Tshomo (Migration)

[2022] AATA 3315

Tshomo (Migration) [2022] AATA 3315 (2 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tashi Tshomo

REPRESENTATIVE:  Ms Alice Graziotti

CASE NUMBER:  1934154

HOME AFFAIRS REFERENCE(S):          BCC2018/2056857

MEMBER:Christine Kannis

DATE:2 September 2022

PLACE OF DECISION:  Perth

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(2) of Schedule 2 to the Regulations;

·cl 820.221(1)(a) of Schedule 2 to the Regulations; and

·reg 2.03A.

Statement made on 02 September 2022 at 6:43am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – shared financial arrangements – property purchase as joint tenants – mutually agreed household arrangements – joint travel – social recognition of the relationship – emotional support – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.15, 2.03

CASES

He v MIBP [2017] FCAFC 206

statement of decision and reasons

application for review

1. 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).

2. The applicant applied for the visa on 11 May 2018 on the basis of her relationship with her sponsor, Mr Robert Ruse. 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 the applicant.

3. The visa was refused because the delegate was not satisfied that the applicant’s relationship with the sponsor met the definition of de facto partner under the Act and therefore she did not satisfy cl 820.211(2)(a).

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant was represented in relation to the review.

6. The Tribunal noted that an s 376 certificate had been issued in this case by the Department. The certificate applied to folios 1 to 10, 12 and 13 of the Department’s file BCC2018/2056857. The Tribunal found the certificate to be valid because disclosure of the document and/or information covered by the certificate would reveal confidential Departmental investigative methods used to detect breaches of the law (folios 8 to 10, 12 and 13) or the information was provided “in confidence” where the provider of the information had not consented to the disclosure of the information to the applicant (folios 1 to 7).  The information was an anonymous dob-in made in 2018 consisting primarily of an allegation that the applicant was working illegally. Given the nature of the information, the passage of time since the allegation was made and the Tribunal’s inability to test information received from an anonymous source, the Tribunal gives no weight to the information covered by the s 376 certificate.   

7. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Consideration of claims and evidence

8. 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.

9. Prior to the scheduled hearing the applicant provided documentation which included but was not limited to a written submission, bank statements, statutory declarations and photographs. The Tribunal had significantly more evidence before it than was available to the delegate.

   Background

10. The applicant is a national of Bhutan. She is 42 years old. The sponsor is an Australian citizen. He is 81 years old. 

11. The parties first met on 2 June 2014 when the applicant and her previous partner rented a property owned by the sponsor.

12. On 5 May 2016 the parties met at a local shopping centre. The applicant had been separated from her previous partner since May 2015. The parties began to meet regularly and a romantic relationship developed.

13. The applicant and the sponsor claim they commenced cohabitation on 3 June 2016 and were in a de facto relationship from that time. They subsequently married on 2 April 2020.

14. The issues are whether the applicant was the de facto partner of the sponsor within the meaning of s 5CB of the Act at the time of application and, whether at the date of decision, the relationship meets the definition of “spouse” in s 5F of the Act.

    Whether the parties are in a spousal or de facto relationship

15. Section 5CB of the Act 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 as to whether 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.

16. Section 5F of the Act 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 husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F (2) (a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship which includes the matters as set out in reg 1.15A(3), which are the same matters set out in reg 1.09A(3). A copy of reg 1.15A(3) is also attached 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.

17. The evidence provided included a copy of a Marriage Certificate issued by the Registrar of Births, Deaths and Marriages (WA) showing the applicant and the sponsor married on 2 April 2020. On the basis of the written evidence before it the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s 5F (2)(a).

18. The Tribunal considered the evidence against the reg 1.09A(3) and reg 1.15A(3) factors.

    Financial aspects

19. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

20. In the Application for migration to Australia by a partner the applicant said, in relation to the financial aspects of the relationship:

    We have shared our finances and used our shared earnings to

    pay our living expenses. We have opened a joint bank account.

    See attached confirmation letter from the bank.

21. In an undated Further Relationship Statement signed by the parties they said:

    We both have our own financial independence. Tashi earns her own living as an aged care and disability worker. I have income from rental properties.
    As we both live in my house the major expenses e.g. rates, water crop and strata bills are my responsibility. Tashi pays for the synergy power bill and internet. We both share the food and wine cost, although we have a joint credit card that was acquired

    for household shopping, we often use our own personal credit card for food etc.

