently stated that the sponsor’s mother does most of the work at home, and they only contribute on an ad hoc basis. The applicant said he sometimes purchases groceries and they help with cleaning up and vacuuming. In terms of joint activities the applicant referred to them enjoying watching a particular reality television program (I Night 2 days) together in their room or with other family members. However, in her evidence the sponsor said they watch Vietnamese movies together, referring to the last one they watched together, Em va Trinh, and that she does not like watching TV series. The applicant said the last time they went out to dinner alone together was several months ago. Since they moved into this current property, they have been focused on the house.
In response to a question of whether they have had any holidays together the applicant said they went to the Gold Coast, to visit his cousin and to Melbourne. Both were for a few days, and both trips were with various others, including the sponsor’s sister and the applicant’s friend. They have never travelled anywhere alone, just the two of them. They travelled to Vietnam in 2020, accompanied by the sponsor’s sister. They visited his family and her family. There was no wedding celebration during this visit. When asked why not, noting his evidence at the Department interview that he intended to celebrate the wedding there when they visited, the applicant said there was insufficient time and their circumstances had changed, it no longer seemed necessary. The applicant confirmed that the sponsor’s visits to Vietnam in 2017 and 2018 were with her sister and he did not accompany them because of work commitments and financial restraints. She goes each year to see her grandparents. In response to the Tribunal’s concern that it may find this history regarding holidays and absence of any trips alone together anywhere in 5 years is not consistent with a genuine relationship, the applicant said that family means everything to him and they do things as a family. He also referred to financial limitations to explain his inability to travel. He said even in 2020 his parents told him it was not necessary to come, but in the end he decided to go to see them. In her evidence the sponsor stated that her parents in law are sympathetic to their restrained financial circumstances and do not have many expectations of them.
He said they have discussed a trip in future, perhaps at the end of this year. They discussed it just yesterday with his cousin.

