Vo (Migration)

[2020] AATA 6150

Vo (Migration) [2020] AATA 6150 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hien Vo

CASE NUMBER:  1715541

DIBP REFERENCE(S):  CLF2014/104306

MEMBER:Grant Chapman

DATE:10 March 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 10 March 2020 at 11:48am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – no joint ownership of assets – limited range of social activities – withdrawal of sponsorship – not a genuine spousal relationship – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cl 801.221

CASES

He v MIBP [2017] FCAFC 20

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 Immigration on 3 July 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Thi Hien Vo, applied for the visa on 24 July 2014 on the basis of her relationship with her sponsor, Colin Hewton. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3.     The delegate refused to grant the visa on the basis that the applicant did not satisfy 801.221(6)(b) because they were not satisfied that the applicant was the spouse of the sponsor, prior to the relationship ceasing, as defined under section 5F of the Act.

4.     The applicant appeared before the Tribunal on 14 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Stan Butler, who was described as the applicant's current spouse. The Tribunal Hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5.     The applicant was represented in relation to the review by her registered migration agent, Mr Kevin Kardirgama, from Ward Keller Lawyers, Darwin. The representative attended the Tribunal Hearing via telephone hook-up, with the knowledge and approval of the applicant.

6.     Both prior to and after the Tribunal Hearing, at the request of the Tribunal, the applicant provided some additional documents and a written submission which had not been provided to the Department of Immigration and Border Protection.

7.     For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

8.     The issue in the present case is whether the applicant and her sponsor were in a genuine and continuing spousal relationship, prior to the cessation of the claimed relationship, as defined by section 5F of the Act.

9.     In determining the applicant’s claims, the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of sensitivity to the circumstances and difficulties applicants may face before the Tribunal, related to their particular situation.

10.      The applicant relies on written submissions and supporting evidence provided to the Tribunal and previously to the Department, together with oral evidence which the applicant and witness gave at the Tribunal Hearings.

Whether the parties are in a spouse or de facto relationship

11.      Clause 801.221(6)(b) requires that the applicant would meet the requirements of subclause cl.801.221 (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased and the applicant or relevant person has suffered family violence committed by the sponsoring partner.

12.      Consequently, the issue in this review is whether a spousal relationship existed between the applicant and ’sponsoring partner who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to have been the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application.

13.      ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a) - (d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

Are the parties validly married?

14.      If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided to the Tribunal a Commonwealth of Australia Official Certificate of Marriage confirming that her marriage to her former sponsor was solemnised on 24 May 2014 at Nightcliff Rocks, Casuarina Drive, Northern Territory, according to Civil Rites, by celebrant Julie Mary O’Brien, in the presence of two witnesses. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

Are the other requirements for a spouse relationship met?

15.      In examining the documentary evidence tendered and the oral evidence given by the applicant and witness at the Tribunal Hearing, the Tribunal has considered all aspects of the relationship, as described in paragraph 13 above.

16.      The applicant lodged a valid application for a Partner (Temporary)(Class UK)(Subclass 820) visa and Partner (Residence)(Class BS) (Subclass 801) visa on 24 July 2014. The Subclass 820 Temporary visa was granted on 14 September 2015 but the Subclass 801 Residence visa was refused on 3 July 2017.

17.      As stated in paragraph 6 above, the Tribunal has benefited in reaching its decision from additional relevant documentation provided, at the Tribunal’s request, by the applicant and her agent, which was not available to the departmental delegate. As will be elucidated in more detail below, the Tribunal has concerns about inconsistencies between the oral and written evidence provided to the Tribunal and some of these documents.

Financial aspects of the relationship

18.      Joint ownership of assets: There is no evidence before the Tribunal nor did the applicant claim that there were any assets owned jointly by the applicant and former sponsor. The Tribunal finds that there are no assets owned jointly by the applicant and former sponsor.

19.      Joint liabilities: There is no evidence before the Tribunal nor did the applicant claim that there were any joint liabilities entered into by the applicant and former sponsor, such as loans or utilities’ contracts. The Tribunal finds that there are no joint liabilities shared by the applicant and former sponsor.

20.      Extent of pooling of financial resources:

(a) At the Tribunal Hearing, when the applicant was asked her view as to when a genuine and continuing spousal relationship with the former sponsor began, she said that it was from the date of their marriage. This was 24 May 2014.

(b)  Prior to the Hearing, the Tribunal had been provided with two very limited sets of bank statements, which were those provided to the Department. The first of these was for a Bendigo Bank Social Investment Deposit Account in the joint names of the applicant and former sponsor, which included only a copy of Statement 1 from 27 May 2014 to 1 October 2014, an Internet downloaded Transaction History from 1 January 2016 to 1 July 2016 and a copy of Statement 5 from 2 April 2016 to 10 August 2016, overlapping part of the above Transaction History. These records show an initial cash deposit of $1172 from an unidentified source on 27 May 2014, an unidentified cash withdrawal of $1000 on August 2014, a cash deposit of $500 from an unidentified source on 25 August 2014, likewise of $100 on 24 September 2014, likewise of $100 on 1 June 2016 and likewise of $100 on 27 June 2016. The only other transactions evident on these Statements are modest monthly credits of less than $3 interest on the credit balance in the account and debits of bank fees. The highest credit balance on any of the Statements is $1833 on 10 August 2016. The Tribunal finds that the information provided by these Statements does not provide clear evidence of pooling of financial resources by the applicant and former sponsor or any sharing of living expenses.

(c) The second set of bank statements was an Internet downloaded Transaction History from 31 August 2016 to 8 February 2017 for a Commonwealth Bank Smart Access Netbank Account. A Commonwealth Bank letter to the applicant dated 10 February 2017 confirms that she has an account in her name which has the same BSB and account number as that identified in these downloads. The Tribunal notes that the Statements provided to it for this account commence on a date several weeks after the applicant acknowledges the cessation of the claimed relationship with the former sponsor. The Tribunal finds that these Statements do not pertain to the time period of the claimed relationship to which this Decision relates and do not provide clear evidence of pooling of financial resources by the applicant and former sponsor or any sharing of living expenses.