    Tashi pays all expenses for our jointly owned Hyundai she is the main user.

22. In a statutory declaration dated 29 July 2022 the applicant said she and the sponsor have a joint bank account, however, their daily expenses are shared in an unstructured manner. She said they share the costs of groceries and household items. She pays the utilities and the sponsor pays rates, levies and travel expenses. Her source of income is her employment as a carer and the sponsor owns and manages several rental properties.

23. A Commonwealth Bank letter dated 10 April 2018 which indicates a joint bank account was opened on 30 September 2016 was provided. A Commonwealth Bank letter dated 4 August 2022 which indicates a joint bank account was opened on 8 May 2018 was also provided. Statements for this joint bank account during the period May 2018 to June 2022 were provided. The debit transactions include payment for groceries and water rates. The credit transactions include transfers from other accounts including an account in the applicant’s sole name and the sponsor’s sole name. Bank statements for the parties’ individual accounts in 2017 and 2018 were also provided.  

24. ANZ bank statements for an account in the applicant’s name were provided. The statements were for periods from December 2016 to December 2021. The credit transactions included salary payments and “Transfer from Robert”. The debit transactions included payments for day-to-day household expenses including food, household items, petrol and chemist expenses. The statements also showed debit transactions identified as “Transfer to Robert”.

25. Synergy bills in the applicant’s name, a Water Corporation bill in the parties’ joint names and a Town of Mosman Park Rates notice in sponsor’s name were provided.

26. Department of Transport statements dated 3 May 2018 and 10 October 2019 show the sponsor is the primary owner and the applicant is a joint owner of a Hyundai motor vehicle.

27. A copy of the sponsor’s will dated 4 February 2020 was provided. The will states:

    As at the date of this my Will I am intending to marry my partner TASHI TSHOMO (“Tashi”). I am not providing for Tashi in this my Will because I will be purchasing a property wit Tashi as joint tenants and I will have paid 50% of the purchase price in cash which will be a significant sum. Tashi will have taken a mortgage for the other half but upon my death she will automatically take the entire property and it s my view that it is sufficient to look after her and having regard to the length of our relationship and the fact that I have 3 children I DIRECT that Tashi not receive anything further from my Estate. I believe that having regard to the amount of financial and non-financial support I have given Tashi and will continue to give Tashi is sufficient.

28. A letter dated 16 December 2021 from Hesta shows the applicant has nominated the sponsor as her 100% beneficiary.

29. A Contract of Sale for Strata Titled Lot-Mixed Residential and Commercial signed by the parties on 3 July 2020 indicating they were purchasing a property as joint tenants was provided. In the written submission it was stated that they sold this property in April 2022.

30. A letter dated 26 October 2021 from Parcel Property addressed to the parties confirms that they purchased an apartment at NOMA Residences. The written submission stated that the sponsor will pay 50% of the purchase price in cash and the applicant will hold a mortgage for the remaining 50%.  This is consistent with the information provided in the sponsor’s will.

31. In a written statement dated 3 August 2022 the sponsor provided consistent evidence regarding the sharing of day-to-day living expenses and the purchase of the NOMA apartment.

32. The parties have acquired joint assets and based on the written evidence, the Tribunal is satisfied that they have pooled their financial resources and shared day-to-day financial responsibilities during the relationship. The Tribunal decided that this was an indicator of a genuine and continuing de facto relationship at the date of application and of a spousal relationship at the time of decision.

    Nature of the household

33. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

34. In the Application for migration to Australia by a partner, the applicant stated in relation to the nature of the household:

    We have lived together since 03/06/2016 and share our household responsibilities equally. Robert loves cooking and Tashi likes to clean the house. We both like gardening and grows lots of vegetables and share our food shopping. See attached evidence of living together including proof of residence and relationship statement.

35. In a Relationship Statement signed by the parties they said:

    We believed we have a wonderful relationship. Robert loves cooking and they share food shopping. Tashi likes to clean house and Robert doesn’t like housework, so that works well. They both like gardening and grows lots of vegetables, herbs and chillies for Robert’s cooking.