The Tribunal asked the applicant whether they socialise individually or jointly with other friends. He said yesterday the sponsor had coffee with her friend Ana in Parramatta. He stayed in the car and made phone calls. He does not go out much with friends since marriage. His travels to work by car daily with his co-worker Long and they socialise on the trip.
Regarding the future the applicant said that they want to settle and buy a property when they can afford to and eventually have a family. They have not discussed any details about these matters because it is all dependent on saving enough money.
The Tribunal asked the applicant if he can describe any topics they argue about or disagree on. He said they have some arguments about matters which are very sensitive and he did not feel comfortable talking about it. When pressed to explain he referred to men in his family having anger issues and he tries hard to control himself. He steps away and tries to be cool and calm. He then referred to small disagreements they have such as where to place something in the room.
In conclusion the applicant said he is an only son and was very spoiled and looked after when growing up. When he came here he had to do everything himself. He is still learning and he knows when they buy their own property and moves out they will be responsible for a lot so he is taking his time. At this stage they have no specific plan to move out.
In her evidence the sponsor said as an example of the support she has given the applicant, she supported and encouraged him when he lost his job during COVID. She said he has supported her a lot since she met him. He encouraged her to learn English. He also supported and helped her to reconcile and improve her relationship with her father. She confirmed that they argue sometimes but he knows when to leave her alone and allows her to cool down. They discuss the pressures of life in Australia. They are trying to save money to buy a property. Only after this will they consider starting a family. At this stage they have no intention of moving out of her sister’s house because they are well supported there.
The sponsor told the Tribunal she was deeply affected by her parents’ previous separation and she does not want this to happen to her. She is afraid of an adverse outcome in this review and the applicant having to leave Australia. She said that although she initially did not want to come to Australia, she has adjusted and now it would be very hard for her to return to Vietnam, but if she had to she would.
Evidence from witnesses - Ms Ngoc Linh Nguyen and Ms Thi Kim Khanh Tran
The Tribunal took oral evidence from the sponsor’s sister and applicant’s cousin. Ms Nguyen told the Tribunal she asked her sister and the applicant to come and live with her after she got her father to come back as a way for the family to reconcile and especially for the sponsor to reconcile with her father. The witness confirmed that household arrangements are that their mother does most of the work, including cooking. They are allowed to focus on their work and are not expected to do much at all at home. Financially she is responsible for the mortgage and does not expect rent contributions from them, although they make financial contributions from time to time. The witness she has observed her sister has been so much happier and brighter since she has been with the applicant. She approved of the applicant because she knew him from work and considered him a good man so she was comfortable for her sister to go out with him.
Ms Tran told the Tribunal that the applicant and sponsor lived with her from 2017 to 2019. Her mother did most of the cooking during this time and she and the sponsor did the cleaning. The applicant sometimes helped. They did not pay regular rent but contributed financially by buying food and groceries. When asked why they moved out, the witness said that the sponsor’s sister had a bigger place. She said her observation of the couple is that it is a genuine relationship on the basis of the way they care for each other. She referred to her observation of them cooking together. He is a quiet and calm man, she is young and can be very emotional. He is always trying to guide her through life. He told her that the sponsor struggled when she first came to Australia. Since she met the applicant she trusts him and has become more confident and mature. The witness gave an example of when she rang during COVID to check on the applicant and observed the sponsor appeared very mature and responsible, reassuring her that she is taking care and supporting him. She could see the impact he has had on her.
Representative’s submissions
The representative made submissions urging the Tribunal to consider the totality of the evidence, noting the substantial consistency and authenticity of the witness’ evidence, and supporting documentary evidence provided. He will forward the additional evidence of bank statements as requested within 7 days.
On 16 September 2022 the Tribunal received a post hearing submission and statements from the review applicant and sponsor’s various bank accounts, together with their 2022 income tax returns showing declaration of each other as spouses. The submissions argue that the parties’ oral evidence at hearing together with the documentary evidence submitted previously and post hearing support the existence of a genuine and continuing spousal relationship. The Tribunal has considered the information and evidence submitted and it is discussed as relevant below.
FINDINGS AND REASONS
‘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). 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. On the evidence of a marriage certificate, and photos and receipts of arrangements for the marriage ceremony and wedding reception and oral evidence of the parties, the Tribunal accepts they were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
In forming an opinion about these requirements, 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 parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
The Tribunal has carefully considered all of the evidence before it, including documentary evidence provided and the oral testimony from the parties and witnesses. As required by the legislation, it has considered all of the circumstances of the relationship including matters referred to in r.1.15A(3) and concludes, on balance, that it is satisfied that the requirements for a spouse relationship are met in this case.
The Tribunal’s assessment of the evidence and reasons for conclusion are elaborated on more fully below.
Financial aspects of the relationship
The parties claim they pool their financial resources together through the joint bank account established since their marriage. Statements from this account has been provided. Following the hearing, at the Tribunal’s request, statements from their active personal accounts were provided.
The Tribunal notes from the evidence of their living arrangements that they do not, and have not since marriage, regularly paid rent or living expenses. They are, and have always lived with family members and have made voluntary ad hoc financial contributions in cash. Their respective salaries are credited to the joint account, however the Tribunal observes significant transactions continue to be made from each of their personal accounts. Ultimately the Tribunal notes the applicant and sponsor have been forthcoming in providing statements for the full period of all their active accounts and considering explanations provided at and following the hearing, nothing further of specific concern arises from the bank statements provided.