(d) At the Hearing, the Tribunal referred to this paucity of information and asked the applicant to provide a complete set of all bank statements for all bank accounts in joint or individual names from the claimed commencement of the relationship. The applicant’s agent undertook to provide these after the Christmas break and referred also to an ME Bank bank account in the name of the applicant.

(e) In a letter to the Tribunal dated 22 January 2019, inter-alia, the agent referred to bank statements of the applicant dated from 15 August 2015 through to July 2016 attached to his letter, which “evidences that Ms Vo made purchases for everyday needs such as groceries to provide for herself and her husband jointly. This corroborates her evidence at the Hearing, to the effect that she purchased the groceries and did the cooking in the joint household.” The bank statements to which the agent refers are for an ME Bank Everyday Transaction Account and an ME Bank Online Savings Account in the name of the applicant. Contrary to the request by the Tribunal for a complete set of bank statements, those provided for the Transaction Account are incomplete, being Statement 1 from its commencement date, 18 August 2015 to 30 September 2015, Statements 3 and 4, from 1 January 2016 to 30 June 2016 and un-numbered Statements from 1 October 2016 to 31 December 2016 and from 1 October 2017 to 31 December 2017. Similarly, the Statements for the Savings Account are incomplete, being Statement 1 from its commencement date, 12 August 2015, through Statement 2, to an unnumbered Statement, concluding 31 December 2016, then an unnumbered Statement from 1 July to 31 December 2017.

(f) The Tribunal notes that a significant period of the time covered by these two sets of Statements is after the date at which the applicant acknowledges the cessation of the claimed relationship with the former sponsor and so, those Statements do not provide clear evidence of pooling of financial resources or sharing of living expenses.

(g) The Online Savings Account Statement, August to December 2015, shows periodic deposits identified as PCR Wages, which the Tribunal accepts may be the wages received by the applicant, together with periodic modest interest credited on the account balance. This statement shows also, four transfers over the period, totalling $7600 to the applicant’s ME Bank Transaction Account, leaving a credit balance of $27.84 at the end of December 2015. The subsequent Statements show no further transactions on this account, other than very modest periodic interest accruals on that balance.

(h) The Transaction Account Statement, August to September 2015, show three deposits, totalling $4600, transferred from the Online Savings Account, plus some modest credits of interest on the account balance. It shows several significant ATM cash withdrawals in September 2015 which shed no light on their purpose and several payments which may be attributable to living expenses, albeit unidentified for whom. The statements from 1 January to 30 June 2016 show regular weekly deposits identifiable as the applicant’s wages and only ATM cash withdrawals to 15 May 2016. From 15 May to 30 June 2016, the statement shows several payments which may be attributable to living expenses, albeit unidentified for whom. The subsequent Statements relate to periods after which the applicant acknowledges the cessation of the claimed relationship.

(i) The Tribunal finds that the ME Bank Statements do not provide clear evidence of pooling of financial resources between the applicant and former sponsor.

(j) The Tribunal notes that the applicant/agent failed to provide any additional Statements for the joint account analysed in paragraph 20(b) above, despite being requested by the Tribunal to do so.

(k) In her Statutory Declaration of 15 August 2017, the applicant says that the former sponsor was not happy about her sending $300 per month to her mother in Vietnam for medical treatment. She says also that she never received any money from the former sponsor. The Tribunal finds that this is evidence of an absence of willingness on the part of the former sponsor to pool financial resources.

21.      Any legal obligations owed to the other party: The Tribunal had available to it, as did the Department, a document relating to the former sponsor’s Australian Super account, dated 17 July 2014, confirming a Binding Death Benefit Nomination of the applicant as to 50% death benefit in favour of the applicant. The Tribunal finds that the sponsor had that legal obligation to the applicant. There is no evidence before the Tribunal that the applicant had made a similar provision with regard to the former sponsor. There is no other evidence before the Tribunal of any other legal obligations between the parties.

22.      Any sharing of day-to-day household expenses: In her Statutory Declaration, dated 15 August 2017, more than twelve months after the cessation of the claimed relationship, the applicant claims that when she began to receive income from her own job, she paid for all of the household groceries, eating out, entertainment, telephone and garden expenses, as well as her personal expenses. However, as described in paragraph 20 above, only one set of the bank documents analysed shows any expenditure directly potentially identifiable as being for day-to-day living expenses and these are relatively modest sums during a short period of time. The Tribunal notes that in his Statutory Declaration, dated 20 July 2016, the former sponsor and in her Information for Permanent Stage Processing form, dated 25 July 2016, the applicant, make similar statements to the effect that they share in household expenses. The Tribunal notes that the date of these documents is adjacent to the time when the applicant acknowledged to the sponsor that she had been in a relationship with another man, which is discussed later in this Decision. Given this and the very limited evidence regarding any sharing of day-to-day household expenses, the Tribunal finds only some limited sharing of expenses.

23.      Financial aspects conclusion: Having undertaken a detailed examination of the bank statements and other financial documents provided by the applicant, the Tribunal concludes, with regard to the applicant and sponsor, that there is no joint ownership of assets or joint responsibility for any liabilities or clear evidence of any pooling of financial resources. In weighing these circumstances against the 50 per cent binding death benefit nomination by the sponsor in favour of the applicant and evidence of only some sharing of day-to-day household expenses, the Tribunal finds there is not clear evidence regarding the nature of the financial aspects of the claimed relationship, prior to its cessation, as being consistent with a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they were living together, or did not live separately and apart on a permanent basis. Consequently, the Tribunal gives only some weight, favourable to the applicant, to its finding regarding this aspect.