36. In an undated Further Relationship Statement signed by the parties they said:

    Because I do not have work and study commitments that Tashi does, I do most of the household chores. I love cooking special lunches and dinners for Tashi as 1 know she looks forward to my culinary surprises. The kitchen is my domain. I won’t even let

    her do the dishes. Also I mostly handle the laundry and garden. Tashi always does

    the vacuuming and the bathroom and buys the flowers for the house. We have never really discussed our domestic roles, it just happened, and we are both very happy about our household arrangements and have never had an argument or cross word, so we both feel very lucky we get on so well together.

37. The written submission said the parties resided together at the sponsor’s home at Glyde Street Mosman Park WA 6012 (3 Glyde Street) from 3 June 2016 to December 2019. In December 2019 they moved to Glanville Street Mosman Park WA 6012 (Glanville Street) where they lived until April 2020.  On 22 December 2020 they moved to another address at Glyde Street Mosman Park WA 6012 (101 Glyde Street). In May 2022 the parties moved to another property owned by the sponsor at Murray Avenue Mosman Park WA 6012 (Murray Avenue), and they intend to remain living there until completion of the NOMA apartment in December 2022.

38. In the applicant’s statutory declaration dated 29 July 2022 she said in 2019 they sold 3 Glyde Street and moved to 101 Glyde Street which they bought in 2020 and sold in 2021. The applicant stated they are currently living at Murray Avenue, a property owned by the sponsor, until the NOMA apartment is completed.

39. Correspondence addressed to the parties individually at 3 Glyde Street in the period from 2016 to 2021 was provided. Correspondence addressed to the parties jointly dated in 2019 was provided.

40. Correspondence addressed to the parties jointly at Glanville Street dated 2 July 2020 was provided.

41. Correspondence addressed to the parties individually at 101 Glyde Street in 2021 and 2022 was provided.

42. Correspondence addressed to the applicant at Murray Avenue in 2022 was provided.

43. In the applicant’s statutory declaration dated 29 July 2022 she said she and the sponsor share the housework. In a written statement dated 3 August 2022 the sponsor provided consistent evidence regarding the sharing of household responsibilities.

44. The Tribunal accepts that the parties have lived at the same residential addresses since the time of application and continued to live together. The Tribunal finds that the evidence presented relating to the parties’ residential addresses and the nature of the household was an indicator of a genuine and continuing de facto relationship at the date of application and of a spousal relationship at the time of decision.

    Social aspects of the relationship

45. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

46. In the Application for migration to Australia by a partner the applicant said in relation to the social aspects of the relationship:

    We have declared our relationship to our friends and family and

    are accepted socially as a couple. We traveled together last year in Bali, and plan to travel again to Greece this July 2018. See attached joint travel evidence and Form 888s.

47. In a Relationship Statement signed by the parties they said:

    They both enjoyed going to friend’s places for lunch or dinner and occasionally see a movie. They also enjoyed camping.

    We had a wonderful trip to Bali in July last year staying at Robert’s villa that he

    built in Seminyak (See attached both of our passport stamped Bali 1 of July 2017). We are currently planning a trip to the Greek island this July 2018.

    One day Robert hope to visit Bhutan with Tashi and meet her parents, who he

    some times chat with her mother on Wechat apps although her English is limited

    they are able to communicate. They know Robert loves and cares for their

    daughter who they naturally worried about being so far being them. In our

    happy little household we both share the food shopping. Tashi pays for the

    power and internet and Robert is responsible for the rest of household expenses.

    We jointly owned a care and bank account. 1 fell very lucky to be with some one

    who makes me really happier than I can remember.

48. In an undated Further Relationship Statement signed by the parties they said:

    We really enjoy travelling together and have recently returned from a 3 weeks trip around the Kimberly followed by 8 days in Bali.
    We are now planning a trip in April - May next year that will include Spain, Portugal and Morocco.
    Socially we often have dinner or lunch with friends. Last weekend we stayed with friends often spend time together in my cottage at 8 Ash Avenue on their farm at Toodyay. We Harvey. We are looking forward to the Melbourne Cup, where
    we have been invited to join a table of 10 friends at the Royal Freshwater Bay Yacht Club

49. In a statutory declaration dated 29 July 2022 the applicant said that due to COVID-19, the only guests permitted at their wedding were their best man (Mr William Loader) and his partner and the sponsor’s son and daughter. She said an additional 50 guest invitations had to be cancelled, however, they recently celebrated their second wedding anniversary at a restaurant with 28 friends.

50. In a written statement dated 3 August 2022 the sponsor said he and the applicant are widely accepted by their social circle as a married and loving couple. He referred to the numerous statutory declarations made by them and the willingness of many of them to attend the scheduled hearing to provide support.