They have not accumulated any joint property assets or financial liabilities, which is not that surprising given their age and the duration of the relationship. While they claim to share day to day expenses, on their own evidence they have limited daily expenses.
Despite their evidence about the substantial in kind support they have been getting since the beginning of the relationship the Tribunal observes that the evidence provided does not support the level of accumulated savings they claimed at hearing (being around $25,000) or what might be expected in the circumstances. The statements show they have just under $14,000 between the various accounts. It is noted that the representative refers in the post hearing submission to a further $10,000 saved in cash, although no reference to this was made by the parties in their oral evidence. However, other than making the observation, there is nothing further before the Tribunal to base any adverse inference about this and the Tribunal makes none.
Considering the evidence in totality, the Tribunal accepts that the substantial in kind support they receive towards living expenses from family members is capable of being considered as sharing of their day to day expenses. The evidence provided supports that they have maintained, and actively use a joint bank account over the past 5 years. On balance, the Tribunal is satisfied the evidence of financial aspects of the relationship, in the particular context of their relationship, supports the existence of a genuine and ongoing relationship.
Nature of the household
The evidence is that the applicant and sponsor are, and have been for the past two years, living with the sponsor’s sister and parents. Prior to that, from the time of their marriage they lived with the applicant’s cousin and her family. The Tribunal accepts on the oral evidence of the parties and witnesses and documentary evidence of correspondence addressed to them at these addresses, that they live at these addresses as claimed. Throughout this period of living with each other’s families, on their own evidence, they have not been responsible for, nor undertaking very much of the daily activities of cooking, cleaning or housework. There are no children of the relationship to consider. The Tribunal acknowledges that joint family living arrangements are common in many cultures, and of itself does not detract from the existence of a genuine relationship, although it also means there is less documentary evidence such as leases and utility bills, to support the existence of a relationship. The Tribunal notes and has considered the substantial quantity of photos of the parties together and gathered with family members.
The Tribunal accepts that the applicant and sponsor are, and have been, living with family members of each of them since marriage and participate in each other’s extended family lives. In this context of a joint family arrangement, this is consistent with a genuine and ongoing spousal relationship.
Social aspects of the relationship
The Tribunal accepts that the applicant and sponsor represent themselves to, and are integrated into each other’s families, given that they are living with and have been living with members of each other’s families since marriage. The witness evidence and photo evidence supports this.
The Tribunal notes that in the 5 years of their marriage, the applicant and sponsor travelled to Vietnam only once together and were accompanied on that trip by the sponsor’s sister. Despite it being the first and only visit together to the applicant’s family, no celebration of their marriage was held. In addition to this trip, they travelled in Australia to the Gold Coast once and to Melbourne once, but not alone. The sponsor has travelled to Vietnam three other times without the applicant, accompanied by her sister. The Tribunal finds of some concern that the parties, given their age and stage in life, have not once travelled on their own for a holiday. Regarding their social activities at home, they gave inconsistent evidence about the kinds of programs they watch in the evenings, with the applicant referring to a reality TV series jointly watched, and the sponsor saying she dislikes and does not watch series and prefers movies, raising concerns about whether they do in fact undertake such joint activity at home at all. The applicant indicated they do not socialise with friends. Again, given their age and stage in life, the Tribunal finds this of concern in relation to its assessment of the relationship.
Evidence has been provided that the applicant has declared the sponsor as his spouse in recent tax returns and for the purposes of Centrelink applications, and he claims he nominated her as a beneficiary in a past superannuation account.
On balance and considering the evidence in totality and in the context of the duration of the relationship, the Tribunal is satisfied there is evidence of social aspects of the relationship consistent with a genuine relationship, notwithstanding the concerns mentioned above.
Nature of the commitment to each other
A period of over 5 years has now passed since the applicant and sponsor married in May 2017. The Tribunal accepts on the evidence that they have lived together in that time, with each other’s respective family members. They gave evidence of the companionship and emotional support they have provided to one another and each told the Tribunal that they see the relationship as long term.
While the Tribunal is not without concerns about aspects of the evidence relating to their relationship, taking the evidence and circumstances before it in totality, and placing significant weight on the duration of the relationship to date, the integration and acceptance demonstrated by close family members and evidence of the ongoing commitment and support they provide each other given at hearing the Tribunal accepts the relationship is genuine and long term. The Tribunal also takes into consideration, in reaching this conclusion, the information provided about the sponsor’s particular history and background, and vulnerability at the time she met and married the applicant, which it considers may be relevant to understanding the particular circumstances of their relationship and lives to date.
Having regard to the findings and evidence above, the Tribunal accepts the applicant and sponsor have a mutual commitment to shared life to the exclusion of others; their relationship is genuine and continuing; and they live together. On the basis of these findings, the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.
Therefore the applicant meets cl. 820.211(2)(a) and cl 820.221(1)(a). It is satisfied that the additional sub criteria are met, in that the applicant is sponsored by an Australian permanent resident and was the holder of a substantive visa at time of application. It is clear on the evidence before the Tribunal that the sponsor continues to support the application therefore the Tribunal is satisfied that cl.820.221(4) is met.
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 direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations.
Meena Sripathy
Member

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

[2022] AATA 3275

29 September 2022

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