The nature of the household

24.      Any joint responsibility for the care and support of children: Although the several application forms lodged by the applicant state that neither she or the former sponsor have any children from either previous relationships or the claimed relationship under consideration, the Tribunal notes that the former sponsor’s Statutory Declaration of 20 July 2016 refers to his two sons and grandchildren. It would appear that despite the incorrect statements in the application forms, the former sponsor has adult children. Given that they are independent, the Tribunal finds that there has been no joint responsibility for the care and support of children.

25.      The living arrangements of the applicant/sponsor: The various application forms of the applicant lodged with the Department and provided to the Tribunal give an address of Bougainvilia Street, Nightcliff, Northern Territory, as her address from the time of her marriage until a Form 929, lodged 9 August 2016, provides a change of address to a residence in Smith Street, Larrakeyah, Darwin, Northern Territory. The Tribunal notes also that the bank statements described in paragraph 20 above record Bougainvilia Street as the address of the applicant but curiously, continue to do so after the acknowledged cessation of the claimed relationship, right through to the final bank Statements provided for December 2017. Given that this was not the address of the applicant after early August 2016, this raises some questions in the mind of the Tribunal as to whether it was ever the residential address of the applicant. The address in Bougainvilia Street is given also as the address of the former sponsor. Notwithstanding its concern above, the Tribunal accepts and finds that the applicant and sponsor shared a house from May 2014 until August 2016.

26.      Any sharing of responsibility for housework: There is conflicting evidence regarding this circumstance. Both the Statutory Declaration of the former sponsor, dated 20 July 2016 and the applicant’s Information for Permanent Stage Processing document, lodged 25 July 2016, claim that they share cleaning and general household chores, as well as cooking. However, the applicant’s Statutory Declaration of 15 August 2017 claims that regularly she had to come home directly when she finished work to start cooking for the former sponsor and do the housework and that she felt like a servant. The Tribunal finds that there was some limited sharing of responsibility for housework.

27.      Household aspects conclusion: The Tribunal concludes that the applicant and sponsor have no joint responsibility for the care and support of children, that they shared a house from May 2014 until August 2016 and that they had a limited sharing of responsibility for housework.  Consequently, the Tribunal gives only some weight to the evidence regarding the nature of the household aspects as potentially indicating a relationship, prior to the cessation of the claimed relationship, as being one with a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they were living together, or did not live separately and apart on a permanent basis.

The social aspects of the relationship

28.      Whether the persons represent themselves to other people as being married to each other:

(a) The applicant provided fifteen Statutory Declarations regarding her relationship with the former sponsor about which the Tribunal notes the following:

(1) The first of these was a Form 888 Statutory Declaration, executed by Raymond Ellen, a work mate and friend of the former sponsor, on 6 May 2014 which, inter-alia, states that he witnessed the wedding of the former sponsor and applicant on 24 May 2014. While the Tribunal notes the discrepancy between these dates, it makes no adverse finding regarding the evidence of Mr Ellen.

(2) The second and third documents are Form 888 Statutory Declarations, executed on 8 July 2014 and 10 July 2014, shortly after the wedding of the applicant and former sponsor and immediately prior to the lodgement of the visa application, by a workmate and acquaintance, respectively, of the former sponsor. Both mention having attended the wedding.

(3)Two further Form 888 Statutory Declarations dated 14 and 18 July 2016, respectively, are from friends of the former sponsor and mention having attended the wedding.

(4) Of ten standard Statutory Declarations, six executed on 7 April 2017, one on 9 April 2017, one on 10 April 2017 and two undated, only three mention having attended their wedding, a further two state that they “understood” that the applicant and former sponsor were married, while five made no mention of their marriage.

(b) The applicant provided two letters from friends, one dated 23 January 2017 which refers to her “husband” and one dated 3 February 2017 which refers to her “marriage.”

(c) On the evidence before it, the Tribunal finds that, as a consequence of their wedding, close friends of the applicant and sponsor were aware of them being married to each other but there is no evidence before the Tribunal that, beyond the fact of their wedding ceremony, they have represented themselves to other people as being married to each other.

29.      The opinion of friends and acquaintances about the nature of the relationship:

(a) The applicant told the Tribunal Hearing that, prior to the claimed relationship which is the subject of this current Decision, she had first met the former sponsor in April 2009 during one of his then regular visits to Vietnam. She said that having spent time together during four subsequent visits by the former sponsor to Vietnam and three visits by her to Australia, in May 2012, the former sponsor sponsored her application for a Prospective Marriage visa. She said that this sponsorship was withdrawn unilaterally by the former sponsor later in 2012 and the visa was never issued. Departmental records confirm the lodgement of a Prospective Marriage visa application for the applicant on 2 May 2012 and that the former sponsor attended the Darwin office of the Department on 16 November 2012 and provided a Statutory Declaration declaring that the relationship had broken down and that he wished to withdraw his sponsorship for the application. Consequently, the Prospective Marriage visa was never issued to the applicant. The Tribunal notes that this withdrawal of sponsorship, effectively cancelling the visa application, occurred only eight days after the applicant returned to Vietnam from a visit of approximately three months to Australia. In her signed statement of 8 February 2017, the applicant said she was shocked that the former sponsor had cancelled his sponsorship of that visa without talking to her, had cut off all contact with her and wanted her to find another man. There was an extended period of time between the sponsor clearly bringing an end to that relationship and May 2014, from when the applicant described the claimed new relationship, which is the subject of this Decision, as being genuine and continuing. This fact, combined with the negative aspects of this more recent claimed relationship from its beginning, as described by the applicant and recorded in paragraph 31(b) below, compared with what was, apparently, a relatively benign relationship leading up to the Prospective Marriage visa application, leads the Tribunal to find that the latter claimed relationship is completely different in nature and separate from the previous relationship.

(b) This is relevant to the Tribunal’s consideration of the opinion of friends and acquaintances about the nature of the relationship, for which the documents to which reference is made in paragraph 28 above are the principal source of information available to the Tribunal.