51. A statutory declaration dated 5 April 2018 made by Mr William Loader, was provided in support of the genuineness of the parties’ relationship. He said he is in weekly contact with the parties. His reasons for his belief that the parties’ relationship is genuine and continuing included that they are well suited because they have common interests and are supportive of each other. Mr Loader provided a subsequent statutory declaration dated 24 January 2022 in support of the genuineness of the parties’ relationship. Mr Loader provided a signed written statement dated 1 August 2022 in which he confirmed the information provided previously in his statutory declarations and stated that he was willing to attend the scheduled hearing on 15 August 2022 to confirm this information under oath. The Tribunal gives this evidence significant weight.

1. A statutory declaration dated 28 April 2018 made by Ms Lydia Marinovic, was provided in support of the genuineness of the parties’ relationship. She said she sees them at least weekly in a social context. Her reasons for her belief that the parties’ relationship is genuine and continuing included that they have been living happily together for two years and they have a very happy and loving relationship. The Tribunal gives this evidence weight.

2. A statutory declaration dated 30 April 2018 made by the sponsor’s son, Mr Haydn Ruse, was provided in support of the genuineness of the parties’ relationship. He said he often sees them on weekends for lunch or dinner. His reasons for his belief that the parties’ relationship is genuine and continuing included that the applicant attends family events and is accepted as his father’s partner. Mr Haydn Ruse provided a subsequent statutory declaration dated 23 January 2022 in support of the genuineness of the parties’ relationship. The Tribunal gives this evidence significant weight.

3. A statutory declaration dated 30 April 2018 made by the sponsor’s daughter, Ms Georgia Ruse, was provided in support of the genuineness of the parties’ relationship. She said she has regular contact with the parties when she visits her father at his home. Her reasons for her belief that the parties’ relationship is genuine and continuing included that they have known each other for a long time, they live together and they make plans for their future together. Ms Georgia Ruse provided a subsequent statutory declaration dated 1 February 2022 in support of the genuineness of the parties’ relationship. The Tribunal gives this evidence significant weight.

4. A statutory declaration dated 12 October 2019 made by Mr Ian Fisher was provided in support of the genuineness of the parties’ relationship. He said he frequently spends time with the parties having dinner, drinks and picnics. He said the parties are engaged. His reasons for his belief that the parties’ relationship is genuine and continuing included their verbal and tactile engagement with each other. Mr Fisher provided a subsequent statutory declaration dated 24 January 2022 in support of the genuineness of the parties’ relationship. The Tribunal gives this evidence weight.

5. A statutory declaration dated 12 October 2019 made by the sponsor’ son, Mr Kobe St John Ruse, was provided in support of the genuineness of the parties’ relationship. He said he is in regular contact with the parties. His reasons for his belief that the parties’ relationship is genuine and continuing included that they had been living together for four years, have a wonderful relationship and plan to marry soon. The Tribunal gives this evidence weight.

6. Numerous additional statutory declarations dated in January and February 2022 made by family members and friends attesting to the genuineness of the parties’ relationship were provided. In the written submission the representative advised that many of these declarants would be willing to provide oral evidence to the Tribunal if necessary. The declarants indicated that they had known the applicant for at least four years.

7. Evidence of joint overseas travel in 2017, 2018, 2019 and 2022 was provided. Evidence of a booking for joint travel to Broome in August 2022 was provided. In a written statement dated 3 August 2022 the sponsor said he and the applicant have travelled together to Bali, Europe and Broome.

8. Photographs showing the parties with family and friends at social occasions in 2017 and 2018 were provided. A photograph of the parties indicated to have been taken in Bali in 2017 was provided. Photographs of the parties indicated to have been taken in Europe and on a cruise ship in 2018 were provided. A photograph of the parties indicated to have been taken in Broome in 2019 was provided.

9. A letter dated 16 December 2021 from Hesta shows the applicant has described her relationship with the sponsor as “Husband”.

10. Based on the evidence, the Tribunal was satisfied that at the time of application the parties represented themselves to other people, including family and friends, as being in a de facto relationship with each other. Further, the Tribunal decided that at the time of decision the parties represent themselves to family and friends as being in a spousal relationship.