(c) Analysis of some of these documents reveals that they are not referring to the period of time relating to the claimed relationship which is the subject of this Decision but to the period of time relating to the previous application for the Prospective Marriage visa. It is not satisfied that descriptions which have been made by friends and acquaintances which relate to the time period of the earlier relationship are accurate descriptions of the claimed relationship which is the subject of this Decision.

(d) This is exemplified by the document described in paragraph 28(a)(1), which refers to the former sponsor’s attitude to the applicant when she “goes back to Vietnam.” The Tribunal finds that this is a reference to the relationship during the time of the previous application for the Prospective Marriage visa. As described in paragraph 29(a) above, prior to that previous application, the applicant made several visits to Australia, so it is that period to which this Form 888 appears to be making reference, as the applicant did not make any trips back to Vietnam between the commencement of the claimed relationship which is subject of this current Decision and the date of this Form 888. Therefore, the Tribunal does not accept the document as an accurate description of the claimed relationship which is the subject of this current Decision.

(e) The 8 July 2014 document, to which reference is made in paragraph 28(a)(2) above, similarly appears to refer mostly to the period relating to the previous Prospective Marriage visa application, including the unsuccessful attempts by the applicant to contact the former sponsor after the sponsor had withdrawn sponsorship. Examination by the Tribunal of this Declaration leads it to find that the only references to the claimed relationship which is the subject of this Decision, are the author’s attendance at the wedding “commitment” of the applicant and former sponsor and the former sponsor reporting the absence of medical problems since the applicant had been back in Australia, leading him to “admit” that he is happy. The 10 July 2014 document, described in paragraph 28(a)(2), also mixes references to the period relating to the previous application with that of this Decision. It does state belief in the post-wedding genuineness of the claimed relationship but fails to give any reasons for this belief beyond the fact that the former sponsor’s family “love her very much.” 

(f) Of the documents described in paragraph 28(a)(3) above, that of 14 July 2016, to the which extent that it comments on the claimed relationship under consideration in this Decision, describes it as “appear(ing) normal and ongoing” and “a happy relationship.” That of 18 July 2016 states “It is my belief that Colin and Hien have a very firm and stable relationship….. Have establish (sic) a very strong and I believe lasting bond between them.” The Tribunal notes that the dates of these two statements are very close to the dates when first, as described in paragraph 32 below, the applicant told the former sponsor that she had been in a sexual relationship with another man and secondly, which she acknowledges as the date of the cessation of the claimed relationship with the former sponsor. Furthermore, the 14 July 2016 statement is made by the person with whom the applicant soon thereafter had a series of self-incriminating text exchanges regarding the other relationship. All of the facts regarding these two statements are of concern to the Tribunal. The Tribunal finds that, because of the concerns described above in relation to each of the documents, it is not satisfied as to their credibility as descriptions of the true nature of the relationship between the applicant and former sponsor, at the time they were written.

(g) The documents described in paragraph 28(a)(4) above consist of only one or two sentences. The Tribunal finds that seven of them simply describe the applicant/former sponsor relationship as “real” or “genuine” or “true,” without giving any reasons for these conclusions. Two simply refer to knowing the applicant and former sponsor and attending their wedding, while the other one simply mentions seeing them on two social occasions. The Tribunal finds that these documents fail to provide any reliable insight into the nature of the relationship between the applicant and former sponsor.   

(h) The 23 January 2017 letter described in paragraph 28(b) above, gives little insight into the nature of the applicant/former sponsor relationship, other than describing the applicant as being “stressful” and “depressed,” which the Tribunal interprets as it being the assumption of the author of this letter that the applicant’s negative state of mind arose from the nature of the claimed relationship. However, the letter is more oriented towards giving the applicant a good character reference for the purpose of her visa application than describing the nature of her previous relationship with the former sponsor. The letter of 3 February 2017, described also in paragraph 27(b) above, refers also to the stressful nature of the claimed relationship, that the applicant has “never been happier than now,” that is, since the cessation of the claimed relationship and similarly, is oriented towards giving the applicant a good character reference for her visa application. However, significantly, this letter says that “After arriving in Australia Hien gave her all to their marriage but was treated less than a wife also worse than a servant. A prisoner to serve only Collin’s (sic) every need despite her own needs” and “Hien thought she was brought to Australia as a wife but I believe Colin brought her here to house keep and to serve a very sick man as he has cancer.”  

(i) Overall, the Tribunal finds that the evidence regarding the opinion of friends and acquaintances regarding the nature of the relationship between the applicant and former sponsor gives little insight into its nature between May 2014 and August 2016. Statements by some refer only to the period of a previous relationship, not to the period of the claimed relationship which is the subject of this Decision (paragraph 29(b) above); others do not draw a distinction between the nature of the relationship at that previous time and at the time of this subsequent claimed relationship (paragraph 29(c) above); others are in clear conflict with evidence regarding the nature of the relationship at the time of being written, (paragraph 29(d) above); while still others are very limited in their comments on the relationship (paragraph 29(e) above); and the final group attribute negative characteristics to the relationship (paragraph 29(f) above).

30.      Any basis on which the persons plan and undertake joint social activities:  

(a) In her Information for Permanent Stage Processing form, dated 25 July 2016, the applicant refers to a significant number of social activities which she claims to share with the former sponsor, ranging from going out to meals as a couple and with friends, especially Vietnamese friends,  to sometimes accompanying the former sponsor to the local Sports Club, to attending Australian Rules football matches and other sporting activities. However, it appears to the Tribunal that, to some degree, the applicant is conflating the social activities with the former sponsor prior to the lodgement of the withdrawn Prospective Marriage visa application with social activities relating to the claimed relationship which is the subject of this Decision.

(b) The former sponsor’s Statutory Declaration of 20 July 2016 makes similar but briefer, claims regarding social activities.

(c)(i)The applicant provided a large number of photographs purporting to relate to social activities. While a significant number of those were of her wedding, most related to time periods associated with the previous cancelled application and only a few to the time periods associated with the claimed relationship which is the subject of this Decision. Among these were two captioned as being taken at Christmas time, 2014; two of the former sponsor captioned as being with the applicant’s family in Vietnam in 2014; one of the applicant and former sponsor captioned as being with their neighbour in 2015; two of the applicant and former sponsor captioned as being in Melbourne during the former sponsor’s medical treatment in 2015; and one of the applicant and former sponsor on the Rottnest Island ferry captioned as being 2016.
(c)(ii) However, also there are two photographs of the applicant and former sponsor captioned as being with the applicant’s family in Vietnam in 2015. The Tribunal noted that the former sponsor’s official Movement Record shows that he did not leave Australia at any time during 2015. Therefore, the Tribunal had concerns about the accuracy of the captions on these photographs in particular but consequently, also of all of the photographs’ captions, as describing accurately when they were taken and therefore, whether they provided evidence of the claimed relationship which is the subject of this Decision, rather than of the previous relationship. In accord with s.359A of the Migration Act, on 29 January 2020, the Tribunal wrote to the applicant inviting her to comment on or respond to certain information which it considered would, subject to her comments or response, be the reason, or part of the reason, for affirming the decision under review, noting that the Tribunal had not made up its mind about the information. The letter provided the particulars of the information as follows: “In reviewing the evidence in the course of finalising its decision, the Tribunal notes that one of the photographs purporting to demonstrate the nature of the relationship is captioned ‘Colin and Hien’s family in a Vungthau 2015” and another, “Colin and Hien at dinner with Hien’s sister and friend in Vungthau 2015.” The Tribunal notes that the former sponsor’s official Movement Record shows that he did not leave Australia at any time during 2015.” The Tribunal letter said further that: “This information is relevant to the review because the Tribunal has concerns that the captions on these photographs may be inaccurate and therefore there may be inaccuracies in other photographs’ captions as well, negating their significance as evidence. If we rely on this information in making our decision, we may affirm the decision under review. You are invited to give comments on or respond to the above information in writing….by 11 February 2020.”
(c)(iii) On 10 February 2020, the Tribunal received an email from the applicant’s agent attaching a Statutory Declaration signed by the applicant, together with copies of the photographs, describing them as being provided with the “correct captions.” The Statutory Declaration said as follows: “1. I submitted many photographs in my application to prove that the relationship was genuine and continuing. 2. The three photographs that were of concern to the Administrative Appeals Tribunal had captions explaining the location, the occasion and the date in which they were taken. They were all described by myself and I was recalling the detail to the best of my ability. 3. The first photograph was described as ‘Xmas with Colin and Hien family in Xmas 2014.’ The correct date should be 2009. 4. The second photograph is described as ‘Colin and Hien at dinner with Hiens (sic) sister and friend in Vungthau 2015.’ The correct date is 2012. 5. The third photograph is described as ‘Colin and Hien’s family in Vungthau 2015.’ The correct date is 2014. 6. I made the mistakes due to confusion and this was not due to any deceitful or other reason. I was trying to recollect a whole range of events over a long period and had made a mistake. I submitted a significant number of photos and was trying to provide a timeline represented by multiple years of events.  
(c)(iv) The Tribunal notes that the series of photographs provided to it originally contained large print, typed captions, whereas the copies returned with the Statutory Declaration contained no such typed captions but hand written descriptions apparently written at the time of doing the Statutory Declaration. Previously, the Tribunal had assumed that the typed written captions were added to each photograph at or around the time they were taken. Based on the applicant’s Statutory Declaration, it appears to the Tribunal that the captions were added at some later time, from the applicant’s “recollections,” perhaps even as late as just prior to them being provided to the Tribunal in the first instance, The Tribunal notes that the photograph to which the applicant makes reference in paragraph 3 of her Statutory Declaration was not one for which the caption was queried in the Tribunal’s letter. However, the fact that the applicant was relying on recollection which said originally that this photograph was taken at Christmas 2014 and now says it was a photograph taken at an unidentified function at ’Waterfront Dinner,’ some time in 2009, which is a difference of some five years, raises serious concerns for the Tribunal about the recollections of the applicant as reflecting the accuracy of any of printed captions on the photographs originally provided to it. As regards the two photographs which were the subject of the Tribunal’s queries to the applicant, the Tribunal notes that the hand written description on the photograph to which reference is made in paragraph 5 of the applicant’s Statutory Declaration, as provided with that Declaration, says Vietnam Café, with the year 2012 crossed out and initialled and the year 2014 written next to it. It appears to the Tribunal that even at the time of writing these descriptions in response to the Tribunal’s query, the applicant’s recollections were uncertain.
(c)(v) Given the above facts, while the Tribunal accepts that the applicant, as described in paragraph 6 of her Statutory Declaration, “made the mistakes due to confusion and….not to any deceitful….reason. I was trying to recollect a whole range of events over a long period and had made a mistake” and as described in paragraph 2, “was recalling the details to the best of (her) ability,” it has concerns regarding the reliability of the memory of the applicant and therefore, of the accuracy of the years included in the captions contained on all of the photographs provided to the Tribunal. However, as described in paragraphs 27 and 29 (a) above, the Tribunal does accept that the applicant and former sponsor shared a house together and shared some social activities during the period of this claimed relationship and therefore, it accepts also the likelihood that some photographs would have resulted from these circumstances. Therefore, it gives them some weight as evidence of the social activities of the applicant and sponsor during the time period relevant to the claimed relationship.

(d)The Tribunal does accept that the applicant and former sponsor travelled to Vietnam together soon after their wedding in 2014, as this travel is confirmed by reference to their respective official Movement Records. It accepts also that they may have spent some time together in Vietnam during March 2016 as, although according to their respective official Movement Records, they departed from Australia some time apart, they are recorded as returning on the same flight on the same day. 

(e) On the evidence before it, the Tribunal finds that during the period of the claimed relationship which is the subject of this Decision, the applicant and sponsor shared a limited range of social activities.