    The nature of the parties’ commitment

11. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

12. In the Application for migration to Australia by a partner the applicant said in relation to the nature of commitment:

    We have been in a committed de facto relationship since June 2016. We had booked to get married on the 1 September 2017 at the Perth marriage registry office. However we decided to postpone the marriage until Tashi had applied for a partner visa and Tashi has finished her studies. See the Marriage registry confirmation and invoice attached. This is our commitment and future plan and in the meantime we are happy to be with each other in whatever circumstances we face together with the hope that the future is bright for us.

13. In a Relationship Statement signed by the parties they said:

    We had booked to get married on the 1^st September 2017 at the Perth marriage

    registry office. How ever we decided to postpone the marriage until Tashi had

    applied for a partner visa and Tashi has finish her studies. (Marriage registry

    confirmation and invoice attached). It’s our future plan and in the meantime we

    are happy to be with each other in whatever circumstances we face together with the hope that the future is bright for us.

14. In an undated Further Relationship Statement signed by the parties they said:

    We have been in a loving monogamous relationship for nearly four years. When Tashi first moved into my house she had her own bedroom that has now become her dressing room as for the past 3 years. We have slept together in my bedroom. I am totally devoted to Tashi, and feel so lucky to have finally found my soul mate. I have been married twice previously, but have never been as happy as I am now with Tashi, and feel very confident and secure in what I believe will be an ever lasting relationship.

15. In the applicant’s statutory declaration dated 29 July 2022 she said:

    I have never been happier in my life since being in a relationship with my husband Robert. Despite the difference in our culture we are indeed true soulmates. In fact our love and care for each other just seems to keep growing. I feel I would be completely lost without him and I know her feels the same way.

    …..

    Robert provides me with immense emotional support, especially being away from my family and culture and during this sad time of my father’s terminal illness.

    ….

    Robert and I are very much looking forward to moving into our new apartment in December. The most important travel plans are visiting my Father and Robert meeting my family in Bhutan as at this stage he has only met my younger sister and her husband and daughter who we see regularly

16. In a written statement dated 3 August 2022 the sponsor said he and the applicant are committed to a long and happy future together.

17. The parties have purchased an apartment together and their future plans include moving into the apartment once construction is completed.

18. The evidence before the Tribunal included messaging between the parties in the period from 2018 to 2021. The messages indicate that the parties have a loving and intimate relationship.

19. The Tribunal was satisfied that the applicant and the sponsor had been in a relationship since June 2016.  Regarding whether the requirements of s 5CB(2) were met at the time of application, the Tribunal decided:

    ·the parties were not married;

    ·the parties lived together;

    ·they were not related by family;

    ·they had a mutual commitment to a shared life together to the exclusion of others; and

    ·the relationship was genuine and continuing.

    Are the additional criteria for a de facto relationship met?

20. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances, none of which apply in the present case.

21. The Tribunal accepts on the evidence before it that the applicant and the sponsor were over the age of 18 at the time of application. Therefore, the applicant satisfies reg 2.03A(2).

22. The Tribunal then considered reg 2.03A(3). The application was made on 11 May 2018. The parties commenced living together in June 2016.  The Tribunal considered the reg 109A(3) factors and decided that at least 12 months prior to the application the parties met the requirements of s 5CB(2) including that they were not living separately and apart on a permanent basis, that their relationship was genuine and continuing and that they had a mutual commitment to a shared life together to the exclusion of all others.

23. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

    Conclusion

24. Having considered carefully all the evidence of the relationship cumulatively and collectively, the Tribunal finds that at the time of application and at the time of decision the parties were and remain in a committed long-term relationship. In making this determination the Tribunal has taken into account that the parties have been in a relationship for six years, the opinions of family members and friends about the nature of the relationship, that they provide each other with emotional and financial support and that they have future long-term plans together.

25. Regarding whether the requirements of s 5F are met at the time of decision, the Tribunal decided:

    ·the parties are married to each other under a marriage that is valid for the purposes of the Act;

    ·they are living together;

    ·they have a mutual commitment to a shared life as husband and wife to the exclusion of others; and

    ·that the relationship is genuine and continuing.

26. Given the findings above, the Tribunal is satisfied that at the time the visa application was made the parties were in a de facto relationship and the time of this decision they are in a spousal relationship. Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).

27. 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

28. 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 (Temporary)) 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.

    Christine Kannis
    Member

    
    

    ATTACHMENT  -  Extract from the 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).