31.      Social aspects conclusion: Overall, the Tribunal finds that the applicant and sponsor shared some social activities and the fact of their marriage was recognised by some close friends but there is no evidence before it that they represent themselves to others as being married and the written opinion of friends and acquaintances provides little insight into the nature of their relationship. In weighing these circumstances, the Tribunal gives only some weight to the cumulative evidence regarding this aspect as being consistent with a mutual commitment to a shared life to the exclusion of all others, being a genuine and continuing relationship and that they are living together, or not separately and apart on a permanent basis.

The nature of the persons’ commitment to each other

1. The duration of the relationship:

   (a) The Tribunal accepts that the applicant and former sponsor have known each other since 2009 and had lodged a Prospective Marriage visa application in 2012 which was withdrawn later in 2012 by the former sponsor who withdrew his then sponsorship for the visa, as described in more detail in paragraph 29(a) above. In her signed statement of 8 February 2017, the applicant said she was shocked that the former sponsor had cancelled his sponsorship without talking to her, had cut off all contact with her and wanted her to find another man.

   (b) As regards the relationship which is the subject of this Decision which, as described in paragraph 20(a) above, the applicant claimed commenced as a genuine and continuing relationship on 24 May 2014, in the same statement, the applicant said that when she returned to Darwin in March 2014 she noticed a difference about the former sponsor and his behaviour, reflected as anger, scorn and rude language towards her but she was in love and thought only of being next to the man she loved, thought his cancer may be the cause of this behaviour, tried to convince herself to forget it and continue like nothing had happened, while enjoying some subsequent happier times in between this behaviour of the former sponsor. The former sponsor initiated cessation of the claimed relationship and removal of the applicant from the shared residence early in August 2016. Some time prior to that, as described in more detail below in this paragraph, the applicant acknowledges having entered into a sexual relationship with another man.

   (c)  In a letter to Hon. Peter Dutton MP, Minister for Immigration and Border Protection, dated 29 April 2017, psychologist, Hope Rigby, relates statements made to her by the applicant similar to those above. She reports the applicant as telling her that by 2012 the nature of her previous relationship with the former sponsor changed quite significantly, that she felt “like being a full-time nurse,” not being in a happy and equal relationship with him and being shocked when he withdrew sponsorship for the Prospective Marriage visa application. The letter then says “It later transpired that Mr Colin Hewton’s cancer had gone into remission at this point in time and he no longer needed Hien to care for him as a full-time nurse.” The letter then states that when the applicant again arrived in Australia to commence the new claimed relationship which is the subject of this Decision, “that straight away she noticed that Mr Hewton had changed. He was easily upset and became angry at Hien for no apparent reason, with Hien stating ‘he wasn’t the same person I had known.’ Hien reports this as the time when the abuse started.” The letter then goes on to outline continuing behaviour by the former sponsor, also described by the applicant as abuse. This included giving her instructions to “have visual and graphic sexual relations with other men.”      

   (d) At the Tribunal Hearing, considerable time was spent exploring with the applicant, in detail, the nature of her relationship with the former sponsor. The applicant acknowledged entering into a sexual relationship with another man named Steve, who was a friend of the former sponsor and among several to which he had referred her to undertake cleaning work in mid-2015. When asked by the Tribunal at the Hearing when the sexual relationship with Steve commenced, initially the applicant said in 2015 and when the Tribunal sought more specific information regarding the timeframe of this relationship, the applicant became discursive and meandering in her responses, rather than providing specific answers to the specific questions she was being asked. Subsequently, at one point, the applicant claimed the sexual relationship with Steve commenced near the end of 2015 and at another point that it commenced in February 2016 and ended when Steve moved from Darwin to Alice Springs in April or May 2016. The Tribunal asked the applicant a series of questions about a letter, provided to the Department apparently by the former sponsor, which she had written to Steve. The Tribunal said to the applicant that these questions were being put to her as a s.359AA issue. The Tribunal explained that this meant it was giving to her clear particulars of the information contained in the letter and the Tribunal’s concerns about it, why the information was relevant to the Tribunal review, that, depending on its assessment of the responses given by the applicant to the information and concerns, it would be the reason or one of the reasons for the Tribunal to affirm the delegate’s decision and that the applicant could seek additional time, if desired, to respond to the information. The Tribunal satisfied itself that she understood this explanation. The contents of the letter indicated the relationship with Steve had been longer than acknowledged in her previous answers, professed her love for him, her expectation that it would be a continuing long-term relationship and asked him not to leave Darwin. The applicant did not dispute the content of the letter but continued to assert that her relationship with Steve had been only for a short time. When questioned further, she said that she had written it in April 2016 while Steve was still living in Darwin but was about to move to Alice Springs.

   (e)(i) Also, explaining it as an s.359AA matter, the Tribunal raised with the applicant the content of a series of text exchanges, similarly provided to the Department, between her and a man referred in them as Ian, which she acknowledged was Ian McLay, the author of one of the Form 888’s to which reference is made in paragraphs 28 and 29, above. This exchange of texts occurred on 6 August 2016. The Tribunal commenced putting to her, her texts to Ian, from whom she was seeking help after Steve had deserted the relationship, which included the following, in relation to Steve: “I believe his heart lives true with me.” “He promise with me want to live together with me.” “Please don’t let Colin see SMS I send.” “Yesterday I ask Steve why he cheat me? And cheat my love for the long times? “If I and him short times than I do not trust him.” The Tribunal asked the applicant why she insisted that her relationship with Steve was only for a short time when these texts indicated, like the letter, that it had been a longer relationship. The applicant’s agent intervened that he had not seen these texts and requested that they be sent to him so that the applicant could provide a response. The Tribunal agreed to this and asked for responses to all of the texts in the complete document initiated by the applicant. The Tribunal explained that it was offering the applicant and her agent the opportunity to respond to this information in writing under the provisions of s.359A, which had the same consequences as s.359 AA. The Tribunal notes that texts include statements such as:“Steve and me for love the one year so that why I trust him lives true with me.” “And he always say he will waiting for me leave Colin and come to live with him” “I love Steve and make hurt Colin.” The applicant’s agent undertook to provide a response by shortly after Christmas to this text document.
   (e)(ii) The Tribunal notes that the letter of psychologist Hope Rigby to Minister Dutton, to which reference is made in paragraph 32(c) above, at page 5, refers to a “brief sexual encounter with her male friend” which had occurred “in March of 2016.” Hope Rigby “hypothesises” about this and about other aspects of the applicant’s claimed relationship with the former sponsor. However, even the applicant acknowledged at the Tribunal Hearing, as well as previously to the Department, that this relationship commenced in 2015, so to describe it as “brief” and as having occurred “in March of 2016” is strongly at variance with the facts. It raises concerns on the part of the Tribunal as to the extent of Hope Rigby’s testing against known facts the veracity of the claims made to her by the applicant during her assessment.  
   (e)(iii) On 22 January 2019, the Tribunal received the further submission from the applicant’s agent and it failed to include any reference or response to this text document and no such response has been received at the time of this Decision.
   (e)(iv) The covering email to the 22 January 2019 submission asserted that while the applicant accepted having had a sexual relationship with another person, the family violence perpetrated predated that relationship and occurred while the applicant and sponsor were in a genuine and continuing relationship. Similarly, the attached submission repeated this assertion and repeated the applicant’s oral claim at the Hearing, described in paragraph 32(d) above, that the sexual relationship with Steve commenced in late 2015 and that this was the earliest point at which it could be said that either party lost commitment in the relationship. This assertion is contrary to the evidence described in paragraph 32(d) above, that the applicant wrote to Steve in April 2016, when he was terminating the relationship and one of the texts in paragraph 32(e)(i) above, that “Steve and me for love the one year.”  On the evidence before it, the Tribunal finds that the applicant had been involved in a sexual relationship with a person other than the former sponsor for a period of approximately twelve months, possibly from April 2015 but certainly from mid-2015 to mid-2016 and not from late 2015, as she claimed.
   (e)(v) The balance of the 22 January 2019 submission submitted that there was a genuine and ongoing married relationship between the applicant and sponsor prior to late 2015, referring to various documents which had been supplied to the Department or Tribunal, to which documents the Tribunal has given attention and consideration, in the course of this Decision and as described in various sections of this Statement of Decision and Reasons. The Tribunal notes also that the submission gives particular priority to the photographs provided, the first listed being described as “Photographs of Mr Hewton and Ms Vo while visiting family in Vietnam (2015)” which, as described in paragraph 30(c), subsequently have been acknowledged as incorrectly dated, consequent on which the Tribunal has given little weight to photographs as evidence of the social aspects of the claimed relationship which is the subject of this Decision.

   (f) Considerable time was spent by the Tribunal on questions regarding the cessation with the former sponsor of the claimed relationship which is the subject of this Decision. For a period, the applicant was continuously adamant that she had confessed her relationship with Steve to the former sponsor on 4 July 2016 and that consequently, he had required her to cease living at the Bougainvilia residence on 17 August 2016, which was six weeks later. She told the Hearing that she had been required to leave the residence two weeks after her confession to the former sponsor and the Tribunal put to her that this must have been around 17 July 2016 not 17 August 2016. The applicant continued to insist that she had confessed to the former sponsor on 4 July 2016, had not left the residence until 17 August 2016 but that she had only stayed there two weeks after the confession. Eventually, her agent intervened and referred to the applicant’s letter to the Department, dated 8 February 2017, in which she states telling the former sponsor on 4 August 2016 of the relationship with Steve. The Tribunal asked the applicant whether she stood by this statement in that letter regarding the date or whether she wished to amend it to 4 July 2016, which she had been insisting until then at the Hearing, was the relevant date. She said that 4 August 2016 was the correct date, which makes sense of her claim to have remained at the former sponsor’s residence for only two weeks after her confession but she could not explain why she had been so insistent that it was 4 July 2016.

   (g) The Tribunal then put to the applicant the content of an email from the former sponsor to the Department dated 10 April 2017, also explaining that this was an s.359AA matter. In the email he relates a conversation with Trang Macarthur, the wife of his friend, who told him that when she and the applicant were in Vietnam that the applicant had told her “she was just after the opportunity to come to Australia.” Under questioning from the Tribunal the applicant denied having ever said this to Trang Macarthur and claimed that such a statement by the former sponsor was a consequence of him seeking to do anything to deny her receiving a permanent visa. It was this letter to the Department to which was attached the above-mentioned letter from the applicant to Steve and the texts to Ian, The applicant then claimed at the Hearing that, following the cessation of the claimed relationship, she had become aware that the former sponsor would do anything to prevent her obtaining her permanent visa. Again, explaining the following as an s.359AA matter, the Tribunal then sought from the applicant a response to the content of several earlier emails which the former sponsor had sent to the Department, dated 8 August 2016, 10 August 2016, 7 December 2016 and 21 December 2016, which included advice regarding the cessation of the claimed relationship and that the applicant would shortly be vacating the Bougainvilia Street residence but also encouraged the Department to issue her permanent visa on the basis that she was a good worker, self-sufficient and would have a better life in Australia, rather than it issuing the visa on the basis of a relationship with him. Again, the agent intervened, having not seen these emails and sought the opportunity for the applicant to consider them and reply in writing, along with the other responses to which reference has been made. The Tribunal agreed to allow this opportunity under the provisions of s.359A. The Tribunal notes that no such response was received with the 22 January 2019 submission or subsequently.

   (h) In the context of the evidence adduced in paragraphs 32(a) to (g) above, regarding the former sponsor’s attitude from the commencement of the claimed relationship which is the subject of this Decision and the evidence regarding the applicant’s relationship with Steve, the Tribunal has concerns about the statements made by the applicant in pages 7 to 10 of her Information for Permanent Stage Processing form lodged with the Department on 25 July 2016. The Tribunal finds that the statements purport to show that the relationship between her and the former sponsor meets s.5F(2)(a)-(d) and are consistent with the requirements of s.5F of the Act. In particular, the applicant answers Yes to the question “Do the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others?” On the evidence before it, the Tribunal finds that this answer was incorrect at that time.

   (i) On the evidence before it, the Tribunal finds that the applicant and former sponsor had known each other since 2009, had a previous relationship which ended in 2012 and claimed to have commenced a relationship which is the subject of this Decision in May 2014. It finds further, from the evidence above, that while the applicant may have hoped that this relationship was genuine and continuing, it is clear from the circumstances surrounding the cessation of the previous relationship and the behaviour of the former sponsor from the very commencement of this subsequent claimed relationship, that his intention was for a relationship with the applicant as a nurse/carer, not a genuine spousal relationship.

   33.      The length of time during which the persons have lived together: On the evidence before it, the Tribunal accepts that the applicant and former sponsor shared a house together from at least the date of their wedding in May 2014 until early August 2016, a period of just over twenty-six months.

   34.      The degree of companionship and emotional support the persons draw from each other: As described in paragraph 32(b) above, in her statement regarding the unsatisfactory behaviour of the sponsor from the time she returned to Darwin in March 2014, the applicant thought his cancer may be the cause of this behaviour, tried to convince herself to forget it and continue like nothing had happened. However, there is no evidence before the Tribunal that supports the attribution of the former sponsor’s behaviour to his cancer. Nor is there any evidence that the former sponsor drew any degree of companionship and emotional support from the applicant, despite benefiting from care for his physical health problems, as described in his Statutory Declaration dated 20 July 2016. As described in paragraph 32 above, while the applicant enjoyed some subsequent happier times in between the former sponsor’s unsatisfactory behaviour, her friend’s letter, described in paragraph 29(h), said that the applicant had “never been happier than now,” that is, after the claimed relationship had ceased. It is clear to the Tribunal that far from deriving companionship and emotional support from the former sponsor, from the commencement of this claimed relationship, it was a source of stress, disappointment and sadness which, she claimed, caused her own psychological health issues. On the evidence before it, the Tribunal is not satisfied that the applicant and former sponsor drew any degree of companionship and emotional support from each other.

   35.      Whether the persons see the relationship as a long-term one: Given the evidence discussed in a number of the foregoing paragraphs and the consequent findings of the Tribunal regarding that evidence, particularly its findings regarding the attitude of the former sponsor to the relationship from its commencement and the subsequent involvement of the applicant in a relationship with another party, which she expected to be for the long-term, the Tribunal is not satisfied that either of the persons saw the relationship as long-term.

   36.      Commitment conclusion: In weighing the several circumstances regarding the nature of the person’s commitment to each other, the Tribunal finds that the length of time during which they shared accommodation moderately favours a positive conclusion. However, given the evidence regarding the combinations of behaviour and attitude of the former sponsor right from the commencement of the claimed relationship, the Tribunal is not satisfied that he had a commitment to a genuine relationship. Furthermore, irrespective of the initial attitude and hopes of the sponsor regarding the claimed relationship, it is clear from the evidence that for approximately twelve months prior to leaving the residence shared with the former sponsor, the applicant had abandoned a commitment to an exclusive relationship with the former sponsor and had entered into what she expected to be a long-term relationship with another man, rather than the former sponsor. On weighing the evidence before it, it is the conclusion of the Tribunal also that the claimed relationship was much more a source of emotional distress to the applicant than one of companionship and emotional support. Overall, on the evidence before it, the Tribunal is not satisfied that the nature of their commitment, prior to the cessation of the claimed relationship, was one which demonstrated the relationship as being a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they lived together, or not separately and apart, on a permanent basis. The Tribunal gives substantial weight to this aspect.

   Any other relevant considerations

   37.      The Tribunal notes the reference in the agent’s submission of 22 January 2019 to the granting by the Department of the Subclass 820 visa. However, consequent on an appeal, it is the role of the Administrative Appeals Tribunal to undertake a complete review of the application from the beginning, including consideration of facts which may have been present but not evident at the time of the Department’s decision. The Tribunal notes also that the 22 January 2019 submission from the applicant’s agent included a claim that family violence had occurred during the relationship. While the Tribunal notes that it has not received all of the statutorily-required documentation for a non-judicially determined claim of family violence, the absence of this documentation has no effect because the consequence of its findings above and Decision below regarding the nature of the relationship between the applicant and former sponsor does not require it to consider the family violence claims any further.

   Overall conclusion

   38.      In summary, having carefully considered and weighed the evidence regarding all of the circumstances of the relationship, as described in the paragraphs above, the Tribunal puts only some weight on its findings regarding the financial aspects of the relationship, the nature of the household and the social aspects of the relationship as being consistent with a genuine relationship and finds that this is outweighed strongly by the substantial weight it gives to its findings regarding the nature of the persons’ commitment to each other as being inconsistent with a genuine spousal relationship.

   39.      For the above reasons, having carefully considered each of the prescribed factors under s.5F(2)(b) to (d),the Tribunal is not satisfied that the visa applicant and the sponsor were in a genuine and continuing relationship and had a mutual commitment to a shared life together to the exclusion of all others and lived together, or not separately or apart, on a permanent basis, prior to the claimed relationship ceasing.

   40.      Given these findings the Tribunal it is not satisfied that the requirements of s.5F(2) are met, prior to the claimed relationship ceasing.

   41.      Therefore, the applicant does not meet cl.801.221(6)(b) of the Regulations.

   42.      Consequently, the applicant does not meet cl.801.221(6) of the Regulations.

   43.      Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221(2A), (3), (4) or (5).

   44.      For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

   DECISION

   45.      The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

   Grant Chapman
   Senior 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).